Expenses; Termination Fees. (a) Except as set forth in this Section 9.2, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 6 contracts

Samples: Merger Agreement (Aml Communications Inc), Merger Agreement (Aml Communications Inc), Merger Agreement (Aml Communications Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, ~~all fees~~ Section 1.6(e), Section 5.4(b), and ~~expenses incurred in connection with this Agreement and~~ Section 5.10, the ~~Transactions~~ Transaction Expenses shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided that Parent and the Company shall each pay one-half of the fees and expenses incurred in relation to the printing and filing with the SEC of the Proxy Statement and any amendments and supplements thereto and paid to a financial printer or the SEC. It is understood and agreed that all fees and expenses incurred or to be incurred by or payable by each Party in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by such Party in cash at or prior to the Closing. (b) If If: (i) (A) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(e) or Section 9.1(h), (B) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement (which shall not have been withdrawn), and (C) within twelve (12) months after the date of such termination, Parent consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (B); (ii) this Agreement is terminated by the Company pursuant to Section 9.1(f) (or, at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 9.1(f)); or (iii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~9.1(j); then in the case of a termination pursuant to Section 9.3(b)(i) or Section 9.3(b)(ii), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company an amount equal to $~~400,000~~6,000,000, and in the case of a termination pursuant to Section 9.3(b)(iii), Parent shall pay to the Company an amount equal to $10,000,000 (each, the “Company Termination Fee”), within three (3) Business Days of consummation of such Subsequent Transaction or termination of this Agreement, as applicable. (c) If If: (i) (A) this Agreement is terminated ~~by Parent or the Company~~ pursuant to Section 9.1(b) ), Section 9.1(e), or Section ~~9.1(d~~9.1(i), (iiB) at an Acquisition Proposal with respect to the Company shall have been publicly announced or disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement but prior to ~~the time of~~ the termination of this Agreement ~~an Acquisition Proposal~~ (which shall not have been ~~disclosed, announced, commenced, submitted or made~~withdrawn), and (~~iii~~C) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an~~ the Company consummates a Subsequent Transaction in respect of the Acquisition ~~Transaction~~ Proposal referred to in clause (B); or (ii) this Agreement is ~~consummated or a definitive agreement relating~~ terminated by Parent pursuant to ~~an Acquisition Transaction~~ Section 9.1(g) (or, at the time this Agreement is ~~entered into~~terminated, the Parent had the right to terminate this Agreement pursuant to Section 9.1(g); then the Company shall pay to Parent ~~the Expense Payment and a non-refundable fee in the~~ an amount of equal to $~~600,000~~ 6,000,000 (the “Parent Termination Fee”) ~~in cash on or prior to the earlier of the date~~ within three (3) Business Days of consummation of such ~~Acquisition~~ Subsequent Transaction or ~~the date of execution of such definitive agreement; provided, however, that, solely for purposes~~ termination of this ~~Section 9.3(b)~~Agreement, ~~all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~as applicable.” (d) If this Agreement is terminated by either Parent or the Company pursuant to Section 9.1(e), ~~or if~~ then Parent shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement ~~is terminated~~ and the Contemplated Transactions, up to a maximum of $1,500,000, by ~~Parent or~~ wire transfer of same-day funds within three (3) Business Days following the date on which the Company ~~pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay~~ submits to Parent ~~the Fee~~ true and ~~the Expense Payment in cash~~correct copies of reasonable documentation supporting such expenses. (e) ~~If this Agreement is terminated by~~ Any Company Termination Fee or Parent ~~pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to~~ Termination Fee due under this Section 9.3 shall be paid ~~and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part~~ by wire transfer of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h)~~ same day funds. If ~~either party~~ a Party fails to pay when due any amount payable by it under this Section 9.3, ~~then:~~ then such Party shall (i) ~~such party shall~~ reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ such Party of its rights under this Section ~~9.3;~~ 9.3 and (ii) ~~the first party shall~~ pay to the other ~~party~~ Party 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 the ~~other party~~ Company in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America, N.A.~~ published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (f) The Parties agree that, (i) subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the Company Termination Fee on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(f) shall limit the rights of Parent and Merger Sub under Section 10.11. (g) The Parties agree that, (i) subject to Section 9.2, payment of the Parent Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement, it being understood that in no event shall the Company be required to pay the Parent Termination Fee on more than one occasion and (ii) following payment of the Parent Termination Fee (x) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(g) shall limit the rights of the Company under Section 10.11. (h) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the applicable Party in the circumstances in which such amount is payable.

Appears in 5 contracts

Samples: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)

Expenses; Termination Fees. (a) Except as otherwise expressly set forth in this ~~Section 9.2~~Agreement, all fees and expenses incurred in connection with this Agreement and any of the Merger Transactions (including fees and expenses payable to Representatives) shall be paid by the party hereto incurring such fees and expenses, whether or not the Merger is Transactions are consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that: (i) Parent shall bear all fees and expenses, ~~solely for purposes~~ other than attorneys’ fees, incurred in connection with any filings required by the parties hereto of applicable pre-merger notification and report forms relating to any of the Merger Transactions under the HSR Act and any filings required of any notice or other documents under any applicable foreign antitrust law or regulation; (ii) except as provided below in this Section ~~9.3(b)~~11.3, all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company in a manner permitted by this Agreement, then Escrow Agent shall deliver the Xxxxxxx Money Deposit to Parent, (iii) if the RLJ REITs default in their obligations under this Agreement by reason of a sale of the Company or any of the Properties to a third party (other than if such sale is required pursuant to ~~any other provision of Section 9.1 at any time after~~ the ~~occurrence~~ provisions of a ~~Triggering Event~~Franchise Agreement or Management Agreement Document (such a sale, a “Refusal Right Sale”)) and the remedy of specific performance is unavailable to Parent, then (even though the parties explicitly acknowledge that monetary damages are not an adequate remedy for a breach of this Agreement) the RLJ REITs, jointly and severally, shall be liable to pay Parent an amount equal to Forty Million Dollars ($40,000,000) (the “Company Termination Fee”) as liquidated damages (and not as a penalty) and as Parent’s sole remedy (in addition to the delivery of the Xxxxxxx Money Deposit by Escrow Agent to Parent); provided, however, that if the RLJ REITs default in their obligations under this Agreement by reason of a Refusal Right Sale, the RLJ REITs, jointly and severally, shall be liable to pay Parent an amount equal to the aggregate amount of the fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees, investment banking fees, incremental overhead expenses, costs and expenses related to interest rate xxxxxx, filing fees and printing and mailing expenses) that have been paid or that become payable by or on behalf of the Buyer Parties in connection with the preparation, negotiation and enforcement of this Agreement and otherwise in connection with the Merger Transactions, not to exceed Three Hundred Seventy-Five Thousand Dollars ($375,000); (iv) if Parent defaults in its obligations to pay the Company Merger Consideration when it is obligated to do so hereunder or otherwise defaults in its obligations hereunder and the Agreement is terminated by the RLJ REITs, then the Xxxxxxx Money Deposit shall be paid to the RLJ REITs in accordance with the Escrow Instructions as liquidated damages (and not as a penalty) and as RLJ REITs’ sole remedy. (b) In the event that the RLJ REITs are entitled to receive the Xxxxxxx Money Deposit, Escrow Agent shall pay to the Company, from the escrow holding the Xxxxxxx Money Deposit, an amount equal to the lesser of (i) the Xxxxxxx Money Deposit and (ii) the sum of (A) the maximum amount that can be paid to the Company without causing the RLJ REITs to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(H) or 856(c)(3)(I) of the Code (“Qualifying Income”), as determined by the Company’s independent public accountants, plus (B) in the event the Company receives either (x) a letter from the Company’s counsel indicating that the RLJ REITs have received a ruling from the IRS described below in this Section 11.3(b) (but in any case not to increase the amount of the Xxxxxxx Money Deposit) or (y) an opinion from the Company’s outside counsel as described below in this Section 11.3(b), an amount equal to the Xxxxxxx Money Deposit less the amount payable under clause (A) above. To secure Parent’s obligation to pay these amounts, the Xxxxxxx Money Deposit shall be in the Escrow, with the Escrow Agent and on such terms in addition to the terms of the Escrow Instructions (subject to this Section 11.3(b)) as shall be mutually agreed upon by the Company, Parent and the Escrow Agent. The Escrow Instructions shall provide that the Xxxxxxx Money Deposit in escrow or any portion thereof shall not be released to the Company unless the Escrow Agent receives any one or combination of the following: (i) a letter from the Company’s independent public accountants indicating the maximum amount that can be paid by the Escrow Agent to the Company without causing the RLJ REITs to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising that amount, in which case the Escrow Agent shall release such amount to the Company, or (ii) a letter from the Company’s counsel indicating that the Company received a ruling from the IRS holding that the receipt by the Company of the Xxxxxxx Money Deposit would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Xxxxxxx Money Deposit would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the Escrow Agent shall release the remainder of the Xxxxxxx Money Deposit to the Company. Parent agrees to amend this Section 11.3(b) at the reasonable request of the Company in order to (i) maximize the portion of the Xxxxxxx Money Deposit that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve the Company’s chances of securing a favorable ruling described in this Section 11.3(b) or (iii) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in this Section 11.3(b). The Escrow Instructions also shall provide that any portion of the Xxxxxxx Money Deposit held in escrow for five (5) years shall be released by the Escrow Agent to Parent. (c) In the event that the Company is obligated to pay the Company Termination Fee, the Company shall pay to ~~Parent~~ Parent, from the Company Termination Fee deposited into escrow in accordance with the next sentence, an amount equal to the lesser of (i) the Company Termination Fee and (ii) the ~~Expense Payment~~ sum of (A) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by Parent’s independent public accountants, plus (B) in ~~cash~~the event Parent receives either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS described below in this Section 11.3(c) (but in any case not to increase the amount of the Company Termination Fee) or (y) an opinion from Parent’s outside counsel as described below in this Section 11.3(c), an amount equal to the Company Termination Fee less the amount payable under clause (A) above. To secure the Company’s obligation to pay these amounts, the Company shall deposit into escrow an amount in cash equal to the Company Termination Fee with Escrow Agent on such terms (subject to this Section 11.3(c)) as shall be mutually agreed upon by the Company, Parent and the Escrow Agent. The payment or deposit into escrow of the Company Termination Fee pursuant to this Section 11.3(c) shall be made at the time the Company is obligated to pay Parent such amounts pursuant to Section 11.3(d), by wire transfer or bank check. The escrow agreement shall provide that the Company Termination Fee in escrow or any portion thereof shall not be released to Parent unless the Escrow Agent receives any one or combination of the following: (i) a letter from Parent’s independent public accountants indicating the maximum amount that can be paid by the Escrow Agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from Parent’s accountants revising that amount, in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that Parent received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the Escrow Agent shall release the remainder of the Company Termination Fee to Parent. The Company agrees to amend this Section 11.3(c) at the reasonable request of Parent in order to (i) maximize the portion of the Company Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Parent’s chances of securing a favorable ruling described in this Section 11.3(c) or (iii) assist Parent in obtaining a favorable legal opinion from its outside counsel as described in this Section 11.3(c). The escrow agreement shall also provide that any portion of the Company Termination Fee held in escrow for five (5) years shall be released by the Escrow Agent to the Company. (d) In the event that the Company is required to pay the Company Termination Fee pursuant to a termination of this Agreement, such amount shall be paid into escrow as provided in Section 11.3(c) as promptly as practicable following such termination, but in no event more than two (2) business days following such termination. (e) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ The parties hereto agree and understand that in no event shall the Company ~~shall pay to~~ or Parent ~~the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee~~ be required to ~~be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees~~ pay the Company Termination Fee or the Xxxxxxx Money Deposit, respectively, on more than one occasion. The parties hereto acknowledge that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 11.3 are an integral part of the Merger Transactions, and that, without these ~~covenants and obligations~~agreements, ~~such party~~ the parties hereto would not ~~have entered~~ enter into this Agreement~~. (h) If either~~ . In the event any party ~~fails~~ hereto is required to ~~pay when due any amount~~ file suit to seek all or portion of the amounts payable under this Section ~~9.3~~11.3, ~~then: (i)~~ and such party hereto prevails in such litigation, such party hereto shall ~~reimburse the other party for~~ be awarded to all ~~costs and expenses (~~reasonable expenses, including reasonable attorneys’ fees and ~~disbursements of counsel)~~ expenses, that it has incurred in ~~connection with the collection of such overdue amount and the enforcement by the other party of~~ enforcing its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid11.3.

Appears in 4 contracts

Samples: Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (i) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement and any amendments or supplements thereto and (ii) the filing of the premerger notification and report forms relating to the Merger under the HSR Act. (b) If this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(d) and there shall not have been a Material Adverse Effect on Parent, then the Company shall pay to Parent, in cash (at the time specified in Section 8.3(c)), a nonrefundable fee in the amount of $1,000,000. If this Agreement is terminated by Parent pursuant to Section 8.1(f), then the Company shall pay to ~~Parent~~ Parent, in cash (at the ~~Expense Payment;~~ time specified in Section 8.3(c)), a nonrefundable fee in the amount of $5,000,000. If this Agreement is terminated by the Company pursuant to Section 8.1(j), then the Company shall pay to Parent, in cash, a nonrefundable fee in the amount of $5,000,000 (~~i) provided~~at the time specified in Section 8.3(c)), ~~however~~plus, if in the ~~only if as~~ event of the ~~End Date all~~ subsequent consummation of an Acquisition Proposal within 12 months after the ~~conditions to~~ date of termination, a nonrefundable fee in the ~~Closing in ARTICLE 7 have been satisfied or waived except those~~ amount set forth in ~~Sections 7.7 or 7.16,~~ Section 8.3(f) (at the ~~Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing~~ time specified in ~~ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of~~ Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed8.3(f), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000). (c) In the case of termination of this Agreement by the Company pursuant to Section 8.1(d) or 8.1(j), the fee referred to in Section 8.3(b) shall be paid by the Company prior to such termination, and in the case of termination of this Agreement by Parent pursuant to Section 8.1(d) or Section 8.1(f), the fee referred to in Section 8.3(b) shall be paid by the Company within three business days after such termination. (d) If ~~(i)~~ this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(e) or and there shall not have been a Material Adverse Effect on the Company, then Parent shall pay to the Company, in cash (at the time specified in Section ~~9.1(d~~8.3(e)), ~~(ii) at or prior~~ a nonrefundable fee in the amount of $1,000,000. If this Agreement is terminated by the Company pursuant to Section 8.1(g), then Parent shall pay to the Company, in cash (at the time specified in Section 8.3(e)), a nonrefundable fee in the amount of $5,000,000. If this Agreement is terminated by the Parent pursuant to Section 8.1(k), then Parent shall pay to the Company, in cash, a nonrefundable fee in the amount of $5,000,000 (at the time specified in Section 8.3(e)), plus, in the event of the ~~termination~~ subsequent consummation of ~~this Agreement~~ an Acquisition Proposal ~~shall have been disclosed, announced, commenced, submitted or made, and~~ (~~iii) on or prior to~~ within 12 months after the date of ~~such~~ termination), ~~either an Acquisition Transaction is consummated or~~ a ~~definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable~~ nonrefundable fee in the amount set forth in Section 8.3(f) (at the time specified in Section 8.3(f)). (e) In the case of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes termination of this ~~Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this~~ Agreement ~~is terminated~~ by Parent pursuant to Section ~~9.1(e~~8.1(e) or 8.1(k), ~~or if~~ the fee referred to in Section 8.3(d) shall be paid by Parent prior to such termination, and in the case of termination of this Agreement ~~is terminated~~ by ~~Parent or~~ the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e~~8.1(e) ~~If this Agreement is terminated by Parent pursuant to~~ or Section ~~9.1(f~~8.1(g), ~~then~~ the ~~Company shall pay~~ fee referred to ~~Parent the Expense Payment. (f~~in Section 8.3(d) ~~Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3~~ shall be paid ~~and made~~ by Parent within ~~two~~ three business days after such termination. (gf) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any The additional amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid ~~and ending~~ by the Company pursuant to the last clause of Section 8.3(b) shall be equal to five percent (5%) of the excess, if any, of the Value (as defined below) of the Acquisition Proposal that is consummated over $181,000,000. The additional amount to be paid by Parent pursuant to the last clause of Section 8.3(d) shall be equal to five percent (5%) of the excess, if any, of the Value of the Acquisition proposal that is consummated over $194,000,000. Any amounts payable pursuant to this Section 8.3(f) shall be paid one business day after the consummation of the acquisition. Value, for purposes of this Section 8.3(f), shall be equal to the aggregate consideration paid the shareholders of the Company or to the Company, or to the stockholders of Parent or to Parent, as the case may be, with publicly-traded securities valued at the closing price of such securities on the ~~date such overdue amount is actually~~ trading day prior to the consummation of the acquisition and with non-publicly-traded securities value in accordance with the valuation placed upon them by the Company's Board of Directors when it made its decision to recommend the Acquisition Proposal. For purposes of calculating the value of consideration paid to shareholders of the ~~other party in full) at a rate per annum 500 basis points over~~ Company or stockholders of Parent, as the ~~“prime rate” (as announced by Bank of America~~case may be, ~~N.A. or any successor thereto) in effect on the date such overdue amount was originally required~~ all exercisable in-the-money options, warrants and similar rights shall be deemed to ~~be paid~~have been exercised.

Appears in 4 contracts

Samples: Merger Agreement (Sequana Therapeutics Inc), Merger Agreement (Sequana Therapeutics Inc), Agreement and Plan of Merger and Reorganization (Arris Pharmaceutical Corp/De/)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid (or caused to be paid) by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with: (i) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto; and (ii) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If If: (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(b), ; (ii) at no Parent Specified Circumstance or ~~prior to~~ Company Specified Circumstance shall have existed on the ~~time~~ date of ~~the termination of this Agreement an~~ such termination; (iii) a bona fide Acquisition Proposal shall have been disclosed, announced, commenced, submitted or ~~made,~~ made at any time prior to the termination of this Agreement; (iv) a final vote on the adoption of this Agreement by the Company's stockholders shall not have been held; and (~~iii~~v) either: (A) on or prior to ~~12 months after~~ the ~~date~~ first anniversary of such ~~termination~~termination of this Agreement, ~~either an~~ a Specified Acquisition Transaction (as defined below) is ~~consummated~~ consummated; or (B) on or prior to the first anniversary of such termination of this Agreement, a definitive agreement ~~relating to an~~ providing for a Specified Acquisition Transaction is entered ~~into~~into and, ~~then~~ following such first anniversary, such Specified Acquisition Transaction (or any other Specified Acquisition Transaction among or involving the parties to such definitive agreement or any of such parties' controlled or controlling affiliates) is consummated, then, within two business days after the consummation of such Specified Acquisition Transaction, the Company shall pay (or cause to be paid) to Parent ~~the Expense Payment and~~ a ~~non-refundable~~ nonrefundable fee in the amount of $~~600,000 (~~103,200,000 in cash. For purposes of this Agreement, the ~~“Fee”) in cash on or prior to~~ term "Specified Acquisition Transaction" shall have the ~~earlier of~~ same meaning as the ~~date of consummation of such~~ term "Acquisition ~~Transaction or the date of execution of such definitive agreement; provided, however, that,~~ Transaction," except that solely for purposes of ~~this Section 9.3(b),~~ the definition of Specified Acquisition Transaction all references to “"15%” " in the definition of “"Acquisition Transaction” " (including in the definition of "material Subsidiary" contained therein) shall be deemed to refer instead to ~~“50~~"40%.”" (dc) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if~~ If: (i) this Agreement is terminated by Parent or the Company pursuant to ~~any other provision of~~ Section ~~9.1~~ 8.1(e); (ii) a bona fide Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made at any time prior to the adoption of this Agreement by the Required Company Stockholder Vote; (iii) such Acquisition Proposal shall not have been publicly withdrawn on or before the date that is four business days prior to the date of the Company Stockholders' Meeting; and (iv) either: (A) on or prior to the first anniversary of such termination of this Agreement, a Specified Acquisition Transaction is consummated; or (B) on or prior to the first anniversary of such termination of this Agreement, a definitive agreement providing for a Specified Acquisition Transaction is entered into and, following such first anniversary, such Specified Acquisition Transaction (or any other Specified Acquisition Transaction among or involving the parties to such definitive agreement or any of such parties' controlled or controlling affiliates) is consummated, then, within two business days after the consummation of such Specified Acquisition Transaction, the Company shall pay (or cause to be paid) to Parent a nonrefundable fee in the amount of $103,200,000 in cash. (d) If this Agreement is terminated pursuant to Section 8.1(g), or if this Agreement is otherwise terminated by Parent or the Company pursuant to Section 8.1 following the occurrence of a Company Triggering Event, then the Company shall pay (or cause to ~~Parent~~ be paid) to Parent, at the ~~Fee and~~ time specified in the ~~Expense Payment~~ next sentence, a nonrefundable fee in the amount of $103,200,000 in cash. In the case of termination of this Agreement by the Company, the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by the Company prior to the time of such termination; and in the case of termination of this Agreement by Parent, the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by the Company within two business days after such termination. (e) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(f~~8.1(h), or if this Agreement is otherwise terminated by Parent or the Company pursuant to Section 8.1 following the occurrence of a Parent Triggering Event, then Parent shall pay (or cause to be paid) to the Company, at the time specified in the next sentence, within two business days after the termination of this Agreement, a nonrefundable fee in the amount of $103,200,000 in cash. In the case of termination of this Agreement by Parent, the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by Parent prior to the time of such termination; and in the case of termination of this Agreement by the Company, the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by Parent within two business days after such termination. (f) If: (i) at any time prior to the adoption of this Agreement by the Required Company Stockholder Vote: (A) Parent has requested that the Company's board of directors reaffirm the Company Board Recommendation or its determination that the Merger is advisable and fair to, and in the best interests of, the Company and its stockholders; (B) a vote with respect to such reaffirmation was held; and (C) either: (1) less than all of the members of the Company's board of directors voted in favor of the reaffirmation of the Company Board Recommendation; or (2) less than all of the members of the Company's board of directors voted in favor of the reaffirmation of its determination that the Merger is advisable and fair to, and in the best interests of, the Company and its stockholders; (ii) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) or Section 8.1(e); and (iii) in the case of any termination of this Agreement by Parent or the Company pursuant to Section 8.1(b), no Parent Specified Circumstance or Company Specified Circumstance shall have existed on the date of such termination, then the Company shall pay ~~to Parent the Expense Payment.~~ (~~f) Unless otherwise provided in this Section 9.3, any fee required~~ or cause to be ~~paid~~ paid) to Parent, at the time specified in the next sentence, a nonrefundable fee in the amount of $103,200,000 in cash. In the case of termination of this Agreement by the Company pursuant to ~~this~~ Section ~~9.3~~ 8.1(b) or Section 8.1(e), the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by the Company prior to the time of such termination; and ~~made~~ in the case of termination of this Agreement by Parent pursuant to Section 8.1(b) or Section 8.1(e), the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by the Company within two business days after such termination. (g) ~~Each party acknowledges and agrees~~ If: (i) at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Vote: (A) the Company has requested that Parent's board of directors reaffirm the Parent Board Recommendation or its determination that the ~~covenants~~ issuance of Parent Common Stock in the Merger is advisable and ~~obligations contained~~ fair to, and in ~~this Section 9.3 are an integral part~~ the best interests of, Parent and its stockholders; (B) a vote with respect to such reaffirmation was held; and (C) either: (1) less than all of the ~~Transactions~~members of Parent's board of directors voted in favor of the reaffirmation of the Parent Board Recommendation; or (2) less than all of the members of Parent's board of directors voted in favor of the reaffirmation of its determination that the issuance of Parent Common Stock in the Merger is advisable and fair to, and ~~that~~in the best interests of, ~~without these covenants~~ Parent and ~~obligations~~its stockholders; (ii) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) or Section 8.1(f); and (iii) in the case of any termination of this Agreement by Parent or the Company pursuant to Section 8.1(b), no Parent Specified Circumstance or Company Specified Circumstance shall have existed on the date of such ~~party would not~~ termination, then Parent shall pay (or cause to be paid) to the Company, at the time specified in the next sentence, a nonrefundable fee in the amount of $103,200,000 in cash. In the case of termination of this Agreement by Parent pursuant to Section 8.1(b) or Section 8.1(f), the fee referred to in the preceding sentence shall be paid (or caused to have ~~entered into~~ been paid) by Parent prior to the time of such termination; and in the case of termination of this ~~Agreement~~Agreement by the Company pursuant to Section 8.1(b) or Section 8.1(f), the fee referred to in the preceding sentence shall be paid (or caused to have been paid) by Parent within two business days after such termination. (h) Under no circumstances shall Parent or the Company be entitled to receive more than one nonrefundable fee in the amount of $103,200,000 pursuant to this Section 8.3; provided, however, that nothing in this Section 8.3(h) shall limit the obligations of each party to pay (or cause to be paid) any amounts required to be paid (or caused to be paid) by such party under Section 8.3(a) in addition to any nonrefundable fee required to be paid (or caused to be paid) by such party. If ~~either~~ a party fails to pay (or fails to cause to have been paid) when due any amount ~~payable~~ that such party is required to pay (or cause to be paid) under this Section ~~9.3~~8.3, then: (i) such party shall reimburse the other party (or cause the other party to be reimbursed) for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section ~~9.3~~8.3; and (ii) ~~the first~~ such party shall pay (or cause to be paid) to the other party 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~~ through the date such overdue amount is actually paid to the other party in full) at a rate per annum ~~500 basis points over~~ equal to the “lower of: (i) the "prime rate” " (as announced by ~~Bank of America~~Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii) the maximum rate permitted by applicable Legal Requirements.

Appears in 3 contracts

Samples: Merger Agreement (Macromedia Inc), Merger Agreement (Adobe Systems Inc), Merger Agreement (Adobe Systems Inc)

Appears in 3 contracts

Samples: Merger Agreement (Aerojet Rocketdyne Holdings, Inc.), Agreement and Plan of Merger (Lockheed Martin Corp), Merger Agreement

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ Offer, the Merger and the other transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not any shares of Company Common Stock are purchased pursuant to the Offer and whether or not the Merger is consummated; PROVIDED, HOWEVER, that Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the filing, printing and mailing of the Offer Documents and the Proxy Statement and any amendments or supplements thereto. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(c) or Section ~~9.1(d~~8.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or ~~made,~~ made and (iii) ~~on or prior to 12 months~~ within 360 days after the date of ~~such termination~~termination of this Agreement, ~~either~~ an Acquisition Transaction is consummated or the Company enters into a definitive agreement ~~relating to~~ 53. contemplating an Acquisition ~~Transaction is entered into~~Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Parent, in cash, a ~~non-refundable~~ nonrefundable fee in ~~the~~ an amount of equal to $~~600,000 (the “Fee”) in cash on~~ 18,000,000 at or prior to the ~~earlier of the date of~~ consummation of such Acquisition ~~Transaction or the date of execution of such definitive agreement; provided, however, that, solely~~ Transaction. Solely for purposes of ~~this Section 9.3(b~~clause "(iii)" of the preceding sentence, ~~all references~~ (1) the term "Acquisition Transaction" shall not be deemed to ~~“15%”~~ include a pure equity financing transaction that is not related to a merger, consolidation, amalgamation, share exchange, business combination, tender offer or exchange offer if, following such pure equity financing transaction, no Person or "group" (as defined in the Exchange Act or the rules thereunder) of Persons has beneficial or record ownership of securities representing more than 35% of the outstanding securities of any class of voting securities of any of the Acquired Corporations, (2) clause "(b)(ii)" of the definition of Acquisition Transaction shall be disregarded, and (3) each reference in the definition of “Acquisition ~~Transaction”~~ Transaction to "15%" shall be deemed to refer instead to ~~“50~~"35%.”" (c) If this Agreement is terminated by Parent pursuant to Section 8.1(g)(i) or by the Company pursuant to Section 8.1(h), then the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable fee in an amount equal to $18,000,000. In the case of termination of this Agreement by the Company pursuant to Section 8.1(h), the fee referred to in the preceding sentence shall be paid by the Company at or prior to the time of such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(g)(i), the fee referred to in the preceding sentence shall be paid by the Company within two business days after such termination. (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f8.1(g)(ii), then the Company shall ~~pay~~ make a nonrefundable cash payment to ~~Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3~~Parent, ~~any fee required to be paid pursuant to this Section 9.3 shall be paid and made~~ within two business days after such termination. , in an amount equal to the lesser of $1,500,000 or the aggregate amount of all fees and expenses (gincluding all attorneys' fees, accountants' fees and filing fees) ~~Each party acknowledges~~ that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and ~~agrees that~~ negotiation of this Agreement and otherwise in connection with the ~~covenants and obligations contained in this Section 9.3 are an integral part~~ Offer, the Merger or any of the ~~Transactions, and that, without these covenants and obligations, such party would not have entered into~~ other transactions contemplated by this Agreement. (he) If ~~either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3~~8.3, ~~then:~~ then (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including reasonable fees and reasonable disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3;~~ 8.3, and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500 basis~~ three percentage points ~~over~~ above the “"prime rate” " (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 3 contracts

Samples: Merger Agreement (Triangle Pharmaceuticals Inc), Merger Agreement (Gilead Sciences Inc), Merger Agreement (Triangle Pharmaceuticals Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that: (i) Parent and the Company shall share on a 60%/40% pro rata basis, respectively, all fees and expenses, other than attorneys’ fees, incurred in connection with the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto and each party shall be responsible for any fees and expenses it incurs in connection with the filing of its premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation; (ii) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) and at or prior to the time of the termination of this Agreement an Acquisition Proposal regarding the Company shall have been disclosed, announced, commenced, submitted or made, and the Company is party to a definitive agreement for an Acquisition Transaction within the twelve (12) month period following such termination which is ultimately completed, then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(b) or Section 8.3(d)) the Company shall make a nonrefundable cash payment to Parent, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger immediately upon the consummation of such Acquisition Transaction; (iii) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) or by Parent pursuant to Section 8.1(f), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(b) or Section 8.3(d)) the Company shall make a nonrefundable cash payment to Parent, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger, within two (2) business days after such termination; and (iv) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e) or by the Company pursuant to Section 8.1(g), then (without limiting any obligation of Parent to pay any fee payable pursuant to Section 8.3(b) or Section 8.3(e)) Parent shall make a nonrefundable cash payment to the Company, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of the Company in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger, within two (2) business days after such termination. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(d) ~~or Section 9.1(d), (ii)~~ and at or prior to the time of the ~~termination of this Agreement~~ Company Shareholder Meeting an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and ~~(iii) on or prior~~ the Company is party to ~~12 months after the date of such termination, either~~ a definitive agreement for an Acquisition Transaction within the twelve (12) month period following such termination which is ~~consummated or a definitive agreement relating to an Acquisition Transaction is entered into~~ultimately completed, then the Company shall pay to ~~Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”)~~ Parent, in cash ~~on or prior to~~ upon the ~~earlier of the date of~~ consummation of such Acquisition Transaction (and in addition to the amounts payable by the Company pursuant to Section 8.3(a)) a nonrefundable fee in an amount equal to $3,000,000. If this Agreement is terminated by Parent or the ~~date~~ Company pursuant to Section 8.1(e) and at or prior to the time of ~~execution~~ the Parent Stockholder Meeting an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and Parent is party to a definitive agreement for an Acquisition Transaction in which Parent is the party being acquired by another entity within the twelve (12) month period following such termination which is ultimately completed, then Parent shall pay to the Company, in cash upon the consummation of such ~~definitive agreement; provided, however, that, solely for purposes of this~~ Acquisition Transaction (and in addition to the amounts payable by Parent pursuant to Section ~~9.3(b~~8.3(a)), ~~all references~~ a nonrefundable fee in an amount equal to ~~“15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~$3,000,000.” (dc) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f8.1(f), then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment.~~ time specified in the next sentence (~~f) Unless otherwise provided~~ and in ~~this Section 9.3, any fee required~~ addition to ~~be paid~~ the amounts payable pursuant to ~~this~~ Section ~~9.3~~ 8.3(a)), a nonrefundable fee in the amount equal to $3,000,000. The fee referred to in the preceding sentence shall be paid ~~and made~~ by the Company within two (2) business days after such termination. (gd) ~~Each party acknowledges~~ If this Agreement is terminated by the Company pursuant to Section 8.1(g), then Parent shall pay to the Company, in cash at the time specified in the next sentence (and ~~agrees that~~ in addition to the ~~covenants and obligations contained~~ amounts payable pursuant to Section 8.3(a)), a nonrefundable fee in ~~this Section 9.3 are an integral part of~~ the ~~Transactions, and that, without these covenants and obligations,~~ amount equal to $3,000,000. The fee referred to in the preceding sentence shall be paid by Parent within two (2) business days after such ~~party would not have entered into this Agreement~~termination. (he) If ~~either party~~ the Company fails to pay when due any amount payable by the Company under this Section ~~9.3~~8.3, ~~then:~~ then (i) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such ~~party~~ overdue amount and the enforcement by Parent of its rights under this Section 8.3, and (ii) the 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 the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. If Parent fails to pay when due any amount payable by Parent under this Section 8.3, then (i) Parent shall reimburse the ~~other party~~ Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the ~~other party~~ Company of its rights under this Section ~~9.3;~~ 8.3, and (ii) ~~the first party~~ Parent shall pay to the ~~other party~~ Company 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 the ~~other party~~ Company in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 3 contracts

Samples: Merger Agreement (WEB.COM, Inc.), Merger Agreement (Website Pros Inc), Merger Agreement (Website Pros Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.03, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that, Parent and the Company shall share equally all fees and expenses, other than fees and expenses of attorneys, accountants, consultants and financial advisors, incurred in connection with (A) the filing, printing and mailing of the Form S-4 and the Proxy Statement and any amendments or supplements thereto and (B) other than filing fees related thereto, the expenses of the parties hereto in seeking to satisfy the conditions set forth in Section 7.01(b). (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.01(b) or ~~Section 9.1(d),~~ (iid) and (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and shall not have been withdrawn at the time of termination and (~~iii~~B) ~~on or~~ the Company shall enter into any Acquisition Transaction with any party other than Parent prior to ~~12 months after~~ the one hundred and eightieth day from and excluding the date of such ~~termination, either an Acquisition Transaction is consummated~~ termination or ~~a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000~~ (~~the “Fee”~~ii) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e),~~ 8.01(e) or ~~if this Agreement is terminated~~ by ~~Parent or~~ the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~8.01(j), then in each case, the Company shall pay to Parent in cash at the ~~Fee~~ time(s) specified, and subject to the ~~Expense Payment~~ conditions set forth, in ~~cash~~Section 8.03(c), a nonrefundable fee in the aggregate amount equal to $2,136,000 (the "Termination Fee") and in addition, the Company shall make a nonrefundable cash payment to Parent, at the time specified in Section 8.03(c), in an amount equal to the aggregate amount of all reasonable fees and expenses (including all reasonable attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger (the "Parent Expenses"). (ec) If In case of termination of this ~~Agreement is terminated~~ Agreement: (i) by the Company pursuant to Section 8.01(j), the Termination Fee shall be paid by the Company prior to the time of such termination and Parent Expenses shall be paid within two business days of such termination. (ii) by Parent pursuant to Section ~~9.1(f~~8.01(e), ~~then~~ the ~~Company shall pay to~~ Termination Fee and Parent ~~the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3~~ Expenses shall be paid ~~and made~~ by the Company within two business days after such termination. (giii) ~~Each party acknowledges and agrees that~~ In the ~~covenants and obligations contained~~ circumstances as described in ~~this~~ Section ~~9.3 are an integral part~~ 8.03(b)(i) the Company shall pay $712,000, representing one-third of the ~~Transactions~~Termination Fee upon execution of definitive agreements evidencing such Acquisition Transaction described therein and upon consummation of such Acquisition Transaction the Company shall pay (A) $1,424,000, representing the balance of the Termination Fee and ~~that, without these covenants and obligations, such party would not have entered into this Agreement~~(B) Parent Expenses. (hd) If ~~either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3~~8.03, ~~then:~~ then (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3;~~ 8.03, and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500 basis points~~ equal to 3% over the “"prime rate” " (as announced ~~by Bank~~ in the Western Edition of ~~America, N.A. or any successor thereto~~The Wall Street Journal) in effect on the date such overdue amount was originally required to be paid.

Appears in 3 contracts

Samples: Merger Agreement (Netratings Inc), Merger Agreement (Netratings Inc), Merger Agreement (Netratings Inc)

Appears in 2 contracts

Samples: Merger Agreement (Scopus Technology Inc), Merger Agreement (Scopus Technology Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company~~ La Jolla shall pay ~~to Parent~~ Adamis a nonrefundable fee as liquidated damages in the ~~Expense Payment;~~ following amounts and circumstances: (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or 150,000 if this Agreement is terminated by ~~Parent or the Company~~ Adamis pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay~~ 9.1(e) or by La Jolla pursuant to ~~Parent the Fee and the Expense Payment in cash.~~ Sections 9.1(h) or 9.1(l); or (eii) If if this Agreement is terminated by ~~Parent~~ La Jolla or Adamis pursuant to Section 9.1(d), all reasonable accounting and legal fees and costs incurred by Adamis in connection with the transactions contemplated by this agreement (up to a maximum of $100,000) (the fee payable in either of the above instances referred to as the “La Jolla Termination Fee”). Any La Jolla Termination Fee due under this Section shall be paid to Adamis by wire transfer of same-day funds within five Business Days of termination. (c) Adamis shall pay La Jolla a nonrefundable fee as liquidated damages in the following amounts and circumstances: (i) $150,000 if this Agreement is terminated by La Jolla pursuant to Section 9.1(f) or by Adamis pursuant to Sections 9.1(g) or 9.1(m); or (ii) if this Agreement is terminated by La Jolla or Adamis pursuant to Section 9.1(k), ~~then~~ all reasonable accounting and legal fees and costs incurred by La Jolla in connection with the ~~Company shall pay~~ transactions contemplated by this agreement (up to ~~Parent~~ a maximum of $100,000) (the ~~Expense Payment. (f) Unless otherwise provided~~ fee payable in either of the above instances referred to as the “Adamis Termination Fee”). Any Adamis Termination Fee due under this Section ~~9.3, any fee required to be paid pursuant to this Section 9.3~~ shall be paid ~~and made~~ to La Jolla by wire transfer of same-day funds within ~~two business days after such~~ five Business Days of termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hd) If either ~~party~~ Party fails to pay when due any amount payable by such Party under ~~this~~ Section ~~9.3~~9.3(b) or 9.3(c), ~~then:~~ as applicable then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this ~~Section 9.3;~~ Section, and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The fees payable pursuant to this Section 9.3 shall be paid as liquidated damages and shall be the sole remedy hereunder following a termination of the type set forth in this Section 9.3. The parties acknowledge that the actual damages incurred in connection with a termination as contemplated under this Section 9.3 would be impossible to ascertain and that the fees set forth in this Section 9.3 are an estimate of such damages and not a penalty for termination.

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Adamis Pharmaceuticals Corp), Merger Agreement (La Jolla Pharmaceutical Co)

Appears in 2 contracts

Samples: Merger Agreement (Foundry Networks Inc), Merger Agreement (Foundry Networks Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all ~~fees and~~ expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not any shares are purchased pursuant to the Offer and whether or not the Merger is consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(c), and (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been publicly disclosed, ~~announced, commenced, submitted~~ announced or ~~made~~commenced (and not withdrawn at least five (5) business days prior to the time of termination), and (iii) ~~on or prior to 12 months~~ within one (1) year after the date of ~~such termination~~termination of this Agreement, ~~either~~ (A) an Acquisition Transaction is consummated or (B) a definitive agreement ~~relating to~~ contemplating an Acquisition Transaction is ~~entered into~~executed and such Acquisition Transaction is ultimately consummated, then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment and~~ time such Acquisition Transaction (as it may have been modified, including any other Acquisition Transaction among or involving the parties to such definitive agreement or any of such parties’ affiliates) is consummated, a ~~non-refundable~~ nonrefundable fee in the amount of $~~600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~8,517,000; provided, however, ~~that, solely~~ that for purposes of ~~this Section 9.3(b~~clause “(iii)” above, all references to “15%” in the definition of “Acquisition ~~Transaction”~~ Transaction shall be deemed to refer ~~instead~~ to “50%”.” (dc) If this Agreement is terminated (i) by Parent at any time pursuant to Section ~~9.1(e~~8.1(d) based upon clause “(i)” of the definition of “Triggering Event”, ~~or if this Agreement is terminated~~ (ii) by Parent or following the ~~Company pursuant to any other provision~~ expiration of ~~Section 9.1 at any time after~~ the ~~occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent~~ Go-Shop Period pursuant to Section ~~9.1(f~~8.1(d) based upon any of clauses “(ii),” “(iii),” “(iv)” or “(v)” of the definition of “Triggering Event” or (iii) by the Company following the expiration of the Go-Shop Period pursuant to Section 8.1(e), then the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable fee in the amount of $8,517,000. In the case of any termination of this Agreement by Parent ~~the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid~~ pursuant to ~~this~~ Section ~~9.3~~ 8.1(d), the fee referred to in the preceding sentence shall be paid ~~and made~~ by the Company within two (2) business days after such termination; and in the case of termination of this Agreement by the Company pursuant to Section 8.1(e), the fee referred to in the preceding sentence shall be paid by the Company at or prior to the time of such termination. (gd) ~~Each party acknowledges and agrees that~~ If, during the ~~covenants and obligations contained in~~ Go-Shop Period, this Agreement is terminated by the Company pursuant to Section ~~9.3 are an integral part~~ 8.1(e) or by Parent pursuant to Section 8.1(d) based upon any of any of clauses “(ii),” “(iii),” “(iv)” or “(v)” of the ~~Transactions~~definition of “Triggering Event”, ~~and that~~then the Company shall pay to Parent, ~~without these covenants and obligations~~in cash at or prior to the time of such termination, ~~such party would not have entered into this Agreement~~a nonrefundable fee in the amount of $6,388,000. (he) If ~~either party~~ the Company fails to pay when due any amount payable under ~~this~~ Section ~~9.3~~8.3(b), ~~then:~~ Section 8.3(c) or Section 8.3(d), then (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all reasonable costs and expenses (including fees and disbursements of legal counsel) actually incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3;~~ 8.3, and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ Parent interest on ~~such~~ any amount that is overdue ~~amount~~ (for the period ~~commencing as of the date~~ during which such ~~overdue amount was originally required to be paid and ending on the date such overdue~~ amount is ~~actually paid to the other party in full~~overdue) at a rate per annum ~~500~~ equal to 300 basis points over the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such ~~overdue~~ amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Peets Coffee & Tea Inc), Merger Agreement (Diedrich Coffee Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such fees and expenses~~9.3, whether or not the Merger is consummated, (i) all Parent Transaction Expenses shall be paid by Parent (or on behalf of Parent) at or prior to the Closing and (ii) all Company Transaction Expenses shall be paid by the Company. (b) If (i) this Agreement is terminated by (A) Parent or the Company pursuant to Section 9.1(b~~), then~~ ) or Section 9.1(e) or (B) the Company ~~shall pay~~ pursuant to ~~Parent the Expense Payment; (i~~Section 9.1(f) ~~provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied~~ or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed9.1(h), (ii) ~~the claim(s)~~ an Acquisition Proposal with respect to ~~such Legal Proceeding has~~ Parent shall have been ~~timely and duly reported~~ publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the ~~carrier for the Company’s directors and officers and/or errors and omissions insurance~~ termination of this Agreement, and (iii) within six (6) months after the date of such termination, Parent ~~terminates this Agreement~~enters into a definitive agreement for any Subsequent Transaction or consummates any Subsequent Transaction, ~~the Company shall not pay to Parent the Expense Payment and~~ then Parent shall pay to the Company, upon such entry into a definitive agreement for or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $750,000 (the “Company ~~$400,000~~Termination Fee”). (c) If (i) this Agreement is terminated by (A) Parent or the Company pursuant to Section 9.1(b) or (B) Parent pursuant to Section 9.1(d), Section 9.1(g) or Section 9.1(i), (ii) at an Acquisition Proposal with respect to the Company shall have been publicly announced or disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement but prior to ~~the time of~~ the termination of this ~~Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made~~Agreement, and (iii) ~~on or prior to 12~~ within six (6) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ the Company enters into a definitive agreement ~~relating to an Acquisition~~ for a Subsequent Transaction ~~is entered into~~or consummates any Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Parent, upon such entry into a ~~non-refundable~~ definitive agreement for or consummation of a Subsequent Transaction, a nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 750,000 (the “Parent Termination Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), ~~all references~~ less any amount actually paid to ~~“15%” in the definition of “Acquisition Transaction” shall be deemed~~ Parent pursuant to ~~refer instead to “50%~~Section 9.3(e).” (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~9.1(j), ~~or if this Agreement is terminated by~~ then Parent ~~or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company~~ shall pay to ~~Parent~~ the Company the Company Termination Fee ~~and the Expense Payment in cash~~within five (5) Business Days of such termination. (e) If this Agreement is terminated by Parent pursuant to Section ~~9.1(f~~9.1(d), then the Company shall ~~pay~~ reimburse Parent for all reasonable fees and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby, including: (i) all fees and expenses incurred in connection with the preparation, printing and filing, as applicable, of the Registration Statement or Proxy Statement (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto), (ii) reasonable legal and auditor fees and expenses; and (iii) all fees and expenses incurred in connection with the preparation and filing under any filing requirement of any Governmental Body applicable to ~~Parent~~ this Agreement and the ~~Expense Payment~~transactions contemplated hereby; provided, however, the fees and expenses for clauses (i) through (iii) above (collectively, the “Third-Party Expenses”), shall be capped at a maximum of $750,000 for such Third-Party Expenses. (f) ~~Unless otherwise provided in this Section 9.3~~Any Company Termination Fee, ~~any fee required to be paid pursuant to~~ Parent Termination Fee or reimbursement of Third-Party Expenses due under this Section 9.3 shall be paid ~~and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part~~ by wire transfer of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h)~~ same day funds. If ~~either party~~ a Party fails to pay when due any amount payable by it under this Section 9.3, ~~then: (i)~~ then such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America, N.A.~~ published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (g) The Parties agree that, (i) subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (A) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (B) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (C) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(g) shall limit the rights of the Company under Section 10.11 or with respect to claims of fraud or willful and material breach of this Agreement by either Party prior to the date of termination. (h) The Parties agree that, (i) subject to Section 9.2, payment of the Parent Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement, it being understood that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Parent Termination Fee (A) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (B) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (C) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(h) shall limit the rights of Parent and Merger Sub under Section 10.11 or with respect to claims of fraud or willful and material breach of this Agreement by either Party prior to the date of termination. (i) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Party in the circumstances in which such amount is payable.

Appears in 2 contracts

Samples: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)

Expenses; Termination Fees. (a) Except as set forth in Section 6.2(a) and in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Offer and Merger is are consummated. (b) If In the event that: (i) this Agreement is terminated by the Company pursuant to Section 8.1(f); (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b), then the Company shall pay to Parent the Expense Payment; (i~~8.1(d) ~~provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied~~ or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b) or Section ~~9.1(d~~8.1(e), in each case, within ten calendar days after the occurrence of a Triggering Event; or (iii) (x) this Agreement is terminated pursuant to Section 8.1(g), (iiy) ~~at or prior to the time of the termination of this Agreement~~ any Person shall have publicly disclosed an Acquisition Proposal or otherwise communicated an Acquisition Proposal to the Company Board after the Agreement Date and prior to such termination (unless withdrawn prior to such termination) and (z) within 12 months of such termination (A) the Company shall have ~~been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or~~ entered into a definitive agreement ~~relating~~ with respect to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition ~~Transaction~~ Proposal or ~~the date of execution of~~ consummates such ~~definitive agreement; provided, however, that, solely~~ Acquisition Proposal (provided that for purposes of this ~~Section 9.3(b), all~~ clause (z) the references to “15%” in the definition of “Acquisition Transaction” shall be deemed to ~~refer instead~~ be references to “50%.” ); then, in any such event under clause “(~~d) If~~ i)”, “(ii)” or “(iii)” of this ~~Agreement is terminated by Parent pursuant to~~ Section ~~9.1(e~~8.3(b), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then~~ the Company shall pay to Parent or its designee the Termination Fee ~~and~~ by wire transfer of same day funds (x) in the ~~Expense Payment in cash. (e) If~~ case of Section 8.3(b)(i), prior to or substantially concurrently with the termination of this Agreement ~~is terminated by Parent pursuant to~~ and execution of the Specified Agreement, (y) in the case of Section ~~9.1(f~~8.3(b)(ii), ~~then~~ within two Business Days after such termination or (z) in the case of Section 8.3(b)(iii), upon the earlier to occur of two Business Days after entry into a definitive agreement with respect to an Acquisition Proposal or prior to or substantially concurrently with the consummation of the Acquisition Proposal referred to in subclause (iii)(z) above; it being understood that in no event shall the Company ~~shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee~~ be required to ~~be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that~~ pay the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party interest Termination Fee 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.more than one occasion. As used herein,

Appears in 2 contracts

Samples: Merger Agreement (Cott Corp /Cn/), Merger Agreement (Primo Water Corp)

Appears in 2 contracts

Samples: Merger Agreement (Sirenza Microdevices Inc), Merger Agreement (Rf Micro Devices Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.03 and Section 10.03, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the ~~Merger is~~ transactions contemplated by this Agreement are consummated~~. (b) If~~ ; provided, however, that if this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~7.01(c), Section 7.01(d), Section 7.01(e), Section 7.01(h) or Section 7.01(j), or if this Agreement is terminated by Seller pursuant to Section 7.01(c), Section 7.01(g) or Section 7.01(h), then (without limiting any obligation of Seller to pay any fee payable pursuant to Section 7.03(c)), Seller shall make a nonrefundable cash payment to Parent, at the ~~Company shall pay~~ time specified in Section 7.03(b), in an amount, up to ~~Parent the Expense Payment;~~ a maximum of Two Hundred Fifty Thousand Dollars (~~i) provided~~$250,000), ~~however, if the only if as of the End Date all of the conditions~~ equal to the ~~Closing in ARTICLE 7~~ aggregate amount of all reasonable out of pocket fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and all filing fees) that have been ~~satisfied~~ paid or ~~waived except those set forth~~ that may become payable by or on behalf of Parent in ~~Sections 7.7 or 7.16~~connection with the due diligence review of Seller by Parent and its respective Representatives, the ~~Company shall not be required to pay to Parent~~ preparation and negotiation of this Agreement and otherwise in connection with the ~~Expense Payment;~~transactions contemplated by this Agreement. ~~(ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause~~ (b) In the case of termination of this Agreement by Seller pursuant to Section ~~7.8 pending~~ 7.01(c), Section 7.01(g) or ~~threatened (or~~ Section 7.01(h), any ~~other conditions of ARTICLE 7 have not been satisfied solely as a result~~ nonrefundable expense reimbursement payment required to be made pursuant to Section 7.03(a) shall be made by Seller prior to the time of such ~~Legal Proceeding~~ termination if Seller has been advised of such amount or two (2) Business Days following the time that Seller has been advised of such amount; and ~~would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed~~in the case of termination of this Agreement by Parent pursuant to Section 7.01(c), Section 7.01(d), Section 7.01(e), Section 7.01(h) or Section 7.01(j), any nonrefundable expense reimbursement payment required to be made pursuant to Section 7.03(a) shall be made by Seller within two (ii2) ~~the claim(s) with respect to~~ Business Days after such ~~Legal Proceeding~~ termination if Seller has been ~~timely and duly reported to~~ advised of such amount or two (2) Business Days following the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000time that Seller is advised of such amount. (c) If (i) this Agreement is terminated by Parent or ~~the Company~~ Seller pursuant to Section ~~9.1(b~~7.01(h) and, prior to the time of the meeting of Seller's stockholders held for the purpose of approving the transactions contemplated by this Agreement, a bona fide Acquisition Proposal shall have been publicly disclosed or ~~Section 9.1(d)~~announced and not withdrawn and within one (1) year from the date of termination Seller consummates an Acquisition Proposal, (ii) this Agreement is terminated by Parent or Seller pursuant to Section 7.01(c) or by Parent pursuant to Section 7.01(e) or Section 7.01(j) and at or prior to the time of ~~the~~ termination of this ~~Agreement an~~ Agreement, a bona fide Acquisition Proposal shall have been ~~disclosed~~publicly disclosed or announced and not withdrawn and within one (1) year from the date of termination Seller consummates an Acquisition Proposal, ~~announced, commenced, submitted or made, and~~ (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e),~~ 7.01(d) or if (iv) this Agreement is terminated by ~~Parent or the Company~~ Seller pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~7.01(g), then ~~the Company~~ Seller shall pay to ~~Parent~~ Parent, in cash at the ~~Fee~~ time specified in the next sentence, a nonrefundable fee in the amount equal to Five Hundred Thousand Dollars ($500,000), less any nonrefundable expense reimbursement payment required to be made pursuant to Section 7.03(a) (the "TERMINATION FEE"); provided, however, that for the purposes of this Section 7.03(c), the term "Acquisition Proposal" shall have the meaning assigned to such term in Section 5.04(d) hereof, except that the references to "significant portion" and "10%" in clauses (ii) and (iii) of such definition, respectively, shall be deemed to be references to "more than 50%" and clause (i) of such definition shall be deemed amended and replaced in its entirety by the ~~Expense Payment in cash.~~following language: " (ei) If any merger, consolidation, share exchange, business combination or similar transaction involving Seller pursuant to which stockholders of Seller immediately prior to the consummation of such transaction would cease to own directly or indirectly at least 50% of the voting power of the outstanding securities of Seller (or of another Person that directly or indirectly would own all or substantially all the assets of Seller) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction." In the case of termination of this Agreement ~~is terminated~~ pursuant to clauses (i) or (ii) of this Section 7.03(c), the Termination Fee shall be paid by Seller within two (2) Business Days after such consummation of an Acquisition Proposal; in the case of termination of this Agreement by Parent pursuant to Section ~~9.1(f~~7.01(d), ~~then~~ the ~~Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3~~ Termination Fee shall be paid ~~and made~~ by Seller within two ~~business days~~ (2) Business Days after such termination; and in the case of termination of this Agreement by Seller pursuant to Section 7.01(g), the Termination Fee shall be paid by Seller at or prior to the time of such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hd) If ~~either party~~ Seller fails to pay when due any amount payable under this Section ~~9.3~~7.03, ~~then:~~ then (i) ~~such party~~ Seller shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3;~~ 7.03, and (ii) ~~the first party~~ Seller shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500 basis points over~~ equal to the “"prime rate” " (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Cygnus Inc /De/), Asset Purchase Agreement (Animas Corp)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees for the filing of any notice or other document under any applicable antitrust law or regulation, including the filing with the United States Department of Justice and Federal Trade Commission pursuant to the HSR Act. (b) If this Agreement is terminated (i) by Parent or Acquisition Co. pursuant to Section ~~9.1(b~~8.1(f), or (ii) by the Company pursuant to Section 8.1(g); then the Company shall pay to Parent substantially concurrently with such termination, in the case of a termination by the Company, or within two (2) Business Days thereafter in the case of a termination by Parent, the Termination Fee. (c) In the event that this Agreement is terminated pursuant to Section 8.1(d) by reason of a breach by the Company of any representation, warranty or covenant of the Company contained in this Agreement that the Company shall have failed to cure in accordance with the notice and cure provisions of Section 8.1(d), the Company shall promptly reimburse Parent for its and Acquisition's reasonable out-of-pocket fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby. In the event that (i) this Agreement is terminated pursuant to Section 8.1(d) by reason of a breach by the Company of any representation, warranty or covenant of the Company contained in this Agreement that the Company shall have failed to cure in accordance with the notice and cure provisions of Section 8.1(d), (ii) prior to such termination an Alternative Transaction Proposal shall have been publicly disclosed or otherwise communicated to the Company or the Company's board of directors and not withdrawn, and (iii) within six (6) months after such termination, the Company consummates a transaction contemplated by any Alternative Transaction Proposal, then the Company shall pay to Parent the ~~Expense Payment;~~ Termination Fee (iless any amount previously paid pursuant to this Section 8.3(c)) on the date no later than two (2) Business Days after the consummation of a transaction that constitutes an Alternative Transaction Proposal; provided, ~~however,~~ however that in no event shall a transaction engaged in by the Company during such six month period obligate the Company to pay the Termination Fee if (x) the ~~only if as~~ Company's shareholders constitute at least sixty percent (60%) of the ~~End Date all~~ equity holders of the ~~conditions~~ surviving entity in such transaction and (y) such transaction was not the Alternative Transaction Proposal publicly disclosed or otherwise communicated to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as Board of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or Directors prior to ~~the time of~~ the termination of this ~~Agreement an Acquisition Proposal~~ Agreement. For purposes of the immediately preceding sentence, the term “Alternative Transaction Proposal” shall have ~~been disclosed, announced, commenced, submitted or made, and (iii) on or prior~~ the meaning assigned to ~~12 months after~~ such term in Section 5.3 except that the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15ten percent (10%)” ~~in the definition of “Acquisition Transaction”~~ therein shall be deemed to ~~refer instead~~ be references to “~~50%~~a majority.” (d) If In the event that this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(e), or if this Agreement is terminated~~ 8.1(e) by reason of a breach by Parent or Acquisition Co. of any representation, warranty or covenant of Parent or Acquisition Co. contained in this Agreement that Parent or Acquisition shall have failed to cure in accordance with the ~~Company pursuant to any other provision~~ notice and cure provisions of Section ~~9.1 at any time after the occurrence of a Triggering Event~~8.1(e), ~~then the~~ Parent shall promptly reimburse Company ~~shall pay to Parent the Fee~~ for Company's reasonable out-of-pocket fees, costs and expenses incurred in connection with this Agreement and the ~~Expense Payment in cash~~transactions contemplated hereby. (e) If In the event this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(f), then~~ 8.1(h)(ii) a fee in immediately available United States Dollars in the amount of three million three hundred and seventythree thousand dollars ($3,373,000.00) shall be paid by the Parent to the Company ~~shall pay to Parent the Expense Payment~~within two (2) Business Days of termination. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part For purposes of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into~~ this Agreement, “Termination Fee” shall mean a fee in immediately available United States Dollars equal to three million three hundred and seventythree thousand dollars ($3,373,000.00). (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 9.3 all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the ~~Merger is consummated~~Closing occurs; provided, however, that Xcyte shall pay all fees and expenses incurred by it in connection with the filing, printing and mailing of the Form S-4 Registration Statement and the Proxy Statement/Prospectus and any amendments or supplements thereto. (b) If (i) this Agreement is terminated by ~~Parent~~ Xcyte or Seller pursuant to Section ~~9.1(b), then~~ 9.1(e) and at any time before the ~~Company~~ Xcyte Stockholders’ Meeting an Acquisition Proposal with respect to Xcyte shall ~~pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7~~ have been ~~satisfied~~ publicly announced, disclosed or ~~waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required~~ otherwise communicated to ~~pay to Parent the Expense Payment;~~ Xcyte’s board of directors and (ii) ~~provided~~within six months following such termination, ~~further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is~~ Xcyte enters into a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) definitive agreement with respect to such ~~Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement~~Acquisition Transaction, ~~the Company shall not pay to Parent the Expense Payment and Parent~~ Xcyte shall pay to Seller, a nonrefundable fee in an amount equal to $100,000. Such fee shall be paid within five Business Days after the ~~Company $400,000~~execution of such definitive agreement. (c) If (i) this Agreement is terminated by ~~Parent~~ Xcyte or ~~the Company~~ Seller pursuant to Section ~~9.1(b~~9.1(d) and at any time before the Seller Stockholders’ Meeting an Acquisition Proposal with respect to Seller shall have been publicly announced, disclosed or ~~Section 9.1(d),~~ otherwise communicated to Seller’s board of directors and (ii) ~~at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12~~ within six months ~~after the date of~~ following such termination, ~~either an Acquisition Transaction is consummated or~~ Seller enters into a definitive agreement ~~relating~~ with respect to an such Acquisition ~~Transaction is entered into~~Transaction, ~~then the Company~~ Seller shall pay to ~~Parent the Expense Payment and~~ Xcyte, a ~~non-refundable~~ nonrefundable fee in an amount equal to $100,000. Such fee shall be paid within five Business Days after the ~~amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of~~ execution of such definitive agreement~~; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by such Party under ~~this~~ Section 9.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section 9.3; , and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Stock Purchase Agreement, Stock Purchase Agreement (Xcyte Therapies Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with: (i) the filing, printing and mailing of the Offer Documents and the Schedule 14D-9 and any amendments or supplements thereto; (ii) the retention of any information agent, depositary or other service provider in connection with the Offer; and (iii) the filing by Parent and the Company of the premerger notification and report forms relating to the Contemplated Transactions under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust or competition-related Legal Requirement. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(c) or Section ~~9.1(d),~~ 8.1(d) and: (iii) at or prior to the time of ~~the~~ such termination ~~of this Agreement~~ an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, ; and (~~iii~~ii) ~~on or prior to~~ within 12 months after the date of any such termination, ~~either~~ an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is consummated or a definitive agreement ~~relating to~~ contemplating an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is ~~entered into~~executed, then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment and~~ earlier of the time such Acquisition Transaction is consummated or the time such definitive agreement is executed, a non-refundable fee in the amount of $~~600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~37,500,000; provided, however, ~~that, solely~~ that for purposes of ~~this Section 9.3(b~~clause “(ii)” above, all references to “15%” in the definition of “Acquisition ~~Transaction”~~ Transaction shall be deemed to ~~refer instead~~ be references to “5035%.” (dc) If this Agreement is terminated by by: (i) Parent pursuant to Section ~~9.1(e~~8.1(e)~~, or if this Agreement is terminated~~ ; (ii) by Parent or the Company pursuant to any other provision of Section ~~9.1 at any time after~~ 8 during the 15 business day period immediately following the occurrence of a Triggering Event~~, then~~ ; or (iii) by the Company ~~shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent~~ pursuant to Section ~~9.1(f~~8.1(f), then the Company shall pay to ~~Parent~~ Parent, in cash, a non-refundable fee in the ~~Expense Payment.~~ amount of $37,500,000. In the case of termination of this Agreement in the manner set forth in clauses “(~~f) Unless otherwise provided in~~ i)” or “(ii)” of this Section ~~9.3~~8.3(c), ~~any~~ the fee ~~required~~ referred to ~~be paid pursuant to this Section 9.3~~ in the preceding sentence shall be paid ~~and made~~ by the Company within two business days after such termination; and in the case of termination of this Agreement in the manner set forth in clause “(iii)” of this Section 8.3(c), the fee referred to in the preceding sentence shall be paid by the Company immediately prior to or concurrently with such termination. (gd) If this Agreement is terminated by: (i) Parent pursuant to Section 8.1(d) and: (A) at the time of such termination, each of the Offer Conditions has been satisfied or waived (other than: (1) the condition set forth in clause “(j)” of Exhibit B (the “Funding Condition”); (2) the condition set forth in clause “(l)” of Exhibit B; (3) the condition set forth in clause “(k)” of Exhibit B; and (4) the Minimum Condition unless, between the seventh and fifth business day immediately prior to the Outside Date, Parent: (x) acting reasonably and in good faith, believes (and publicly announces such belief) that it or Acquisition Sub will receive the Financing by the Outside Date (which public announcement shall not have been subsequently adversely modified or withdrawn); and (y) on or prior to such date, shall have waived the Funding Condition, in which case the Minimum Condition must also have been satisfied); (B) at the time of such termination, Parent and Acquisition Sub have not received the Financing; and (C) the failure of Parent and Acquisition Sub to receive the Financing is not attributable to a breach of: (1) Section 6.12(b); or (2) any covenant or obligation of the Company contained in this Agreement or any other action or failure to act of the Company, in each case, that has caused any condition set forth in Exhibit B of the Commitment Letter not to be satisfied; or (ii) the Company pursuant to Section 8.1(d) and: (A) at the time of such termination, each of the Offer Conditions has been satisfied or waived (other than: (1) the Funding Condition; (2) the condition set forth in clause “(l)” of Exhibit B; (3) the condition set forth in clause “(k)” of Exhibit B; and (4) the Minimum Condition unless, between the seventh and fifth business day immediately prior to the Outside Date, Parent: (x) acting reasonably and in good faith, believes (and publicly announces such belief) that it or Acquisition Sub will receive the Financing by the Outside Date (which public announcement shall not have been subsequently adversely modified or withdrawn); and (y) on or prior to such date, shall have waived the Funding Condition, in which case the Minimum Condition must also have been satisfied); (B) at the time of such termination, Parent and Acquisition Sub have not received the Financing; (C) the failure of Parent and Acquisition Sub to receive the Financing is not attributable to a breach of: (1) Section 6.12(b); or (2) any covenant or obligation of the Company contained in this Agreement or any other action or failure to act of the Company, in each case, that has caused any condition set forth in Exhibit B of the Commitment Letter not to be satisfied; and (D) the Company shall have given Parent written notice at least two business days prior to termination stating the Company’s intention to terminate this Agreement pursuant to Section 8.1(d) (and the basis for such termination), then Parent shall pay to the Company, a non-refundable fee in the amount of $25,000,000 (the “Reverse Termination Fee”). In the case of the termination of this Agreement by the Company pursuant to Section 8.1(d) under the circumstances set forth in the first sentence of this Section 8.3(d), the Reverse Termination Fee shall be paid by Parent within two business days after such termination and, in the case of the termination of this Agreement by Parent pursuant to Section 8.1(d) under the circumstances set forth in the first sentence of this Section 8.3(d), the Reverse Termination Fee shall be paid by Parent at or prior to the time of such termination. Notwithstanding anything to the contrary contained in Section 8.2, Section 8.3, Section 9.12 or elsewhere in this Agreement, except in the case of a Willful Breach, if this Agreement is terminated under the circumstances set forth in the first sentence of this Section 8.3(d), the Company’s right to receive the Reverse Termination Fee pursuant to this Section 8.3(d) shall be the sole and exclusive remedy of the Acquired Corporations and their respective stockholders and Affiliates against Parent or any of its Related Persons for, and the Acquired Corporations (on their own behalf and on behalf of their respective stockholders and Affiliates) shall be deemed to have waived all other remedies (including equitable remedies) with respect to: (1) any failure of the Offer or the Merger to be consummated; (2) any breach by Parent or Acquisition Sub of its obligation to consummate the Offer or the Merger or any other provision set forth in this Agreement; (3) any inaccuracy in any representation or warranty set forth in this Agreement, including any representation or warranty set forth in Section 4.13 or relating to the Financing (regardless of whether such representation or warranty refers specifically to such Financing); and (4) any breach of any of the covenants or obligations set forth in this Agreement, including any covenant or obligation set forth in Section 6.12(a) or relating to the Financing (regardless of whether such covenant or obligation refers specifically to such Financing), unless such inaccuracy or breach constitutes a Willful Breach. Upon payment by Parent of the Reverse Termination Fee pursuant to this Section 8.3(d), except in the case of a Willful Breach, neither Parent nor any of its Related Persons shall have any further liability or obligation (under this Agreement or otherwise) relating to or arising out of this Agreement or any of the Contemplated Transactions, and, except in the case of a Willful Breach, in no event shall any Acquired Corporation (and the Company shall ensure that the Acquired Corporations’ Affiliates do not) seek to recover any money damages or losses, or seek to pursue any other recovery, judgment, damages or remedy (including any equitable remedy) of any kind, in connection with this Agreement or the Contemplated Transactions. (e) Each ~~party~~ of the Company and Parent acknowledges and agrees that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 8.3, are an integral part of the Contemplated Transactions, and that, without these ~~covenants and obligations~~agreements, ~~such party~~ Parent would not have entered into this Agreement. . Accordingly, if: (hi) ~~If either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3~~8.3, then: (iA) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such ~~party~~ overdue amount and the enforcement by Parent of its rights under this Section 8.3; and (B) the 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 300 basis points over the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid; and (ii) Parent fails to pay when due any amount payable under this Section 8.3, then: (A) Parent shall reimburse the ~~other party~~ Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the ~~other party~~ Company of its rights under this Section ~~9.3~~8.3; and (iiB) ~~the first party~~ Parent shall pay to the ~~other party~~ Company 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 the ~~other party~~ Company in full) at a rate per annum ~~500~~ equal to 300 basis points over the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Opnet Technologies Inc), Merger Agreement (Riverbed Technology, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that if this Agreement is terminated by Parent pursuant to Section 9.1(b), (c), (d), (e), (f) or (h) or by Company pursuant to Section 9.1(b), (d) or (j), then (without limiting any obligation of Company to pay any fee payable pursuant to Section 9.3(b) or Section 9.3(d)) Company shall make a nonrefundable cash payment to Parent, at the time specified in Section 9.3(c), in an amount equal to the aggregate amount of all fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger or any other Contemplated Transaction; further provided, however, that the amount of the nonrefundable cash fee payable to Parent may not exceed $500,000, exclusive of fees and expenses (including reasonable attorneys' fees) that Parent incurs in connection with any Proceeding challenging or seeking to restrain or prohibit the Merger or any of the Contemplated Transactions. (b) If this Agreement is terminated by Parent or Company pursuant to Section 9.1(d), then (unless Parent is then entitled to receive a fee pursuant to Section 9.3(d)) Company shall pay to Parent, in cash at the time specified in Section 9.3(c) (and in addition to the amounts payable by Company pursuant to Section 9.3(a)), a nonrefundable fee in an amount equal to $1,050,000. (c) In the case of termination of this Agreement by Company pursuant to Section 9.1(b), ~~then the Company shall pay~~ (d) or (j), any nonrefundable payment required to ~~Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions~~ be made pursuant to the ~~Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16~~proviso to Section 9.3(a) shall be made, ~~the~~ and any fee payable pursuant to Section 9.3(b) shall be paid, by Company ~~shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions~~ prior to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result time of such ~~Legal Proceeding~~ termination; and ~~would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed~~in the case of termination of this Agreement by Parent pursuant to Section 9.1(b), (iic), (d), (e), (f) ~~the claim(s) with respect~~ or (h), any nonrefundable payment required to ~~such Legal Proceeding has been timely and duly reported~~ be made pursuant to the ~~carrier for the Company’s directors~~ proviso to Section 9.3(a) shall be made, and ~~officers and/or errors and omissions insurance and (iii~~any fee payable pursuant to Section 9.3(b) ~~Parent terminates this Agreement~~shall be paid, ~~the~~ by Company ~~shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000~~within two business days after such termination. (cd) If ~~(i)~~ this Agreement is terminated by (i) Parent or ~~the~~ Company pursuant to Section 9.1(b) or ~~Section 9.1(d),~~ (iid) and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and ~~(iii) on or prior to~~ the transaction described in such Acquisition Proposal is consummated within 12 months ~~after the date of~~ following such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (~~the “Fee”~~ii) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or ~~if this Agreement is terminated by Parent or the~~ (iii) Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~9.1(j), then ~~the~~ Company shall pay to ~~Parent~~ Parent, in cash at the ~~Fee~~ time specified in the next sentence (and in addition to the ~~Expense Payment~~ amounts payable pursuant to Section 9.3(a)), a nonrefundable fee in ~~cash.~~ the amount equal to $1,750,000; provided, however, that if Company (eA) If receives a Significant Proposal within 30 days of the date of this Agreement ~~is terminated~~ and (B) terminates the Agreement pursuant to Section 9.1(j) before the earlier of (y) 45 days from the date of this Agreement or (z) the date of mailing of the proxy statement contemplated pursuant to Section 5.1 in connection with entering into a written agreement that constitutes a Superior Proposal and contains terms and conditions that are not materially different than the terms and conditions of the Significant Proposal, the nonrefundable fee payable to Parent pursuant to this Section 9.1(d) shall be $1,000,000. In the case of termination of this Agreement by Company pursuant to Section 9.1(b), (d) or (j), the fee referred to in the preceding sentence shall be paid by Company prior to the time of such termination, except that in the case of termination by Company pursuant to Section 9.1(b) or (d), any termination fee payable pursuant to Section 9.3(d)(i) shall be paid by Company on the date of consummation of the acquisition described in such Acquisition Proposal, provided such consummation occurs within 12 months from the date of termination. In the case of termination of this Agreement by Parent pursuant to Section ~~9.1(f~~9.1(b), ~~then~~ (d) or (e), the ~~Company shall pay~~ fee referred to ~~Parent~~ in the ~~Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3~~ preceding sentence shall be paid ~~and made~~ by Company within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (he) If ~~either party~~ Company fails to pay when due any amount payable under this Section 9.3, ~~then:~~ then (i) ~~such party~~ Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section 9.3; , and (ii) ~~the first party~~ Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500 basis points~~ equal to the greater of (i) 4% over the “"prime rate” " (as ~~announced by Bank of America, N.A. or any successor thereto~~published in the Wall Street Journal) in effect on the date such overdue amount was originally required to be ~~paid~~paid or (ii) 8.25%.

Appears in 2 contracts

Samples: Merger Agreement (Greka Energy Corp), Merger Agreement (Greka Energy Corp)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If In the event that: (i) this Agreement is terminated by the Company pursuant to Section 7.1(e); (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~7.1(d)~~, then the Company shall pay to Parent the Expense Payment;~~; or (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000.~~ (~~c) If (i~~A) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~7.1(b) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to proviso (y) to Section 7.1(b)) or Section ~~9.1(d~~7.1(f) or by Parent pursuant to Section 7.1(g), (iiB) at any Person shall have publicly disclosed a bona fide Acquisition Proposal or ~~prior~~ an Acquisition Proposal has otherwise been communicated to the ~~time~~ Board of Directors after the ~~termination~~ execution and delivery of this Agreement an and prior to such termination and such Acquisition Proposal has not been unconditionally, and in the case of a publicly disclosed Acquisition Proposal, publicly withdrawn prior to such termination and (C) within twelve (12) months of such termination the Company shall have ~~been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or~~ entered into a definitive agreement ~~relating to~~ with respect to, or consummated, an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreementProposal; ~~provided, however, that, solely~~ provided that for purposes of this ~~Section 9.3(b), all~~ clause (C) the references to “1520%” in the definition of “Acquisition ~~Transaction~~Proposal” shall be deemed to ~~refer instead~~ be references to “50100%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.;

Appears in 2 contracts

Samples: Merger Agreement (Mirati Therapeutics, Inc.), Merger Agreement (Mirati Therapeutics, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys' and accountants' fees, incurred in connection with (A) the filing, printing and mailing of the Form S-4 Registration Statement and the Proxy Statement and any amendments or supplements thereto and (B) the filing by the parties hereto of the pre-merger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation. (b) If In the case of termination of this Agreement ~~is terminated~~ by Parent or the Company pursuant to Section 8.1(b) or Section 8.1(d), the Termination Fee (as defined in Section 8.3(c)) shall be paid by the Company at or prior to the consummation of any Acquisition Transaction referred to in Section 8.3(c)(i) or 8.3(c)(ii), as the case may be; in the case of termination of this Agreement by Parent pursuant to Section ~~9.1(b~~8.1(e), ~~then~~ the Termination Fee shall be paid by the Company ~~shall pay~~ within two (2) business days after such termination; and in the case of termination of this Agreement by the Company pursuant to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16Section 8.1(h), the Termination Fee shall be paid by the Company ~~shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied~~ at or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect prior to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000termination. (c) If (i) (A) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(d), (B) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made, (C) such Acquisition Proposal shall not have been unconditionally and publicly withdrawn by the Person making such Acquisition Proposal at least five (5) business days prior to the date of the Company Stockholders' Meeting; provided however, that in the event such Acquisition Proposal is not withdrawn at least five (5) business days prior to the Company Stockholders' Meeting, the Company shall, at Parent's request, postpone the Company Stockholders' Meeting for five (5) business days, and (D) within nine (9) months after such termination the Company consummates any Acquisition Transaction, (ii) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b), (B) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or ~~made~~made (C) such Acquisition Proposal shall not have been unconditionally and publicly withdrawn by the Person making such Acquisition Proposal at least five (5) business days prior to February 28, 2001, (D) within nine (9) months after such termination the Company consummates any Acquisition Transaction, and (~~iii~~E) on Parent shall not have taken or ~~prior~~ failed to ~~12 months after~~ take any action, which action or failure to act constitutes a material breach of the ~~date of such termination~~covenants and agreements set forth in this Agreement, ~~either an Acquisition Transaction is~~ that can be shown to be a significant contributing factor to the Merger failing to be consummated ~~or a definitive agreement relating to an Acquisition Transaction is entered into~~by February 28, ~~then~~ 2001, and (F) the Company shall ~~pay~~ have taken or failed to ~~Parent~~ take any action, which action or failure to act constitutes a breach of the ~~Expense Payment~~ covenants and agreements set forth in this Agreement, that can be shown to be a ~~non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior~~ significant contributing factor to the ~~earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided~~Merger failing to be consummated by February 28, ~~however~~2001, ~~that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.”~~ (diii) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~8.1(e), or if (iv) this Agreement is terminated by ~~Parent or~~ the Company pursuant to ~~any other provision~~ Section 8.1(h), then, in each case of ~~Section 9.1 at any time after the occurrence of a Triggering Event~~clauses (i) through (iv) above, ~~then~~ the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Fee and~~ time specified in the ~~Expense Payment~~ next sentence, a nonrefundable fee in ~~cash~~the amount equal to $135,000,000. Notwithstanding anything to the contrary contained herein, solely for purposes of determining whether any fee shall be payable under clauses (i) or (ii) of this Section 8.3(c), the reference to "15%" in each place it appears in the definition of "Acquisition Transaction" set forth in Exhibit A hereto shall be replaced with "50%". (ed) If ~~this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section ~~9.3~~8.3, ~~then: (i) such party shall reimburse~~ then the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500 basis points over~~ equal to the “"prime rate” " (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Applied Micro Circuits Corp), Agreement and Plan of Merger and Reorganization (Applied Micro Circuits Corp)

Expenses; Termination Fees. (a) ~~Except as set forth~~ Each reference to “$600,000,000” in ~~this~~ Section ~~9.2, all fees~~ 8.3(c) and ~~expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such fees and expenses, whether or not~~ Section 8.3(e) of the Merger Agreement is ~~consummated~~hereby replaced by a reference to “$800,000,000.” (b) ~~If this~~ The reference to “$75,000,000” in Section 8.3(c) of the Merger Agreement is ~~terminated~~ hereby replaced by ~~Parent pursuant~~ a reference to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company “$~~400,000~~200,000,000.” (c) The first sentence of Section 8.3(b) of the Merger Agreement is hereby amended and restated to read as follows: “If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(b), (ii) at or prior to the time of the termination of this Agreement an a proposal or offer for a Specified Acquisition ~~Proposal~~ Transaction shall have been publicly disclosed, announced, commenced, submitted or made, (iii) at the time of the termination of this Agreement, the conditions set forth in Sections 6.7 and 7.6 shall have been satisfied but a final vote by the holders of Company Common Stock on the adoption of this Agreement shall not have taken place, and (iv) on or prior to the first anniversary of such termination, a definitive agreement (which shall not include a confidentiality agreement, letter of intent or other similar agreement that does not obligate the parties thereto, subject to the satisfaction or waiver of the conditions set forth therein, to consummate a Specified Acquisition Transaction) relating to a Specified Acquisition Transaction is entered into, then the Company will pay to Parent, contemporaneously with entering into such definitive agreement, a nonrefundable fee in the amount of $800,000,000 in cash (it being understood that in no event shall the Company be required to pay a fee of $800,000,000 on more than one occasion pursuant to this Section 8.3), minus any amount actually previously paid by the Company to Parent pursuant to Section 8.3(c)(ii), on or prior to the date of consummation of such Specified Acquisition Transaction.” (d) Section 8.3(d) of the Merger Agreement is hereby amended and restated to read as follows: “If (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), (ii) prior to the adoption of this Agreement by the Required Company Vote a proposal or offer for a Specified Acquisition Transaction shall have been publicly disclosed, announced, commenced, submitted or made, and (iii) on or prior to ~~12 months after~~ the ~~date~~ first anniversary of such termination, ~~either an Acquisition Transaction is consummated or~~ a definitive agreement (which shall not include a confidentiality agreement, letter of intent or other similar agreement that does not obligate the parties thereto, subject to the satisfaction or waiver of the conditions set forth therein, to consummate a Specified Acquisition Transaction) relating to an a Specified Acquisition Transaction is entered into, then the Company ~~shall~~ will pay to ~~Parent the Expense Payment and~~ Parent, contemporaneously with entering into such definitive agreement, a ~~non-refundable~~ nonrefundable fee in the amount of $~~600,000 (the “Fee”)~~ 800,000,000 in cash (it being understood that in no event shall the Company be required to pay a fee of $800,000,000 on ~~or prior~~ more than one occasion pursuant to ~~the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of~~ this Section ~~9.3(b~~8.3), ~~all references~~ minus any amount actually previously paid by the Company to ~~“15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by~~ Parent pursuant to Section ~~9.1(e~~8.3(c)(ii), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.”

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Sprint Nextel Corp), Agreement and Plan of Merger (Starburst II, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Offer and Merger is are consummated. (b) If In the event that: (i) this Agreement is terminated by the Company pursuant to Section 8.1(e), the Company shall pay to Parent or its designee the Termination Fee by wire transfer of same day funds prior to or simultaneously with (and as a condition to the effectiveness of) such termination; (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~8.1(d), ~~then~~ the Company shall pay to Parent or its designee the ~~Expense Payment;~~Termination Fee by wire transfer of same day funds within one business day after such termination; or (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000.~~ (~~c) If (i~~x) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso to Section 8.1(b)) or by Parent pursuant to Section ~~9.1(d~~8.1(f) resulting from a willful and material breach of any covenant in this Agreement, (y) any Person shall have publicly disclosed a bona fide Acquisition Proposal, or such Acquisition Proposal has otherwise been communicated to the Board of Directors or the Company’s stockholders and shall have become publicly known, after the date hereof and prior to such termination and such Acquisition Proposal has not been unconditionally withdrawn prior to such termination and (z) within twelve (12) months of such termination the Board of Directors shall have approved or recommended any Acquisition Proposal (regardless of when made), ~~(ii) at or prior~~ and the Company shall have entered into a definitive agreement with respect to ~~the time of the termination of this Agreement an~~ such Acquisition ~~Proposal~~ Proposal, which shall have been ~~disclosed, announced, commenced, submitted or made, and~~ consummated (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely provided that for purposes of this ~~Section 9.3(b), all~~ clause (z) the references to “1520%” in the definition of “Acquisition ~~Transaction~~Proposal” shall be deemed to ~~refer instead~~ be references to “50%.” ~~(d) If this Agreement is terminated by Parent pursuant to Section 9.1(e~~), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then~~ the Company shall pay to Parent or its designee the Termination Fee ~~and~~ by wire transfer of same day funds prior to the ~~Expense Payment in cash~~consummation of such Acquisition Proposal. (ec) If It is understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. As used herein, “Termination Fee” shall mean a cash amount equal to $160,000,000. In any circumstance in which the Termination Fee becomes due and payable and is paid by the Company in accordance with this Section 8.3, the Termination Fee shall be deemed to be liquidated damages for, and the sole and exclusive monetary remedy available to Parent and Purchaser in connection with, any and all losses or damages suffered or incurred by Parent, Purchaser, any of their respective Affiliates or any other Person in connection with this Agreement ~~is terminated by~~ (collectively, “Parent ~~pursuant to Section 9.1(f~~Related Parties”) (and the termination hereof), ~~then~~ the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Purchaser or any of their respective Affiliates shall be entitled to bring or maintain any claim, action or proceeding against the Company ~~shall pay to Parent the Expense Payment. (f) Unless otherwise provided~~ or any of its Affiliates arising out of or in connection with this ~~Section 9.3~~Agreement, any ~~fee required~~ of the Transactions or any matters forming the basis for such termination. For the avoidance of doubt, Parent and Purchaser may seek specific performance to ~~be paid~~ cause the Company to consummate the Transactions in accordance with Section 9.5 or the payment of the Termination Fee pursuant to this Section ~~9.3~~ 8.3(c), but in no event shall Parent or Purchaser be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails entitled to ~~pay when due any amount payable under this Section 9.3, then:~~ both (i) ~~such party shall reimburse~~ specific performance to cause the ~~other party for all costs and expenses (including fees and disbursements of counsel) incurred~~ Company to consummate the Transactions in ~~connection~~ accordance with ~~the collection of such overdue amount and the enforcement by the other party of its rights under this~~ Section ~~9.3;~~ 9.5 and (ii) the ~~first party shall pay to the other party interest on such overdue amount (for the period commencing as~~ payment of the ~~date such overdue amount was originally required~~ Termination Fee pursuant to be paid and ending on the date such overdue amount is actually paid to the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paidthis Section 8.3(c).

Appears in 2 contracts

Samples: Merger Agreement (Forty Seven, Inc.), Merger Agreement (Gilead Sciences Inc)

Expenses; Termination Fees. (a) Except as set forth in Section 6.9 and this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ Offer, the Merger and the other transactions contemplated herein shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer and Merger is are consummated. Parent and the Company shall each pay fifty percent (50%) of (i) the filing fees, mailing expenses and printing expenses associated with the Offer and (ii) the filing fees payable pursuant to the HSR Act and any other applicable Antitrust Laws in connection with the Offer, the Merger and the other transactions contemplated by this Agreement. (b) If In the event that: (i) this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(b~~8.1(c), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) ~~provided, further, however, if (i) as of the End Date all of the conditions~~ this Agreement is terminated pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of~~ Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed8.1(e)~~, (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and~~ ; or (iii) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000.~~ (~~c) If (i~~A) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(d) or Section ~~9.1(d~~8.1(h) or by Parent pursuant to Section 8.1(f), (iiB) after the date of this Agreement and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been ~~disclosed, announced,~~ made or commenced, ~~submitted~~ or ~~made~~an intention to make or commence any Acquisition Proposal shall have been publicly proposed or announced, and (~~iii~~C) ~~on or prior to 12~~ the Company consummates any Acquisition Proposal within twelve (12) months after such termination or the ~~date of such termination, either an Acquisition Transaction is consummated or~~ Company enters into a definitive agreement ~~relating~~ within twelve (12) months after such termination to an effect any Acquisition ~~Transaction~~ Proposal that is ~~entered into~~subsequently consummated (provided that, for purposes of this Section 8.3(b)(iii), all percentages in the definition of Acquisition Proposal shall be replaced with 50%); then the Company shall pay to Parent ~~the Expense Payment and~~ a ~~non-refundable~~ fee in ~~the~~ an amount of equal to six million one hundred eighteen thousand eight hundred ten dollars ($~~600,000~~ 6,118,810) (the “Termination Fee”) by wire transfer of same-day funds (x) in ~~cash on or prior to~~ the ~~earlier~~ case of ~~the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this~~ Section ~~9.3(b~~8.3(b)(i), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two (2) business days after such termination, (y) in the case of Section 8.3(b)(ii), prior to or concurrently with the termination of this Agreement pursuant to Section 8.1(e), and (z) in the case of Section 8.3(b)(iii), concurrently with the consummation of the transactions contemplated by such Acquisition Proposal. For the avoidance of doubt, any payment made by the Company under this Section 8.3(b) shall be payable only once with respect to this Section 8.3(b) and not in duplication even though such payment may be payable under one or more provisions hereof. (gc) ~~Each party acknowledges~~ The Company and ~~agrees~~ Parent acknowledge and agree that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 8.3 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, and that, without these ~~covenants~~ agreements, the Company and ~~obligations, such party~~ Parent would not ~~have entered~~ enter into this Agreement~~. (h) If either party fails~~ . Subject to Section 8.2 and Section 9.6, this Section 8.3 shall be the sole and exclusive remedy of the Company, Parent and Purchaser in the event of termination of this Agreement. In the event that the Company shall fail to pay the Termination Fee when ~~due any amount payable under this Section 9.3~~due, ~~then: (i) such party~~ the term “Termination Fee” shall ~~reimburse~~ be deemed to include the reasonable costs and expenses actually incurred or accrued by the other party ~~for all costs~~ (including reasonable fees and expenses ~~(including fees and disbursements~~ of counsel) ~~incurred~~ in connection with the collection under and enforcement of ~~such overdue amount and the enforcement by the other party of its rights under~~ this Section ~~9.3; and (ii) the first party shall pay to the other party~~ 8.3, together with interest on such ~~overdue amount (for the period~~ unpaid Termination Fee, 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~~ that the ~~other party in full)~~ Termination Fee became due, at a rate ~~per annum 500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America~~published in The Wall Street Journal, ~~N.A. or any successor thereto)~~ Eastern Edition, in effect on the date such ~~overdue amount~~ payment was ~~originally~~ required to be ~~paid~~made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding).

Appears in 2 contracts

Samples: Merger Agreement (Datawatch Corp), Merger Agreement (Altair Engineering Inc.)

Expenses; Termination Fees. (a) ~~Except as set forth in this Section 9.2, all fees and expenses incurred in connection with this Agreement and~~ In the ~~Transactions shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated. (b) If~~ event that this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~7.1(e) or by the Company pursuant to Section 7.1(i), then the Company shall pay to Parent the ~~Expense Payment;~~ Termination Fee. The Termination Fee payable pursuant to this Section 7.3(a) shall be paid no later than the second (i2nd) ~~provided, however, if the only if as of the End Date all of the conditions~~ Business Day following termination pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required~~ Section 7.1(e) and concurrently with any termination pursuant to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed7.1(i), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (cb) If (i) after the date of this Agreement but prior to the termination of this Agreement in accordance with its terms, an Acquisition Proposal shall have been publicly announced or publicly disclosed and not withdrawn, (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section ~~9.1(b~~7.1(b) or Section ~~9.1(d), (ii~~7.1(c) ~~at or~~ where the failure of the Acceptance Time to occur prior to the ~~time~~ Outside Date is attributable to the failure of the ~~termination of this Agreement an Acquisition Proposal shall~~ Minimum Condition to have been ~~disclosed~~satisfied, ~~announced, commenced, submitted~~ or ~~made~~(B) by Parent pursuant to Section 7.1(f) for willful and material breach, and (iii) ~~on or prior to 12~~ within twelve (12) months after ~~the date of~~ such termination, ~~either~~ the Company (X) shall have entered into a definitive agreement with respect to an Acquisition Proposal and an Acquisition Transaction for such Acquisition Proposal is subsequently consummated or ~~a definitive agreement relating to~~ (Y) consummates an Acquisition ~~Transaction is entered into~~Transaction, then the Company shall pay to Parent the ~~Expense Payment and a non~~Termination Fee by wire transfer of same-~~refundable fee in the amount of $600,000 (the “Fee”) in cash~~ day funds on ~~or prior to the earlier of~~ the date ~~of consummation of~~ such ~~Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for~~ transaction is consummated. For purposes of this Section ~~9.3(b~~7.3(b), all references to “15twenty percent (20%)” in the definition of “Acquisition Transaction” ~~shall~~ will be deemed to ~~refer instead~~ be references to “fifty percent (50%).” (c) All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. (d) ~~If this Agreement is terminated by Parent pursuant~~ Subject to Section ~~9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to~~ 8.7 and notwithstanding any other provision of this Agreement to the contrary, each of Parent and Purchaser acknowledges and agrees on behalf of itself and its Affiliates that its receipt of the Termination Fee pursuant to Section ~~9.1~~ 7.3(a) or Section 7.3(b), if applicable, shall, except in the case of fraud or willful or intentional breach by the Company, constitute the sole and exclusive remedy under this Agreement of Parent and Purchaser and each of their Affiliates and Representatives. (e) Notwithstanding anything to the contrary in this Agreement, in no event shall Parent, Purchaser, Sponsor, or any of their respective former, current or future general or limited partners, shareholders, managers, members, directors, officers, Representatives or Affiliates (collectively, the “Parent Related Parties”) have any liability for monetary damages to the Company or the Company Subsidiaries or any of their respective former, current or future general or limited partners, shareholders, managers, members, directors, officers, Representatives or Affiliates (whether at law, in contract, in tort or otherwise) relating to or arising out of this Agreement or the transactions contemplated hereby, other than Sponsor’s obligations under the Guarantee and the Equity Commitment Letter and other than the obligations of Parent and Purchaser as provided herein. In no event shall the Company seek or obtain, nor shall it permit any ~~time after~~ of its Representatives to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery or monetary award against any Parent Related Party with respect to, this Agreement, the ~~occurrence~~ Equity Commitment Letter or the transactions contemplated hereby and thereby (including any breach by Sponsor, Parent or Purchaser), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure, other than from Parent or Purchaser to the extent expressly provided for in this Agreement or Sponsor to the extent expressly provided for in the Guarantee and the Equity Commitment Letter. In no event shall the Company or its Affiliates be permitted or entitled to receive both a ~~Triggering Event~~grant of specific performance and monetary damages. (f) Each of the Company and Parent acknowledges and agrees that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, ~~then~~ and that, without these agreements, neither the Company nor Parent would have entered into this Agreement; accordingly, if the Company fails to promptly pay the fee due pursuant to Section 7.3, and, in order to obtain such payment, Parent commences litigation that results in an award against the Company for such fee, the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all its costs and expenses (including reasonable attorneys’ fees and ~~disbursements of counsel~~expenses) ~~incurred~~ in connection with ~~the collection of~~ such ~~overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party~~ litigation, together with interest on ~~such overdue~~ the amount ~~(for~~ of the ~~period commencing as of~~ applicable fee from the date such ~~overdue amount~~ payment was ~~originally~~ required to be ~~paid and ending on~~ made until the date ~~such overdue amount is actually paid to~~ of payment at the ~~other party~~ prime lending rate as published in ~~full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto)~~ The Wall Street Journal in effect on the date such ~~overdue amount~~ payment was ~~originally~~ required to be ~~paid~~made, or such lesser rate as is the maximum permitted by applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.3, all fees and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that if this Agreement is terminated by: (i) Parent or the Company pursuant to Section 7.1(c); or (ii) either party pursuant to Section 7.1(d) and at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(a), the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements therefor. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to (x) Section ~~9.1(b~~7.1(c) or (y) Section ~~9.1(d~~7.1(d) (and at the time of termination pursuant to Section 7.1(d) the Company has breached (and failed to cure) its obligations to hold the Company Stockholders’ Meeting), ; and (ii) (A) at or prior to the time of such termination and following the ~~termination~~ date of this Agreement an Acquisition Proposal for an Acquisition Transaction shall have been publicly disclosed~~, announced, commenced, submitted or made,~~ ; and (~~iii~~B) ~~on or prior to~~ within 12 months after the date of any such termination, ~~either an~~ any Acquisition Transaction is consummated or a definitive agreement ~~relating to~~ contemplating an Acquisition Transaction is ~~entered into~~executed, then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment and~~ earlier of the time such Acquisition Transaction is consummated or the time such definitive agreement is executed, a non-refundable fee in the amount of $~~600,000~~ 500,000,000 (the “Termination Fee”) ~~in cash on or prior~~ less any Expenses previously paid pursuant to ~~the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~Section 7.3(a); provided, however, ~~that, solely~~ that for purposes of this Section ~~9.3(b~~7.3(b), all references to “15%” in the ~~definition~~ definitions of “Acquisition ~~Transaction”~~ Transaction and Acquisition Proposal shall be deemed to ~~refer instead~~ be references to “50%.” (c) If this Agreement is terminated by the Company pursuant to Section 7.1(h), then the Company shall pay to Parent, in cash concurrently with and as a condition to such termination, the Termination Fee. (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f7.1(e), then the Company shall pay to Parent, in cash within two Business Days after such termination, the Termination Fee. (e) If (i) this Agreement is terminated (A) by the Company or Parent pursuant to Section 7.1(b) (as it relates to any antitrust or competition-related Legal Requirements); (B) by the ~~Expense Payment~~Company pursuant to Section 7.1(g) due to a breach by Parent of Section 5.3 that results in the conditions set forth in Section 6.1(b) (as it relates to any antitrust or competition-related Legal Requirements), Section 6.1(c), Section 6.1(d) or Section 6.2(e) (as it relates to any antitrust or competition-related Legal Requirements) not being satisfied; or (C) by the Company or Parent pursuant to Section 7.1(d); and (ii) at the time of such termination (A) all conditions set forth in Section 6.1 and Section 6.2 are satisfied other than those conditions that by their terms are to be satisfied at the Closing and other than one or more of the conditions set forth in Section 6.1(b) (as it relates to any antitrust or competition-related Legal Requirements), Section 6.1(c), Section 6.1(d) or Section 6.2(e) (as it relates to any antitrust or competition-related Legal Requirements); and (B) the Company is ready and willing to consummate the Merger, then Parent will, within two Business Days following any such termination, pay to the Company or its designee in cash by wire transfer in immediately available funds to an account designated by the Company a non-refundable fee in the amount of $500,000,000 (the “Regulatory Fee”). (f) ~~Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid~~ Each of the Company and ~~made within two business days after such termination. (g) Each party~~ Parent acknowledges and agrees that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 7.3 are an integral part of the ~~Transactions~~Merger, and that, without these ~~covenants~~ agreements, Parent and ~~obligations, such party~~ the Company would not have entered into this Agreement~~. (h) If~~ . Accordingly, if either party fails to pay when due any amount payable under this Section ~~9.3~~7.3, then: (i) ~~such~~ the non-performing party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section ~~9.3~~7.3; and (ii) the ~~first~~ non-performing party shall pay to the other party 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 the other party~~ in full) at a rate per annum equal to 500 basis points over the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. The parties acknowledge and agree that in no event shall a party be required to pay the Termination Fee or the Regulatory Fee on more than one occasion. Each of the Company, Parent and Acquisition Sub acknowledges and agrees that the Regulatory Fee is not a penalty, but constitutes liquidated damages in a reasonable amount that will compensate the Company in circumstances in which the Regulatory Fee is payable. In the event that this Agreement is duly terminated under the circumstances described in Section 7.3(e) and the Regulatory Fee is payable pursuant to Section 7.3(e), then the Company’s right to receive payment of the Regulatory Fee pursuant to Section 7.3 shall be the sole and exclusive remedy of the Acquired Companies and their respective stockholders and Affiliates against Parent, any of Parent’s current or future Affiliates and any of their respective current or future Representatives for any and all losses that may be suffered resulting from, and the Acquired Companies (on their own behalf and on behalf of their respective stockholders and affiliates) shall be deemed to have waived all other remedies with respect to, a failure of the Merger to be consummated, and any breach by Parent or Acquisition Sub of its obligation to consummate the Merger or any other covenant, obligation, representation, warranty or other provision set forth in this Agreement. Upon payment of the Regulatory Fee in accordance with Section 7.3(e), neither Parent nor Acquisition Sub shall have any further liability or obligation relating to or arising out of this Agreement or the Merger.

Appears in 2 contracts

Samples: Merger Agreement (Intel Corp), Merger Agreement (Altera Corp)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~10.3 or in Section 8.10, all ~~fees and expenses~~ Transaction Costs incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and expenses~~Transaction Costs, whether or not the ~~Merger is~~ Mergers are consummated; provided, however, that Check-Cap and Keystone shall share equally all Transaction Costs incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by ~~Parent~~ Check-Cap or ~~the Company~~ Keystone pursuant to Section ~~9.1(b~~10.1(e) ~~or Section 9.1(d),~~ and (ii) (A) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Check-Cap Shareholder Meeting, an Acquisition Proposal with respect to Check-Cap shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made~~otherwise communicated to the Check-Cap Board and shall not have been withdrawn (provided that all references to 25% in the definition of Acquisition Transaction shall be treated as references to 50% for purposes of this clause (ii) of this Section 10.3(b)), and (~~iii~~B) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Check-Cap enters into a definitive agreement ~~relating~~ with respect to an Acquisition ~~Transaction is entered into~~Transaction, then ~~the Company~~ Check-Cap shall pay to ~~Parent the Expense Payment and~~ Keystone, within sixty (60) days as of such entry into a ~~non-refundable~~ definitive agreement with respect to an Acquisition Transaction, a nonrefundable fee in an amount equal to (1) $1,500,000 plus (2) fees and expenses incurred by Keystone in connection with the ~~amount of~~ Transactions not to exceed $~~600,000~~ 1,500,000 (the “Keystone Termination Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b)~~, all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~.” (da) If this Agreement is terminated by ~~Parent~~ Keystone pursuant to Section ~~9.1(e~~10.1(f), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event,~~ then ~~the Company~~ Check-Cap shall pay to ~~Parent the Fee and the Expense Payment in cash.~~ Keystone, within sixty (e60) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination, the Keystone Termination Fee. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Business Combination Agreement (Check-Cap LTD), Business Combination Agreement (Check-Cap LTD)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, Section 5.7(d), and Section 5.10, all ~~fees and expenses incurred in connection with this Agreement and~~ the ~~Transactions~~ Transaction Expenses shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. Notwithstanding the foregoing, the Company shall pay all fees and expenses incurred under clauses (b) and (d) of the definition of the Transaction Expenses. (b) If In the event that either: (i) (A) this Agreement is terminated pursuant to Section 9.1(b) or Section 9.1(e), (B) at any time after the date hereof and before such termination an Acquisition Proposal with respect to Parent shall have been either publicly announced or disclosed to Parent or the Parent Board, in each case after the date of this Agreement but prior to the termination of this Agreement and (C) within 12 months after the date of such termination, Parent consummates a Subsequent Transaction, whether or not in respect of the Acquisition Proposal referred to in clause (B); (ii) this Agreement is terminated by the Company pursuant to Section 9.1(f); or (iii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~9.1(j); then, ~~then the Company shall pay to Parent the Expense Payment; (i) provided~~in each case, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company an amount equal to $~~400,000~~250,000 (the “Company Termination Fee”) at the earliest to occur of: (A) consummation of such Subsequent Transaction, in the case of clause (i), (B) termination under clause (ii) or (C) termination under clause (iii). (c) If The Parties agree that, except in the case of fraud, (i) ~~this Agreement is terminated by Parent or~~ subject to Section 9.2, payment of the Company ~~pursuant to Section 9.1(b) or Section 9.1(d)~~Termination Fee shall, ~~(ii) at or prior to~~ in the ~~time~~ circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this ~~Agreement an Acquisition Proposal~~ Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have ~~been disclosed~~no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, ~~announced, commenced, submitted or made, and (iii) on or prior~~ any breach of this Agreement by Parent giving rise to ~~12 months after the date of~~ such termination, ~~either an Acquisition Transaction is consummated~~ or ~~a definitive agreement relating~~ the failure of the Contemplated Transactions to ~~an Acquisition Transaction is entered into~~be consummated, ~~then~~ (y) neither the Company nor any of its Affiliates shall ~~pay~~ be entitled to bring or maintain any other claim, action or proceeding against Parent ~~the Expense Payment and a non-refundable fee in the amount~~ or Merger Sub or seek to obtain any recovery, judgment or damages of ~~$600,000~~ any kind against such Parties (~~the “Fee”~~or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in ~~cash on~~ connection with or ~~prior~~ arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the ~~earlier~~ failure of the ~~date~~ Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of ~~consummation of such Acquisition Transaction~~ this Agreement or the ~~date~~ termination thereof, any breach by such Party giving rise to such termination or the failure of ~~execution of such definitive agreement~~the Contemplated Transactions to be consummated; provided, however, ~~that, solely for purposes of~~ that nothing in this Section ~~9.3(b~~9.3(c) shall limit the rights of any Party under Section 11.3(a)~~, all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~.” (d) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ Each of the ~~Company pursuant to any other provision of Section 9.1 at any time after~~ Parties acknowledges that (i) the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, ~~and that,~~ (ii) without these ~~covenants and obligations~~agreements, ~~such party~~ the Parties would not ~~have entered~~ enter into this ~~Agreement.~~ Agreement or the other Transaction Documents and (hiii) ~~If either party fails to pay when due~~ any amount payable ~~under~~ pursuant to this Section ~~9.3~~9.3 is not a penalty, ~~then: (i)~~ but rather is liquidated damages in a reasonable amount that will compensate the applicable Party in the circumstances in which such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paidpayable.

Appears in 2 contracts

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

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated~~. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b)~~; provided, ~~then~~ however, that Innovate and the Company shall ~~pay to Parent~~ also share equally all fees and expenses incurred by engagement of the ~~Expense Payment;~~Exchange Agent (such fees and expenses in this proviso, collectively, the “Shared Expenses”). (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (iA) this Agreement is terminated by ~~Parent or the Company~~ Innovate pursuant to Section ~~9.1(b~~9.1(d) ~~or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made,~~ and (~~iii~~B) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ the Company enters into a definitive written agreement ~~relating~~ with respect to ~~an Acquisition~~ a Company Subsequent Transaction ~~is entered into~~and ultimately consummates such Company Subsequent Transaction (which, for the avoidance of doubt, may be consummated any time within, on or after the date of such Agreement), then the Company shall ~~pay~~ pay, or cause to ~~Parent~~ be paid, to Innovate, upon the ~~Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of~~ consummation of such ~~Acquisition Transaction or the date of execution of such definitive agreement; provided~~Company Subsequent Transaction, ~~however, that, solely for purposes of this Section 9.3(b), all references~~ a nonrefundable fee in an amount equal to ~~“15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~$250,000.” (dii) If this Agreement is terminated by ~~Parent~~ Innovate pursuant to Section ~~9.1(e~~9.1(j), then Innovate shall pay, or ~~if this Agreement is terminated by Parent or~~ cause to be paid, to the ~~Company pursuant~~ Company, within two (2) Business Days of the date of such termination, a nonrefundable fee in an amount equal to ~~any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash~~$1,000,000. (eiii) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section 9.1(k), then the Company shall pay, or cause to be paid to Innovate, within two (2) Business Days of the date of such termination, a nonrefundable fee in an amount equal to $1,000,000. (iv) If this Agreement is terminated by the Company pursuant to Section 9.1(f), then Innovate shall pay, or cause to be paid, to the ~~Company~~ Company, within two (2) Business Days of the date of such termination, a nonrefundable fee in an amount equal to $250,000, which fee shall ~~pay~~ be increased to ~~Parent~~ $1,000,000 if within six (6) months after the ~~Expense Payment~~date of such termination, Innovate enters into a definitive written agreement with respect to an Innovate Subsequent Transaction. Each of the fees stated in this Section 9.3(b) is a “Termination Fee.” (fc) ~~Unless otherwise provided~~ The Parties agree that, except in the case of a material breach, the payment of the fees and expenses set forth in this Section 9.3, ~~any fee~~ subject to Section 9.2, shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall either Innovate or the Company be required to ~~be paid~~ pay fees or damages payable pursuant to this Section 9.3 on more than one occasion. Subject to Section 9.2, the payment of the fees and expenses set forth in this Section 9.3, and the provisions of Section 11.11, and except for any termination pursuant to Section 9.1(h), Section 9.1(i) or otherwise caused by a material breach of this Agreement, each of the Parties and their respective Affiliates will not have any liability, will not be entitled to bring or maintain any other claim, action or proceeding against the other, shall be ~~paid~~ precluded from any other remedy against the other, at law or in equity or otherwise, and ~~made within two business days after~~ shall not seek to obtain any recovery, judgment or damages of any kind against the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, affiliate, agent or other representative of such ~~termination.~~ Party) in connection with or arising out of the termination of this Agreement or the failure of the Merger and the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (gi) ~~Each party acknowledges and agrees that~~ the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 9.3, are an integral part of the Merger and the Contemplated Transactions, ~~and that,~~ (ii) without these ~~covenants and obligations~~agreements, ~~such party~~ the Parties would not ~~have entered~~ enter into this ~~Agreement.~~ Agreement and (hiii) ~~If either party fails to pay when due~~ any amount payable ~~under~~ pursuant to this Section 9.3, ~~then: (i)~~ is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paidpayable.

Appears in 2 contracts

Samples: Merger Agreement (Innovate Biopharmaceuticals, Inc.), Merger Agreement (Innovate Biopharmaceuticals, Inc.)

Expenses; Termination Fees. (a) Except as set forth in Section 6.13(b) and this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Offer and Merger is are consummated. (b) If In the event that: (i) this Agreement is terminated by the Company pursuant to Section 8.1(e); (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~8.1(d)~~, then the Company shall pay to Parent the Expense Payment~~; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000.~~ (~~c) If (i~~A) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b) ~~or Section 9.1(d), (ii)~~ and at ~~or prior to~~ the time of such termination the condition set forth in clause (e) of Annex I was satisfied (but in the case of a termination of by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso to Section 8.1(b)) or by Parent pursuant to Section 8.1(f); (B) any Person shall have publicly disclosed a bona fide Acquisition Proposal, or such Acquisition Proposal has otherwise been communicated to the Board of Directors or the Company’s stockholders and shall have become publicly known, after the date hereof and prior to such termination; and (C) within twelve (12) months of such termination the Company shall have entered into a definitive agreement with respect to an Acquisition Proposal ~~shall have been disclosed~~(which Acquisition Proposal is subsequently consummated, ~~announced, commenced, submitted~~ whether during or ~~made, and~~ following such twelve (~~iii~~12)-month period) on or ~~prior to 12 months after the date of such termination, either~~ consummated an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreementProposal; ~~provided, however, that, solely~~ provided that for purposes of this ~~Section 9.3(b), all~~ clause (C) the references to “1520%” in the definition of “Acquisition ~~Transaction~~Proposal” shall be deemed to ~~refer instead~~ be references to “50%.”; or (div) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~8.1(i); (c) then, in any such event under clause (i), (ii), (iii) or ~~if this Agreement is terminated by Parent or the Company pursuant to any other provision~~ (iv) of Section ~~9.1 at any time after the occurrence of a Triggering Event~~8.3(b), ~~then~~ the Company shall pay to Parent or its designee the Termination Fee ~~and~~ by wire transfer of same day funds (i) in the ~~Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to~~ case of Section ~~9.1(f~~8.3(b)(i), ~~then~~ prior to or substantially contemporaneously with (and as a condition to the ~~Company shall pay to Parent~~ effectiveness of) such termination, (ii) in the ~~Expense Payment.~~ case of Section 8.3(b)(ii) or Section 8.3(b)(iv), as promptly as practicable (~~f) Unless otherwise provided~~ and in ~~this Section 9.3~~any event, ~~any fee required to be paid pursuant to this Section 9.3 shall be paid and made~~ within two (2) business days after such termination. ), or (giii) ~~Each party acknowledges and agrees~~ in the case of Section 8.3(b)(iii), prior to or substantially contemporaneously with the consummation of the Acquisition Proposal referred to in clause (C) of Section 8.3(b)(iii); it being understood that in no event shall the ~~covenants and obligations contained in~~ Company be required to pay the Company Termination Fee on more than one occasion. As used herein, “Company Termination Fee” shall mean a cash amount equal to $300,000,000. Payment of the Company Termination Fee pursuant to this Section ~~9.3 are an integral part~~ 8.3(c) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Purchaser, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Purchaser or any of their respective Affiliates shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, any of the ~~Transactions~~Transactions or any matters forming the basis for such termination, other than with respect to claims for, arising out of or in connection with fraud or willful and ~~that, without these covenants and obligations, such party would not have entered into~~ material breach of this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Juno Therapeutics, Inc.)

Expenses; Termination Fees. (a) ~~Except as set forth in this Section 9.2, all fees and expenses incurred in connection with~~ If this Agreement ~~and the Transactions shall be paid~~ is terminated by the ~~party incurring~~ Company or Parent pursuant to Section 10.01(b)(iv), then Parent shall pay to the Company $60,000,000 (such ~~fees and expenses, whether or not~~ amount being the ~~Merger is consummated~~parties’ reasonable estimate of the Expenses of the Company) within one Business Day after such termination. (b) If this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~10.01(c)(i) or Section 10.01(c)(ii), then the Company shall pay to Parent $90,000,000 (the ~~Expense Payment;~~“Company Termination Fee”) within one Business Day after such termination. (ic) ~~provided, however, if~~ If this Agreement is terminated by the ~~only if as of the End Date all of the conditions~~ Company pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16,~~ Section 10.01(d)(i) then the Company shall ~~not be required to~~ pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely Company Termination Fee immediately before and as a ~~result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect~~ condition to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000termination. (cd) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~10.01(b)(i), Section 10.01(b)(iii) or Section ~~9.1(d~~10.01(c)(iii) and at the time of termination all conditions to the consummation of the Merger set forth in Article 9, other than the condition set forth in Section 9.01(a), have been satisfied or waived, (ii) ~~at or prior to the time of the termination of this Agreement~~ an Acquisition Proposal shall have been ~~disclosed~~made (or, in the case of termination by Parent or the Company pursuant to Section 10.01(b)(iii), publicly announced) after the date of this Agreement and not withdrawn prior to the Company Shareholder Meeting or the applicable breach, ~~commenced, submitted or made~~as the case may be, and (iii) ~~on or prior to~~ within 12 months ~~after~~ following the date of such termination, ~~either an Acquisition Transaction is consummated~~ the Company or any Subsidiary enters into a definitive agreement ~~relating~~ with respect to an Acquisition ~~Transaction~~ Proposal (which is ~~entered into, then the Company~~ thereafter consummated) or an Acquisition Proposal shall ~~pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000~~ have been consummated (~~the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely~~ provided that for purposes of this ~~Section 9.3(b~~clause (e), ~~all references~~ each reference to “15%” in the definition of “Acquisition ~~Transaction”~~ Proposal shall be deemed to ~~refer instead~~ be a reference to “5062.5%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the ~~Expense Payment~~Termination Fee after the consummation of the applicable transaction. (e) Any payment of the Company Termination Fee shall be made by wire transfer of immediately available funds to an account designated in writing by Parent to the Company. (f) ~~Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g)~~ Each ~~party~~ Party acknowledges ~~and agrees~~ that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 10.03 are an integral part of ~~the Transactions~~this Agreement, and that, without these ~~covenants~~ agreements, Parent, HoldCo, Merger Sub and ~~obligations, such party~~ the Company would not ~~have entered~~ enter into this Agreement~~. (h) If either party~~ ; accordingly, if the Company fails to promptly pay any applicable amount when due ~~any amount payable under~~ pursuant to this Section ~~9.3~~10.03, ~~then: (i)~~ and, in order to obtain such ~~party~~ payment, Parent, HoldCo or Merger Sub, as applicable, commences a Proceeding that results in a judgment against the Company for the fee set forth in this Section 10.03 or any portion of such fee, then the Company shall ~~reimburse the other party for~~ pay to Parent all reasonable costs and expenses (including reasonable attorneys’ fees and ~~disbursements of counsel~~expenses) incurred by Parent, its Affiliates and Representatives in connection with such suit, together with interest on such amount at the ~~collection~~ prime rate published in The Wall Street Journal on the date such payment was required to be made through the date of ~~such overdue amount~~ payment. Except as set forth in the preceding sentence or in the case of fraud, Parent, HoldCo and Merger Sub agree that, upon any termination of this Agreement under circumstances where the ~~enforcement~~ Company Termination Fee is payable by the ~~other party of its rights under~~ Company pursuant to this Section ~~9.3;~~ 10.03 and such Company Termination Fee is paid in full, Parent, HoldCo and Merger Sub shall be precluded from any other remedy against the Company, at law or in equity or otherwise, and neither Parent, HoldCo nor Merger Sub shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, shareholders or Affiliates or their respective Representatives in connection with this Agreement or the Transactions. (g) Parent shall pay, or cause to be paid, to the Company a fee equal to $132,500,000 (the “Parent Termination Fee”) if this Agreement is terminated (i) by the Company or Parent pursuant to Section 10.01(b)(i) (in the case of termination by Parent, only under circumstances in which the Company has a concurrent right to terminate pursuant to Section 10.01(b)(i)) and, as of the End Date, one or more of the conditions set forth in Section 9.01(d) (or, with respect to matters addressed in Section 9.01(d), Section 9.01(c)) shall not have been satisfied or waived and all other conditions set forth in Article 9 to the obligation of Parent to consummate the Merger have been satisfied or waived (other than any such conditions that by their nature cannot be satisfied until the Closing Date but subject to such conditions being capable of being satisfied or waived by Parent if the Closing Date were the date of termination), or (ii) by the ~~first party~~ Company or Parent pursuant to Section 10.01(b)(ii) in the event a Regulatory Impediment relates to an Antitrust Law; provided that, solely in the case of Section 10.03(g)(ii), Parent shall have no obligation to pay, or cause to be paid, to the Company the Parent Termination Fee if (A) there shall have been a Willful Breach of this Agreement by the Company or any of its Subsidiaries or (B) the condition set forth in Section 9.02(d) shall not have been satisfied. The Parent Termination Fee shall be paid within one Business Day after such termination by wire transfer of immediately available funds to an account designated in writing by the Company to Parent. Each Party acknowledges that the agreements contained in this Section 10.03(g) are an integral part of this Agreement, and that, without these agreements, Parent, HoldCo, Merger Sub and the Company would not enter into this Agreement; accordingly, if Parent fails to promptly pay any applicable amount when due pursuant to this Section 10.03(g), and, in order to obtain such payment, the Company commences a Proceeding that results in a judgment against Parent for the fee set forth in this Section 10.03(g) or any portion of such fee, then Parent shall pay to the ~~other party~~ Company all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Company, its Affiliates and Representatives in connection with such suit, together with interest on such ~~overdue~~ amount ~~(for~~ at the ~~period commencing as of the date such overdue amount was originally required to be paid and ending~~ prime rate published in The Wall Street Journal on the date such overdue amount is actually paid to the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount payment was ~~originally~~ required to be ~~paid~~made through the date of payment. Except as set forth in the preceding sentence or in the case of fraud, the Company agrees that, upon any termination of this Agreement under circumstances where the Parent Termination Fee is payable by Parent pursuant to this Section 10.03(g) and such Parent Termination Fee is paid in full, the Company shall be precluded from any other remedy against Parent, at law or in equity or otherwise, and the Company shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Parent or any of Parent’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, shareholders or Affiliates or their respective Representatives in connection with this Agreement or the Transactions.

Appears in 2 contracts

Samples: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2, all fees and expenses incurred in connection with this Agreement and~~ 9.3 the ~~Transactions~~ Transaction Expenses shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If If: (i) (A) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(e) or Section 9.1(h), (B) an Acquisition Proposal with respect to Parent shall have been publicly announced, disclosed or otherwise communicated to Parent or the Parent Board at any time after the date of this Agreement but prior to the termination of this Agreement (which shall not have been withdrawn) and (C) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (B) or in respect of any other Acquisition Proposal; or (ii) this Agreement is terminated by the Company pursuant to Section 9.1(f) (or, at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 9.1(f)); then Parent shall pay to the Company a nonrefundable fee in an amount equal to $3,000,000 (the “Company Termination Fee”), in the case of Section 9.3(b)(i), upon the consummation of such Subsequent Transaction or, in the case of Section 9.3(b)(ii), concurrently with the termination of this Agreement plus any amount payable to the Company pursuant to Section 9.3(f). (c) If: (i) (A) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(d), or Section 9.1(i), (B) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company or the Company Board at any time after the date of this Agreement but prior to obtaining the Required Company Stockholder Vote (which shall not have been withdrawn, (1) in the case of a termination pursuant to Section 9.1(b) or Section 9.1(i), at the time the Required Company Stockholder Vote is obtained and (2) in the case of a termination pursuant to Section 9.1(d), at the time of such termination) and (C) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (B) or in respect of any other Acquisition Proposal; or (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~9.1(g) (or, at the time this Agreement is terminated, Parent had the right to terminate this Agreement pursuant to Section 9.1(g)), then the Company shall pay to Parent a nonrefundable fee in an amount equal to $3,000,000 (the ~~Expense Payment; (i) provided~~“Parent Termination Fee”), ~~however, if~~ in the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) case of Section ~~7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result~~ 9.3(c)(i), upon the consummation of such ~~Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist~~Subsequent Transaction or, ~~was settled or otherwise dismissed~~in the case of Section 9.3(c)(ii), ~~(ii) the claim(s)~~ concurrently with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay plus any amount payable to Parent ~~the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior~~ pursuant to ~~the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this~~ Section ~~9.3(b~~9.3(f)~~, all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~.” (d) (i) If this Agreement is terminated ~~by Parent~~ pursuant to Section 9.1(e) or Section 9.1(h) or (ii) in the event of the failure of the Company to consummate the transactions to be contemplated at the Closing solely as a result of a Parent Material Adverse Effect as set forth in Section 8.4 (provided, that at such time all of the other conditions precedent to Parent’s obligation to close set forth in Section 6 and Section 7 have been satisfied by the Company, are capable of being satisfied by the Company or have been waived by Parent), ~~or if~~ then Parent shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement ~~is terminated~~ and the Contemplated Transactions (such expenses, collectively, the “Third Party Expenses”), up to a maximum of $1,500,000, by ~~Parent or~~ wire transfer of same-day funds within ten (10) Business Days following the date on which the Company submits to Parent true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that such Third Party Expenses shall not include any amounts for financial advisors to the Company except for reasonably documented out-of-pocket expenses otherwise reimbursable by the Company to such financial advisors pursuant to the terms of the Company’s engagement letter or similar arrangement with such financial advisors. For the avoidance of doubt, to the extent any ~~other provision of Section 9.1 at~~ Third Party Expenses are paid, such amounts shall be credited against any ~~time after the occurrence of a Triggering Event, then the~~ Company ~~shall pay to Parent the~~ Termination Fee ~~and the Expense Payment in cash~~which becomes payable thereafter. (e) (i) If this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(f)~~9.1(d) or Section 9.1(i) or (ii) in the event of the failure of Parent to consummate the transactions to be consummated to the Closing solely as a result of a Company Material Adverse Effect as set forth in Section 7.4 (provided, ~~then~~ that at such time all of the other conditions precedent to the Company’s obligation to close set forth in Section 6 and Section 8 have been satisfied by Parent are capable of being satisfied by Parent or have been waived by the Company, the Company shall ~~pay~~ reimburse Parent for all Third Party Expenses incurred by Parent up to a maximum of $1,500,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Parent submits to the Company true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that such Third Party Expenses shall not include any amounts for financial advisors to Parent except for reasonably documented out-of-pocket expenses otherwise reimbursable by Parent to such financial advisors pursuant to the ~~Expense Payment~~terms of Parent’s engagement letter or similar arrangement with such financial advisors. For the avoidance of doubt, to the extent any Third Party Expenses are paid, such amounts shall be credited against any Parent Termination Fee which becomes payable thereafter. (f) ~~Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to~~ Any Company Termination Fee or Parent Termination Fee due under this Section 9.3 shall be paid ~~and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part~~ by wire transfer of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h)~~ same day funds. If ~~either party~~ a Party fails to pay when due any amount payable by it under this Section 9.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section 9.3; , and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 ~~the~~ other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America, N.A.~~ published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent (3%). (g) The Parties agree that, subject to Section 9.2, (i) payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement under the circumstances described in Section 9.3(b), it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(g) shall limit the rights of Parent and Merger Sub under Section 10.11. (h) The Parties agree that, subject to Section 9.2, (i) payment of the Parent Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement under the circumstances described in Section 9.3(c), it being understood that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Parent Termination Fee (x) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against the Company (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of the Company) in connection with or arising out of this Agreement or the termination thereof, any breach by the Company giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(h) shall limit the rights of the Company under Section 10.11. (i) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the applicable Party in the circumstances in which such amount is payable.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Allos Therapeutics Inc), Merger Agreement (Spectrum Pharmaceuticals Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~6.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Business Combination is consummated; provided, however, that Applied and TEL shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with: (i) the filing, printing and mailing of the Form S-4 Registration/Proxy Statement, the FSA Registration Statement and TEL Convocation Materials and any amendments or supplements thereto; and (ii) the filing by the Parties of any notice or other document under any applicable antitrust or competition Legal Requirement. (b) If this Agreement is ~~terminated~~ terminated: (i) by ~~Parent~~ Applied pursuant to Section ~~9.1(b~~6.1(f), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; ; (ii) ~~provided, further, however, if (i) as of the End Date all of the conditions~~ by TEL pursuant to ~~the Closing in ARTICLE 7 have been satisfied~~ Section 6.1(i); or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated~~ by ~~Parent~~ Applied or ~~the Company~~ TEL pursuant to Section ~~9.1(b) or Section 9.1(d~~6.1(e), and in the case of clause “(iiiii)” of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to a TEL Entity shall have been disclosed, announced, commenced, submitted or ~~made,~~ made and shall not have been withdrawn; and (~~iii~~B) on or prior to ~~12 months after~~ the ~~date~~ first anniversary of such ~~termination~~termination of this Agreement, ~~either~~ either: (1) an Acquisition Transaction with respect to a TEL Entity is ~~consummated~~ consummated; or (2) a definitive agreement relating to an Acquisition Transaction ~~is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000~~ (~~the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however,~~ it being understood that, ~~solely~~ for purposes of this ~~Section 9.3(b~~clause “(B)~~, all references~~ ,” each reference to “15%” in the definition of “Acquisition Transaction” in Exhibit A shall be deemed to ~~refer instead~~ be a reference to “5040%”) with respect to a TEL Entity is entered into by a TEL Entity, then TEL shall pay to Applied, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $400,000,000 (the “TEL Termination Fee”). The TEL Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence, within two Business Days after termination of this Agreement; (y) in the case of clause “(ii)” of the preceding sentence, simultaneously with the termination of this Agreement; and (z) in the case of clause “(iii)” of the preceding sentence, within two Business Days after the first to occur of the consummation of the Acquisition Transaction or the entering into by a TEL Entity of the definitive agreement. (c) If this Agreement is terminated: (i) by TEL pursuant to Section 6.1(g); (ii) by Applied pursuant to Section 6.1(h); or (iii) by Applied or TEL pursuant to Section 6.1(d), and in the case of clause “(iii)” of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to an Applied Entity shall have been publicly disclosed or announced, and shall not have been withdrawn; and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to an Applied Entity is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to an Applied Entity is entered into by an Applied Entity, then Applied shall pay to TEL, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $400,000,000 (the “Applied Termination Fee”). The Applied Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence, within two Business Days after termination of this Agreement; (y) in the case of clause “(ii)” of the preceding sentence, simultaneously with the termination of this Agreement; and (z) in the case of clause “(iii)” of the preceding sentence, within two Business Days after the first to occur of the consummation of the Acquisition Transaction or the entering into by an Applied Entity of the definitive agreement. (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party Party fails to pay when due any amount payable by such Party under this Section ~~9.3~~6.3, then: (i) such ~~party~~ Party shall reimburse the ~~other party~~ Party to which such amount is payable for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement ~~by the other party~~ of its rights under this Section ~~9.3~~6.3; and (ii) ~~the first party~~ such Party shall pay to the ~~other party~~ Party to which such amount is payable 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~~ through the date such overdue amount is actually paid ~~to the other party~~ in full) at a rate per annum ~~500~~ equal to the lower of: (i) 350 basis points over the “prime rate” (as announced by ~~Bank of America~~Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii) the maximum rate permitted by applicable Legal Requirements.

Appears in 2 contracts

Samples: Business Combination Agreement, Business Combination Agreement (Applied Materials Inc /De)

Appears in 2 contracts

Samples: Merger Agreement (Shopping Com LTD), Merger Agreement (Ebay Inc)

Expenses; Termination Fees. (a) Except as otherwise set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated; provided, however, that: (i) Parent and the Company shall share equally all fees and expenses, other than attorney's fees, accounting fees, and financial advisory fees, incurred in connection with (A) filings, required of any party hereto or any of their Subsidiaries under any antitrust Law with respect to the transactions contemplated by this Agreement (B) SEC, "Blue Sky" or other similar filings relating to the Offer, the Merger or the transactions contemplated by this Agreement and (C) the printing, production, mailing or delivery of the Offer Documents, the Proxy Statement, any amendments or supplements thereto, and any other documents, statements, schedules or reports related thereto; (ii) if this Agreement is terminated by Parent pursuant to Section 8.1(d) or Section 8.1(e), or by the Company pursuant to Section 8.1(g), then the Company shall promptly pay, but in no event later than three Business Days after such termination to Parent by wire transfer of immediately available funds, in an amount equal to the aggregate amount of all reasonable fees and expenses (including all reasonable attorneys' fees, accountants' fees, financial advisory fees and all filing fees) that have been paid or that have been incurred by or on behalf of Parent in connection with the transactions contemplated by this Agreement, including, without limitation, the due diligence review of the Company by Parent, Acquisition Sub and their respective Representatives, and the preparation and negotiation of this Agreement, the Tender and Voting Agreement, the Offer Documents, the Proxy Statement, and all other agreements, documents and statements otherwise incurred in connection with the Merger, the Offer or any of the other transactions contemplated by this Agreement, but which amount in no event shall exceed $500,000; and (iii) if this Agreement is terminated by the Company pursuant to Section 8.1(f), then Parent shall promptly pay, but in no event later than three Business Days after such termination to the Company by wire transfer of immediately available funds, in an amount equal to the aggregate amount of all reasonable fees and expenses (including all reasonable attorneys' fees, accountants' fees, financial advisory fees and all filing fees) that have been paid or that have been incurred by or on behalf of the Company in connection with the transactions contemplated by this Agreement, including, without limitation, the preparation and negotiation of this Agreement and the Company Disclosure Letter, the Tender and Voting Agreement, the Offer Documents, the Proxy EXECUTION VERSION Statement, and all other agreements, documents and statements otherwise incurred in connection with the Merger, the Offer or any of the other transactions contemplated by this Agreement, but which amount in no event shall exceed $500,000. (b) If this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(b~~8.1(d) or Section 8.1(g), then the Company shall promptly, but in no event later than three Business Days after such termination, pay Parent an aggregate amount equal to Four Million Dollars (the "TERMINATION FEE") by wire transfer of immediately available funds. If this Agreement is terminated pursuant to Section 8.1(c) or Section 8.1(e), and (i) within 12 months of the date of termination the Company or any of its Subsidiaries enters into any definitive agreement with respect to, or the Company Board recommends that the Company Stockholders approve, adopt or accept, any Acquisition Proposal and (ii) such Acquisition Proposal is subsequently consummated, then the Company shall promptly, but in no event later than three Business Days after such consummation, pay to Parent an aggregate amount equal to the ~~Expense Payment; (i)~~ Termination Fee by wire transfer of immediately available funds; provided, however, ~~if the only if as of the End Date all of the conditions~~ no Termination Fee shall be owed to Parent pursuant to the ~~Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii~~second sentence of this Section 8.3(b) ~~provided, further, however,~~ if (ix) ~~as of the End Date all of the conditions to the Closing in ARTICLE 7 have~~ no Acquisition Proposal had been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or made prior to ~~the time of~~ the termination of this Agreement ~~an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made,~~ and (~~iii~~y) (A) ~~on or prior to 12 months after~~ the ~~date~~ percentage of ~~such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then~~ Assets of the Company ~~shall pay~~ (including the stock of its Subsidiaries) and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions, sold, leased, exchanged, mortgaged, pledged, transferred or otherwise disposed of pursuant to ~~Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier~~ all Acquisition Proposals is less than 25% of the ~~date~~ Assets of ~~consummation~~ the Company (including the stock of ~~such Acquisition Transaction~~ the Subsidiaries) and its Subsidiaries, taken as a whole or (B) the ~~date~~ percentage of ~~execution~~ capital stock of ~~such definitive agreement; provided~~the Company or its Subsidiaries purchased, ~~however~~sold, ~~that, solely for purposes~~ subject to any tender offer or exchange offer or otherwise disposed of ~~this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent~~ pursuant to ~~Section 9.1(e), or if this Agreement~~ all Acquisition Proposals is ~~terminated by Parent or~~ less than 25% of the outstanding shares of capital stock of the Company ~~pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash~~or its Subsidiaries. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hc) If either party fails to pay when finally determined to be due any amount payable under this Section ~~9.3~~8.3, ~~then: (i) such~~ then the defaulting party shall reimburse the ~~other~~ party entitled to payment for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other~~ such party of its rights under this Section ~~9.3;~~ 8.3. Subject to Section 8.2(c) in the case of a willful or intentional material breach, payment of the Termination Fee and ~~(ii)~~ expense reimbursement, if any, as the ~~first party~~ case may be, shall ~~pay~~ be the exclusive remedy for any termination of this Agreement in accordance with this Section 8, and there shall be no further liability to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any ~~successor thereto) in effect on the date~~ of its Representatives as a result of such ~~overdue amount was originally required to be paid~~termination.

Appears in 2 contracts

Samples: Merger Agreement (Superior Consultant Holdings Corp), Merger Agreement (Affiliated Computer Services Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; PROVIDED, HOWEVER, that Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Prospectus/Proxy Statement and any amendments or supplements thereto. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e8.1(d), or if this Agreement is terminated by Parent ~~or the Company~~ pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~8.1(e), ~~then~~ then: (i) the Company shall pay to Parent, in cash (at the time specified in Section 8.3(c)), a nonrefundable fee in the amount of $5,000,000; and (ii) in the event an Acquisition Transaction is consummated at any time on or prior to the first anniversary of the date on which this Agreement is terminated, the Company shall pay to Parent, in cash, contemporaneously with the consummation of such Acquisition Transaction, an additional nonrefundable fee in an amount equal to the Designated Amount (as defined in Section 8.3(d)). (c) In the case of termination of this Agreement by the Company pursuant to Section 8.1(d), the fee referred to in clause "(i)" of Section 8.3(b) shall be paid by the Company prior to such termination, and in the case of termination of this Agreement by Parent pursuant to Section 8.1(d) or Section 8.1(e), the ~~Fee~~ fee referred to in clause "(i)" of Section 8.3(b) shall be paid by the Company within three business days after such termination. (d) The "Designated Amount" shall be $10,000,000; PROVIDED, HOWEVER, that if (i) the Acquisition Transaction referred to in clause "(ii)" of Section 8.3(b) is required to be accounted for as a "pooling of interests," (ii) prior to the consummation of such Acquisition Transaction, the Company delivers to Parent reasonable written evidence of a determination by the SEC that relates specifically to such Acquisition Transaction and that states that the SEC will not permit such Acquisition Transaction to be accounted for as a "pooling of interests" in the event, and solely because, a fee in the amount of $10,000,000 is paid by the Company to Parent in accordance with clause "(ii)" of Section 8.3(b), (iii) Parent shall have been given a reasonable opportunity, both prior to and after such determination by the SEC, to persuade the appropriate official at the SEC to appropriately modify the SEC's position on the accounting treatment of such Acquisition Transaction (so that such Acquisition Transaction can be accounted for as a "pooling of interests" notwithstanding the payment by the Company of a fee in the amount of $10,000,000 in accordance with clause "(ii)" of Section 8.3(b)), (iv) the Company shall have promptly advised Parent of all material communications between the Company or any of its Representatives and the ~~Expense Payment~~ SEC regarding the accounting treatment of such Acquisition Transaction, (v) the Company shall have cooperated with Parent, both prior to and after such determination by the SEC, in ~~cash~~Parent's efforts to persuade the appropriate official at the SEC to appropriately modify the SEC's position on the accounting treatment of such Acquisition Transaction, (vi) the Company shall not have taken any action or position, either prior to or after such determination by the SEC, in opposition to or inconsistent with Parent's efforts to persuade the appropriate official at the SEC to appropriately modify the SEC's position on the accounting treatment of such Acquisition Transaction, and (vii) the position reflected in such determination by the SEC shall not have been reversed, withdrawn or otherwise appropriately altered, then the "Designated Amount" shall be the lesser of $10,000,000 or the maximum dollar amount that would not preclude such Acquisition Transaction from being accounted for as a "pooling of interests." (e) If this Agreement is validly terminated pursuant to Section 8.1(h), then Parent shall pay to the Company, in cash, a nonrefundable fee in the amount of $10,000,000. If this Agreement is validly terminated by Parent pursuant to Section ~~9.1(f~~8.1(h), then ~~the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any~~ such fee ~~required to be paid pursuant to this Section 9.3~~ shall be paid ~~and made~~ to the Company on the date Parent terminates this Agreement. If this Agreement is validly terminated by the Company pursuant to Section 8.1(h), then such fee shall be paid to the Company within ~~two~~ three business days after ~~such termination. (g) Each party acknowledges and agrees that~~ the ~~covenants and obligations contained in this Section 9.3 are an integral part of~~ date on which the ~~Transactions, and that, without these covenants and obligations, such party would not have entered into~~ Company terminates this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Cooper & Chyan Technology Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~11.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Transaction is consummated~~. (b) If~~ ; PROVIDED, HOWEVER, that if this Agreement is terminated by Parent or Seller pursuant to Section ~~9.1(b~~11.1(d) or by Parent pursuant to Section 11.1(f), then ~~the Company~~ Seller shall ~~pay~~ make a nonrefundable cash payment to Parent (in addition to any fee that may be payable pursuant to Section 11.3(b) or otherwise), at the ~~Expense Payment;~~time specified in the next sentence, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Transaction; and (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or ~~the Company~~ Seller pursuant to Section ~~9.1(b~~11.1(d) ~~or Section 9.1(d), (ii)~~ and at or prior to the time of ~~the~~ such termination ~~of this Agreement~~ an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, ~~and~~ or (~~iii~~ii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~11.1(e), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event~~then, ~~then the Company~~ in either such case, Seller shall pay to ~~Parent~~ Parent, in cash at the ~~Fee and~~ time specified in the ~~Expense Payment~~ next sentence (in ~~cash. (e) If~~ addition to any payment required to be made pursuant to Section 11.3(a)), a nonrefundable fee in the amount of $250,000. In the case of termination of this Agreement ~~is terminated~~ by Seller pursuant to Section 11.1(d), the fee referred to in the preceding sentence shall be paid by Seller prior to such termination, and in the case of termination of this Agreement by Parent pursuant to Section ~~9.1(f~~11.1(d) or Section 11.1(e), ~~then~~ the ~~Company shall pay~~ fee referred to ~~Parent~~ in the ~~Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3~~ preceding sentence shall be paid ~~and made~~ by Seller within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Docucon Incorporated), Asset Purchase Agreement (Tab Products Co)

Expenses; Termination Fees. (a) ~~Except as set forth~~ Each party hereto shall bear and pay all costs and expenses incurred by it in connection with the transactions contemplated by this ~~Section 9.2~~Agreement, ~~all~~ including fees and expenses ~~incurred~~ of its own financial consultants, investment bankers, accountants and counsel, provided that notwithstanding anything to the contrary contained in ~~connection with~~ this ~~Agreement and~~ Agreement, neither Keystone nor the ~~Transactions~~ Company shall be ~~paid by the party incurring such fees and expenses, whether~~ released from any liabilities or ~~not the Merger is consummated~~damages arising out of its willful breach of any provision of this Agreement. (b) ~~If this Agreement is terminated~~ In recognition of the efforts, expenses and other opportunities foregone by ~~Parent pursuant to Section 9.1(b)~~Keystone while structuring and pursuing the Merger, ~~then~~ the parties hereto agree that the Company shall pay to ~~Parent~~ Keystone a termination fee of $4.0 million (the ~~Expense Payment; (i~~"Termination Fee") ~~provided, however, if~~ in the ~~only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those~~ manner set forth ~~in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment;~~below if: (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by ~~Parent~~ Keystone pursuant to Section 7.1(f) or (g); (ii) this Agreement is terminated by (A) Keystone pursuant to Section 7.1(b), (B) by either Keystone or the Company pursuant to Section ~~9.1(b~~7.1(e), or (C) by either Keystone or the Company pursuant to Section ~~9.1(d~~7.1(d)(i) (other than by reason of any breach by Keystone or the Company, respectively), and in the case of any termination pursuant to clause (A), (iiB) at or ~~prior to the time of the termination of this Agreement~~ (C) an Acquisition Proposal shall have been ~~disclosed,~~ publicly announced or otherwise communicated or made known to the senior management of the Company or the Board of Directors of the Company (or any Person shall have publicly announced, ~~commenced~~communicated or made known an intention, ~~submitted~~ whether or ~~made~~not conditional, ~~and (iii~~to make an Acquisition Proposal) ~~on or prior to 12 months~~ at any time after the date of ~~such termination~~this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, ~~either an Acquisition Transaction~~ in the case of clause (C), or the date of termination of this Agreement, in the case of clause (A) or (B); or (iii) this Agreement is ~~consummated~~ terminated by the Company pursuant to Section 7.1(h). In the event the Termination Fee shall become payable pursuant to Section 8.1(b)(i) or ~~a definitive agreement relating to an Acquisition Transaction is entered into~~(ii), ~~then~~ (x) the Company shall pay to ~~Parent~~ Keystone an amount equal to $1.5 million on the ~~Expense Payment~~ first Business Day following termination of this Agreement, and (y) if within 24 months after such termination the Company or a ~~non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier~~ Subsidiary of the ~~date~~ Company enters into any agreement with respect to, or consummates, any Acquisition Transaction, the Company shall pay to Keystone the Termination Fee (net of ~~consummation of such Acquisition Transaction or~~ any payment made pursuant to clause (x) above) on the date of execution of such ~~definitive agreement; provided, however, that, solely for purposes~~ agreement or consummation of ~~this Section 9.3(b), all references to “15%” in~~ the ~~definition of “~~Acquisition Transaction” . In the event the Termination Fee shall ~~be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent~~ become payable pursuant to Section ~~9.1(e~~8.1(b)(iii), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then~~ the Company shall pay to ~~Parent~~ Keystone the entire Termination Fee ~~and~~ within two Business Days following the ~~Expense Payment in cash. (e) If~~ date of termination of this ~~Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid~~ Agreement. Any amount that becomes payable pursuant to this Section ~~9.3~~ 8.1(b) shall be paid ~~and made within two business days after such termination~~by wire transfer of immediately available funds to an account designated by Keystone. (gc) ~~Each party acknowledges~~ The Company and ~~agrees~~ Keystone agree that the ~~covenants and obligations~~ agreements contained in paragraphs (b) and (d) of this Section ~~9.3~~ 8.1 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, ~~and that,~~ that without ~~these covenants and obligations,~~ such ~~party~~ agreement either Party would not have entered into this ~~Agreement. (h)~~ Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by either Party. If either ~~party~~ Party fails to pay ~~when due any amount payable under this Section 9.3, then: (i) such party shall reimburse~~ the other ~~party for all~~ Party hereto the amounts due thereto under paragraphs (b) and (d) above, as the case may be, within the time periods specified therein, such Party shall pay the costs and expenses (including reasonable legal fees and ~~disbursements of counsel~~expenses) incurred by the other Party in connection with any action in which the other Party prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. (d) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c), 7.1(d)(ii) or 7.1(i), then Keystone shall pay to the Company, within five business days of such termination, a termination fee of $1.0 million plus the documented out-of pocket expenses incurred by the Company in connection with the ~~collection~~ transactions contemplated by this Agreement not to exceed $1.0 million in the aggregate; provided, however, that Keystone shall not be required to pay the termination fee or to reimburse the Company for such expenses if at the time of such ~~overdue amount and~~ termination the ~~enforcement by~~ Company had materially breached its representations, warranties or covenants or if the ~~other party~~ failure to obtain such approvals, waivers or authorizations of ~~its rights under this Section 9.3; and (ii) the first party shall pay~~ any Governmental Entity resulted as a consequence of facts or circumstances relating to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. Company or ~~any successor thereto) in effect on the date such overdue amount was originally required to be paid~~its Subsidiaries.

Appears in 2 contracts

Samples: Merger Agreement (First Colonial Group Inc), Merger Agreement (KNBT Bancorp Inc)

Appears in 2 contracts

Samples: Merger Agreement (Opnext Inc), Merger Agreement (Oclaro, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, ~~all fees~~ Section 1.6(e), Section 5.4(b), and ~~expenses incurred in connection with this Agreement and~~ Section 5.10, the ~~Transactions~~ Transaction Expenses shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided that Parent and the Company shall each pay one-half of the fees and expenses incurred in relation to the printing and filing with the SEC of the Proxy Statement and any amendments and supplements thereto and paid to a financial printer or the SEC; provided further that, if the Merger is consummated and there are Transaction Expenses payable by Parent but unpaid as of the Closing and such Transaction Expenses were deducted from Parent Net Cash, the Company shall pay such Transaction Expenses at or immediately after the Closing. (b) If If: (i) (A) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(e) or Section 9.1(h), (B) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement (which shall not have been withdrawn), and (C) within twelve (12) months after the date of such termination, Parent consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (B); (ii) this Agreement is terminated by the Company pursuant to Section 9.1(f) (or, at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 9.1(f)); or (iii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~9.1(j); then in the case of a termination pursuant to Section 9.3(b)(i) or Section 9.3(b)(ii), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company an amount equal to $~~400,000~~1,000,000, and in the case of a termination pursuant to Section 9.3(b)(iii), Parent shall pay to the Company an amount equal to $1,500,000 (the “Company Termination Fee”) within three (3) Business Days of consummation of such Subsequent Transaction or termination of this Agreement, as applicable. (c) If If: (i) (A) this Agreement is terminated ~~by Parent or the Company~~ pursuant to Section 9.1(b) ), Section 9.1(e), or Section ~~9.1(d~~9.1(i), (iiB) at an Acquisition Proposal with respect to the Company shall have been publicly announced or disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement but prior to ~~the time of~~ the termination of this Agreement ~~an Acquisition Proposal~~ (which shall not have been ~~disclosed, announced, commenced, submitted or made~~withdrawn), and (~~iii~~C) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an~~ the Company consummates a Subsequent Transaction in respect of the Acquisition ~~Transaction~~ Proposal referred to in clause (B); or (ii) this Agreement is ~~consummated or a definitive agreement relating~~ terminated by Parent pursuant to ~~an Acquisition Transaction~~ Section 9.1(g) (or, at the time this Agreement is ~~entered into~~terminated, the Parent had the right to terminate this Agreement pursuant to Section 9.1(g)); then the Company shall pay to Parent ~~the Expense Payment and a non-refundable fee in the~~ an amount of equal to $~~600,000~~ 1,000,000 (the “Parent Termination Fee”) ~~in cash on or prior to the earlier of the date~~ within three (3) Business Days of consummation of such ~~Acquisition~~ Subsequent Transaction or ~~the date of execution of such definitive agreement; provided, however, that, solely for purposes~~ termination of this ~~Section 9.3(b)~~Agreement, ~~all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~as applicable.” (d) If this Agreement is terminated by (i) either Parent or the Company pursuant to Section 9.1(e), ~~or if~~ then Parent shall reimburse the Company for all reasonable out of pocket fees and expenses incurred by the Company in connection with this Agreement ~~is terminated~~ and the Contemplated Transactions, up to a maximum of $1,000,000, or (ii) by Parent or pursuant to Section 9.1(j), then Parent shall reimburse the Company for all reasonable out of pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions, up to a maximum of $250,000, in each case, by wire transfer of same day funds within three (3) Business Days following the date on which the Company submits to Parent true and correct copies of reasonable documentation supporting such expenses. If the Company also becomes entitled to receive a Company Termination Fee under this Agreement, the amount paid by Xxxxxx as expense reimbursement under this Section 9.3(d)(i) will be credited against the Company Termination Fee, and under no circumstances shall Parent be obligated to pay a Company Termination Fee and expense reimbursement pursuant to ~~any other provision of~~ this Section ~~9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash~~9.3(d)(i). (e) ~~If this Agreement is terminated by~~ Any Company Termination Fee or Parent ~~pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to~~ Termination Fee due under this Section 9.3 shall be paid ~~and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part~~ by wire transfer of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h)~~ same day funds. If ~~either party~~ a Party fails to pay when due any amount payable by it under this Section 9.3, ~~then:~~ then such Party shall (i) ~~such party shall~~ reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ such Party of its rights under this Section ~~9.3;~~ 9.3 and (ii) ~~the first party shall~~ pay to the other ~~party~~ Party 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 the ~~other party~~ Company in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America, N.A.~~ published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (f) The Parties agree that, (i) subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the Company Termination Fee on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(f) shall limit the rights of Parent and Merger Sub under Section 10.11 or with respect to any willful and intentional material breach of this Agreement. (g) The Parties agree that, (i) subject to Section 9.2, payment of the Parent Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement, it being understood that in no event shall the Company be required to pay the Parent Termination Fee on more than one occasion and (ii) following payment of the Parent Termination Fee (x) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(g) shall limit the rights of the Company under Section 10.11 or with respect to any willful and intentional material breach of this Agreement. (h) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the applicable Party in the circumstances in which such amount is payable.

Appears in 2 contracts

Samples: Merger Agreement (CalciMedica, Inc. /DE/), Agreement and Plan of Merger (Graybug Vision, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.03, all fees and expenses incurred in connection with this Merger Agreement and the ~~Transactions~~ transactions contemplated by this Merger Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; PROVIDED, HOWEVER, that: (i) Veeco and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (A) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement and any amendments or supplements thereto and (B) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation; (ii) if this Merger Agreement is terminated by Veeco pursuant to Section 9.01(g), then the Company shall make a nonrefundable cash payment to Veeco, at the time specified in the next sentence, in an amount equal to the aggregate amount of all fees and reasonable, documented, out-of-pocket expenses (including with respect to fees, all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Veeco in connection with the preparation and negotiation of this Merger Agreement and otherwise in connection with the Merger; and (iii) if this Merger Agreement is terminated by the Company pursuant to Section 9.01(h), then Veeco shall make a nonrefundable cash payment to the Company, at the time specified in the last sentence of this Section 9.03(a), in an amount equal to the aggregate amount of all fees and reasonable, documented, out-of-pocket expenses (including with respect to fees, all attorneys' fees, accountants fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of the Company in connection with the preparation and negotiation of this Merger Agreement and otherwise in connection with the Merger. In the case of termination of this Merger Agreement by Veeco pursuant to Section 9.01(g), the nonrefundable payment referred to in clause "(ii)" of the proviso to the first sentence of this Section 9.03(a) shall be made by the Company within two business days after such termination. In the case of termination of this Merger Agreement by the Company pursuant to Section 9.01(h), the nonrefundable payment referred to in clause "(iii)" of the proviso to the first sentence of this Section 9.03(a) shall be paid by Veeco within two business days afer such termination. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Merger Agreement is terminated (A) by ~~Parent~~ Veeco or the Company pursuant to Section ~~9.1(b~~9.01(d) or (B) by Veeco pursuant to Section ~~9.1(d), (ii~~9.01(g) and at or prior to the time of ~~the~~ such termination ~~of this Agreement an~~ a Company Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, ~~and~~ or (~~iii~~C) ~~on or prior~~ by Veeco pursuant to ~~12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into,~~ Section 9.01(f) then the Company shall pay to ~~Parent the Expense Payment and~~ Veeco (in lieu of any payment required to be made pursuant to Section 9.03(a)), a ~~non-refundable~~ nonrefundable fee in the amount of $~~600,000~~ 14,600,000 (the ~~“Fee”) in cash on or prior to~~ "TERMINATION FEE"). In the ~~earlier~~ case of ~~the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes~~ termination of this ~~Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this~~ Merger Agreement ~~is terminated~~ by ~~Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after~~ 9.01(d), the ~~occurrence of a Triggering Event, then~~ Termination Fee referred to in the preceding sentence shall be paid by the Company ~~shall pay~~ prior to ~~Parent~~ such termination, and in the ~~Fee and the Expense Payment in cash. (e) If~~ case of termination of this Merger Agreement ~~is terminated~~ by ~~Parent~~ Veeco pursuant to Section ~~9.1(f~~9.01(d), ~~then~~ Section 9.01(f) or Section 9.01(g), the ~~Company shall pay~~ Termination Fee referred to ~~Parent~~ in the ~~Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3~~ preceding sentence shall be paid ~~and made~~ by the Company within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hc) If ~~either party fails~~ this Merger Agreement is terminated by Veeco or the Company pursuant to ~~pay when due any amount payable under this~~ Section ~~9.3~~9.01(e), then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party then Veeco shall pay to the ~~other party interest on such overdue amount~~ Company (~~for the period commencing as~~ in lieu of ~~the date such overdue amount was originally~~ any payment required to be ~~paid~~ made pursuant to Section 9.03(a)), a nonrefundable fee in the amount of $4,000,000; provided, however, that if this Merger Agreement is terminated by Veeco or the Company pursuant to Section 9.01(e), and ~~ending on the date such overdue amount is actually paid~~ at or prior to the ~~other party~~ time of such termination, a Veeco Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, then Veeco shall pay to the Company (in ~~full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank~~ lieu of ~~America, N.A. or~~ any ~~successor thereto) in effect on the date such overdue amount was originally~~ payment required to be ~~paid~~made pursuant to Section 9.03(a) and in lieu of the $4,000,000 payment referred to earlier in this sentence) the Termination Fee. If this Merger Agreement is terminated by (A) Veeco pursuant to Section 9.01(k), or (B) by the Company pursuant to Section 9.01(j), then Veeco will pay to the Company (in lieu of any payment required to be made pursuant to Section 9.03(a)), the Termination Fee. In the case of termination of this Merger Agreement by Veeco pursuant to Section 9.01(e), the $4,000,000 fee referred to in this Section 9.03(c) or the Termination Fee (as applicable) shall be paid by Veeco prior to such termination, and in the case of termination of this Merger Agreement by the Company pursuant to Section 9.01(e), such $4,000,000 fee or the Termination Fee (as applicable) shall be paid by Veeco within two business days after such termination. In the case of termination of this Merger Agreement by Veeco pursuant to Section 9.01(k), the Termination Fee shall be paid by Veeco prior to such termination. In the case of termination of this Merger Agreement pursuant to Section 9.01(j), the Termination Fee shall be paid by Veeco within two business days after such termination.

Appears in 2 contracts

Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated; provided, however, that Nikola shall pay all fees and expenses, other than attorneys’ and accountants’ fees and expenses, incurred in relation to the Filings by the Parties under any Filing requirement under the HSR Act and any foreign antitrust Legal Requirement applicable to this Agreement and the Contemplated Transactions; provided, further, that Nikola and Romeo shall also share equally all fees and expenses incurred by engagement of the Exchange Agent and in relation to preparation and filing with the SEC of the Offer Documents, Schedule 14d-9 and S-4 (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto) as well as the printing (e.g., paid to a financial printer) of the S-4 and the printing or mailing of the Offer Documents and Schedule 14d-9. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by ~~Parent~~ Nikola or ~~the Company~~ Romeo pursuant to Section ~~9.1(b~~8.1(d) or by Nikola pursuant to Section ~~9.1(d~~8.1(e), in each case at any time before the Acceptance Time an Acquisition Proposal with respect to Romeo shall have been announced, disclosed or otherwise communicated to Romeo’s Board of Directors and has not been publicly withdrawn at least five (5) Business Days prior to the Acceptance Time and (ii) ~~at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and~~ within twelve (~~iii~~12) ~~on or prior to 12~~ months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Romeo enters into a definitive agreement ~~relating~~ with respect to ~~an Acquisition~~ a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then ~~the Company~~ Romeo shall pay to ~~Parent the Expense Payment and~~ Nikola, within three (3) Business Days after termination (or, if applicable, upon such entry into a ~~non-refundable~~ Subsequent Transaction), a nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 3,500,000, less any amounts reimbursed pursuant to Section 8.3(c) (the “Termination Fee”), in addition to any amount payable to Nikola pursuant to Section 8.3(d) ~~in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely~~ (provided that for purposes of this Section ~~9.3(b~~8.3(b), ~~all~~ the references to “1530%” in the definition of “Acquisition ~~Transaction”~~ Proposal shall be deemed to ~~refer instead~~ be references to “50%”).” (c) If this Agreement is terminated: (i) by Nikola pursuant to Sections 8.1(e) or 8.1(g), then Romeo shall reimburse Nikola for all third party expenses incurred by Nikola, up to a maximum of $3,000,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Nikola submits to Romeo true and correct copies of reasonable documentation supporting such third party expenses; (ii) by Romeo or Nikola pursuant to Section 8.1(d), then Romeo shall reimburse Nikola for all third party expenses incurred by Nikola, up to a maximum of $1,750,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Nikola submits to Romeo true and correct copies of reasonable documentation supporting such third party expenses; or (iii) by Romeo pursuant to Section 8.1(f), then Nikola shall reimburse Romeo for all third party expenses incurred by Romeo, up to a maximum of $3,000,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Romeo submits to Nikola true and correct copies of reasonable documentation supporting such third party expenses. (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to timely pay when due any amount payable by such Party under ~~this~~ Section ~~9.3~~8, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 8.3, and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that the payment of the fees and expenses set forth in this Section 8.3, subject to Section 8.2, shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 8.3, it being understood that in no event shall either Nikola or Romeo be required to pay fees or damages payable pursuant to this Section 8.3 on more than one occasion. Subject to Section 8.2, the payment of the fees and expenses set forth in this Section 8.3, and the provisions of Section 9.11, each of the Parties and their respective Affiliates shall have no liability, shall not be entitled to bring or maintain any other claim, action or proceeding against the other, shall be precluded from any other remedy against the other, at law or in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, affiliate, agent or other representative of such Party) in connection with or arising out of the termination of this Agreement, any breach by any Party giving rise to such termination or the failure of the Merger and the other Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 8.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable. For the avoidance of doubt, while Nikola or Purchaser may pursue both a grant of specific performance of the type contemplated by Section 9.11 and the payment of the Termination Fee pursuant to Section 8.3(b), as the case may be, under no circumstances shall Nikola or Purchaser be permitted or entitled to receive both a grant of specific performance of the type contemplated by Section 9.11 and monetary damages, including all or any portion of the Termination Fee.

Appears in 2 contracts

Samples: Merger Agreement (Nikola Corp), Merger Agreement (Romeo Power, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Offer and Merger is are consummated. (b) If In the event that: (i) this Agreement is terminated by the Company pursuant to Section 8.1(e), the Company shall pay to Parent or its designee the Termination Fee by wire transfer of same day funds prior to or simultaneously with (and as a condition to the effectiveness of) such termination; (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~8.1(d), ~~then~~ the Company shall pay to Parent or its designee the ~~Expense Payment~~Termination Fee by wire transfer of same day funds within one (1) business day after such termination; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000.~~ (~~c) If (i~~x) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso to Section 8.1(b)) or by Parent pursuant to Section ~~9.1(d~~8.1(f), (iiy) at any Person shall have publicly disclosed a bona fide Acquisition Proposal, or such Acquisition Proposal has otherwise been communicated to the Board of Directors or the Company’s stockholders and shall have become publicly known, after the date hereof and prior to ~~the time of the~~ such termination ~~of this Agreement an~~ and such Acquisition Proposal has not been publicly and unconditionally withdrawn prior to such termination, and (z) within twelve (12) months of such termination the Board of Directors shall have approved or recommended any Acquisition Proposal (regardless of when made), and the Company shall have entered into a definitive agreement with respect to such Acquisition Proposal which shall have been ~~disclosed, announced, commenced, submitted or made, and~~ consummated (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely provided that for purposes of this ~~Section 9.3(b), all~~ clause (z) the references to “15%” in the definition of “Acquisition ~~Transaction~~Proposal” shall be deemed to ~~refer instead~~ be references to “50%.”), then the Company shall pay to Parent or its designee the Termination Fee by wire transfer of same day funds prior to the consummation of such Acquisition Proposal; or (div) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~8.1(h), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then~~ the Company shall pay to Parent or its designee the Termination Fee ~~and the Expense Payment in cash.~~by wire transfer of same day funds within one (1) business day after such termination; (ec) ~~If this Agreement~~ It is ~~terminated by Parent pursuant to Section 9.1(f), then~~ understood that in no event shall the Company ~~shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee~~ be required to ~~be paid~~ pay the Termination Fee on more than one occasion. As used herein, “Termination Fee” shall mean a cash amount equal to $19,337,500. Payment of the Termination Fee pursuant to this Section ~~9.3~~ 8.3 shall be ~~paid~~ deemed to be liquidated damages for any and ~~made within two business days after~~ all losses or damages suffered or incurred by Parent, Purchaser, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Purchaser or any of their respective Affiliates shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, any of the Transactions or any matters forming the basis for such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)

Appears in 2 contracts

Samples: Merger Agreement (Kintara Therapeutics, Inc.), Merger Agreement (Kintara Therapeutics, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the ~~Merger is~~ Mergers are consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with (i) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto; and (ii) the filing fees required to be paid in connection with the filing by the Parties hereto of any notice or other document under any applicable Antitrust Law. (b) If this Agreement is ~~terminated~~ terminated: (i) by Parent pursuant to Section ~~9.1(b~~7.1(f), ~~then~~ or by Parent or the Company ~~shall pay~~ pursuant to ~~Parent~~ any other provision of Section 7.1 (other than Section 7.1(a), 7.1(e), 7.1(g) or 7.1(i)) at any time after the ~~Expense Payment; (i) provided, however, if the only if as~~ occurrence of ~~the End Date all of the conditions~~ a Company Triggering Event and prior to the ~~Closing in ARTICLE 7 have been satisfied~~ adoption of this Agreement by the Required Company Stockholder Vote; or ~~waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment;~~ (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~7.1(b) or Section ~~9.1(d~~7.1(d), and in the case of clause “(ii)” of this sentence: (A) following the date hereof but at or prior to the time of the termination of this Agreement (in the case of Section 7.1(b)) or prior to the Company Stockholders Meeting (in the case of Section 7.1(d)) an Acquisition Proposal with respect to the Company shall have been disclosed, announced, ~~commenced~~submitted (in the case of Section 7.1(d), ~~submitted~~ publicly) or ~~made~~made (in the case of Section 7.1(d), publicly) and shall not have been withdrawn; and (~~iii~~B) on or prior to ~~12 months after~~ the ~~date~~ first anniversary of such ~~termination~~termination of this Agreement, ~~either~~ either: (1) an Acquisition Transaction with respect to the Company is ~~consummated~~ consummated; or (2) a definitive agreement relating to an Acquisition Transaction ~~is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000~~ (~~the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however,~~ it being understood that, ~~solely~~ for purposes of this ~~Section 9.3(b~~clause “(B)~~, all references~~ ,” each reference to “15%” in the definition of “Acquisition Transaction” in Exhibit A shall be deemed to ~~refer instead~~ be a reference to “5040%”) with respect to the Company is entered into by a Company Entity, then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $13,000,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence, within two Business Days after the termination of this Agreement; and (y) in the case of clause “(ii)” of the preceding sentence, within two Business Days after the first to occur of the consummation of the Acquisition Transaction or the entering into by a Company Entity of the definitive agreement.” (dc) If this Agreement is ~~terminated~~ terminated: (i) by ~~Parent~~ the Company pursuant to Section ~~9.1(e),~~ 7.1(g) or ~~if this Agreement is terminated~~ by Parent or the Company pursuant to any other provision of Section ~~9.1~~ 7.1 (other than Section 7.1(a), 7.1(d), 7.1(f) or 7.1(h)) at any time after the occurrence of a Parent Triggering ~~Event~~Event and prior to the approval of the Parent Share Issuance by the Required Parent Stockholder Vote; or (ii) by Parent or the Company pursuant to Section 7.1(b) or Section 7.1(e), and in the case of clause “(ii)” of this sentence: (A) following the date hereof but at or prior to the time of the termination of this Agreement (in the case of Section 7.1(b)) or prior to the Parent Stockholders Meeting (in the case of Section 7.1(e)) an Acquisition Proposal with respect to Parent shall have been disclosed, announced, submitted (in the case of Section 7.1(e), publicly) or made (in the case of Section 7.1(e), publicly) and shall not have been withdrawn; and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to Parent is consummated; or (2) a definitive agreement relating to an Acquisition Transaction (it being understood that, for purposes of this clause “(B),” each reference to “15%” in the definition of “Acquisition Transaction” in Exhibit A shall be deemed to be a reference to “40%”) with respect to Parent is entered into by a Parent Entity, then ~~the Company~~ Parent shall pay to the Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $35,000,000 (the “Parent Termination Fee”). The Parent Termination Fee shall be paid as follows: (x) in the ~~Fee~~ case of clause “(i)” of the preceding sentence, within two Business Days after the termination of this Agreement; and (y) in the ~~Expense Payment in cash~~case of clause “(ii)” of the preceding sentence, within two Business Days after the first to occur of the consummation of the Acquisition Transaction or the entering into by a Parent Entity of the definitive agreement. (ed) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party a Party fails to pay when due any amount payable by such Party under this Section ~~9.3~~7.3, then: (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for all reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3~~7.3; and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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~~ through the date such overdue amount is actually paid to the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the lower of: (A) the “prime rate” (as announced by ~~Bank of America~~Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (B) the maximum rate permitted by applicable Legal Requirements. (e) The Parties acknowledge and agree that in no event shall Parent or the Company be required to pay the Parent Termination Fee or the Company Termination Fee, respectively, on more than one occasion, whether or not such termination fee may be payable under more than one provision of this Agreement at the same or at different times and upon the occurrence of different events. Nothing in this Section 7.3(e) shall limit the obligations of Parent or the Company, as the case may be, to pay any amounts required to be paid by such Party under Section 7.3(a) in addition to any nonrefundable fee required to be paid by such Party.

Appears in 2 contracts

Samples: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that (i) Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (A) the filing, printing and mailing of the Form S-4 Registration Statement and the Prospectus/Proxy Statement and any amendments or supplements thereto and (B) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation; and (ii) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) or by Parent pursuant to Section 8.1(e) or if Section 4.3(a)(B) or Section 5.2(c) so requires, then the Company shall make a nonrefundable cash payment to Parent (in addition to any fee that may be payable pursuant to Section 8.3(b) or 8.3(c)), at the time specified in the next sentence or in Section 4.3(a)(B) or Section 5.2(c) as applicable, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the Stock Option Agreement and otherwise in connection with the Merger in an aggregate amount not to exceed $2,000,000. In the case of termination of this Agreement by the Company pursuant to Section 8.1(d), the nonrefundable payment referred to in clause "(ii)" of the proviso to the first sentence of this Section 8.3(a) shall be made by the Company prior to such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(d) or 8.1(e), the nonrefundable payment referred to clause "(ii)" of the proviso to the first sentence of this Section 8.3(a) shall be made by the Company within two business days after such termination. (b) If this Agreement is terminated by Parent pursuant to Section ~~9.1(b)~~8.1(e) or if Section 4.3(a)(B) or Section 5.2(c) so requires, then the Company shall pay to ~~Parent~~ Parent, within two business days after such termination or at the ~~Expense Payment; (i~~time specified in Section 4.3(a)(B) ~~provided~~or Section 5.2(c) as applicable, ~~however, if~~ a nonrefundable cash fee in the ~~only if as~~ amount of ~~the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be~~ $30,000,000. Any fee required to ~~pay~~ be paid pursuant to ~~Parent the Expense Payment; (ii~~this Section 8.3(b) ~~provided, further, however, if (i) as of the End Date all of the conditions~~ shall be in addition to ~~the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of~~ any payment required to be made pursuant to Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed8.3(a), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If ~~(i)~~ this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(d) ~~or Section 9.1(d), (ii)~~ and at ~~or prior to~~ the time of the ~~termination of this Agreement~~ Company Stockholders' Meeting an Acquisition Proposal ~~shall have been~~ disclosed, announced, commenced, submitted or ~~made, and~~ made prior thereto shall remain outstanding (~~iii) on or prior to 12 months after the date of~~ each such ~~termination, either an~~ Acquisition ~~Transaction is consummated or~~ Proposal a ~~definitive agreement relating to an Acquisition Transaction is entered into~~"Competing Proposal"), then the Company shall pay to ~~Parent~~ Parent, at the ~~Expense Payment and~~ time specified in the next sentence, a ~~non-refundable~~ nonrefundable cash fee in the amount of $~~600,000 (~~10,000,000. In the ~~“Fee”)~~ case of termination of this Agreement by the Company pursuant to Section 8.1(d), the fee referred to in ~~cash on or~~ the preceding sentence shall be paid by the Company prior to such termination, and in the case of termination of this Agreement by Parent pursuant to Section 8.1(d), the fee referred to in the preceding sentence shall be paid by the Company within two business days after such termination. Any fee required to be paid pursuant to this Section 8.3(c) shall be in addition to any payment required to be made pursuant to Section 8.3(a). Immediately upon the earlier of entering into a definitive agreement with respect to or consummation of, at any time within six months after the ~~date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes~~ termination of this ~~Section 9.3(b)~~Agreement, ~~all references~~ any transaction contemplated by any Competing Proposal, the Company shall pay to ~~“15%”~~ Parent an additional nonrefundable cash fee in the ~~definition~~ amount of ~~“Acquisition Transaction”~~ $20,000,000. Any fee required to be paid pursuant to this Section 8.3(c) shall be ~~deemed~~ in addition to ~~refer instead~~ any payment required to ~~“50%~~be made pursuant to Section 8.3(a).” (d) If this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(e), or if this Agreement is terminated~~ 8.1(g) because of a breach by Parent of any representation, warranty or ~~the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event~~covenant, ~~then the Company~~ Parent shall pay to the Company, within two business days after such termination, a cash fee in the amount of $30,000,000 as liquidated damages and as the sole and exclusive remedy to the Company as a result of such breach. Parent ~~the Fee~~ and the ~~Expense Payment~~ Company agree that it would be extremely difficult or impracticable to determine the Company's actual damages in ~~cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ the ~~Company shall pay to Parent~~ event of such breach and that the ~~Expense Payment. (f) Unless otherwise provided in this Section 9.3, any~~ cash fee required to be paid pursuant to this Section ~~9.3 shall be paid and made within two business days after such termination. (g~~8.3(d) ~~Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part~~ is a reasonable estimate of the ~~Transactions,~~ Company's damages and ~~that, without these covenants and obligations, such party would~~ not ~~have entered into this Agreement~~a penalty. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Broadvision Inc), Merger Agreement (Interleaf Inc /Ma/)

Expenses; Termination Fees. (a) Except as otherwise set forth in this ~~Section 9.2~~Agreement, all ~~fees~~ costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such ~~fees and expenses~~cost or expense, except that Parent shall pay, whether or not the ~~Merger~~ Mergers or any other Transaction is consummated, all costs and expenses incurred in connection with (i) printing, filing and mailing the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Joint Proxy Statement, (ii) any filing with antitrust authorities and (iii) the Exchange Agent. (b) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(b), then~~ In the ~~Company shall pay to Parent the Expense Payment;~~event that: (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated ~~by Parent or the Company~~ pursuant to Section ~~9.1(b~~7.1(g); (ii) this Agreement is terminated pursuant to Section 7.1(h); or (iii) this Agreement is terminated pursuant to Section 7.1(b), Section 7.1(d) or Section ~~9.1(d),~~ 7.1(e) and (iiA) ~~at or prior to the time of the termination of this Agreement~~ an Acquisition Proposal shall have been ~~disclosed~~received by the Company or its Representatives or any Person shall have publicly proposed or publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and, ~~announced~~in the case of a termination pursuant to Section 7.1(d), ~~commenced, submitted~~ such Acquisition Proposal or ~~made,~~ publicly proposed or announced intention shall have been made prior to the Company Shareholders Meeting) and (~~iii~~B) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ the Company enters into a definitive agreement ~~relating to an~~ in respect of, or consummates, any Acquisition ~~Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000~~ Proposal (~~the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely~~ provided that for purposes of this ~~Section 9.3(b~~subsection (iii), ~~all references~~ each reference to “~~15%~~20% or more” in the definition of “Acquisition ~~Transaction”~~ Proposal shall be deemed to ~~refer instead~~ be references to “more than 50%”); then the Company shall, as directed by Parent, pay the Company Termination Fee by wire transfer of same-day funds to an account designated by Parent (1) in the case of Section 7.3(b)(i), within two (2) Business Days after such termination, (2) in the case of Section 7.3(b)(ii), prior to or concurrently with the termination of this Agreement pursuant to Section 7.1(h), and (3) in the case of Section 7.3(b)(iii), within two (2) Business Days after the earlier of entry into a definitive agreement in respect of the Acquisition Proposal referred to in clause (B) of Section 7.3(b)(iii), or the consummation of such Acquisition Proposal.” (dc) If In the event that this Agreement is terminated ~~by Parent~~ pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f7.1(i), then Parent shall pay the Company ~~shall pay to~~ the Parent ~~the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made~~ Termination Fee by wire transfer of same-day funds within two ~~business days~~ (2) Business Days after such termination. (gd) ~~Each party acknowledges~~ For the avoidance of doubt, any payment made by the Company under Section 7.3(b) or by Parent under Section 7.3(c) shall be payable only once with respect to Section 7.3(b) or Section 7.3(c), as applicable, and ~~agrees~~ not in duplication, even though such payment may be payable under one or more provisions hereof. In the event that ~~the covenants and obligations contained in this Section 9.3 are an integral part~~ Parent shall receive full payment of the ~~Transactions~~Company Termination Fee pursuant to Section 7.3(b) or the Company shall receive full payment of the Parent Termination Fee pursuant to Section 7.3(c), the receipt of the Company Termination Fee, on the one hand, or the Parent Termination Fee, on the other hand, as applicable, shall be deemed to be liquidated damages (and ~~that, without these covenants and obligations,~~ not a penalty) in a reasonable amount to compensate such party ~~would not~~ for any and all losses or damages suffered or incurred by the Parent Parties or any of their respective Affiliates or by the Company Parties or any of their respective Affiliates, as applicable, or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination; the Company Parties or the Parent Parties, as applicable, shall have ~~entered into~~ no further Liability, whether pursuant to a claim at Law or in equity, to the Parent Parties or the Company Parties, as applicable, or any of their respective Affiliates in connection with this ~~Agreement.~~ Agreement (hand the termination hereof), the Transactions (and the abandonment thereof) ~~If either party~~ or any matter forming the basis for such termination; and none of the Parent Parties or any of their respective Affiliates or the Company Parties or any of their respective Affiliates, as applicable, or any other Person shall be entitled to bring or maintain any Legal Proceeding against the Acquired Companies or their Affiliates or the Parent Companies or their Affiliates, as applicable, for damages or any equitable relief arising out of or in connection with this Agreement (other than equitable relief to require payment of the Company Termination Fee or the Parent Termination Fee, as applicable), any of the Transactions or any matters forming the basis for such termination; provided that if the Company fails to pay ~~when due~~ the Company Termination Fee pursuant to Section 7.3(b) or the Parent fails to pay the Parent Termination Fee pursuant to Section 7.3(c) and the Parent Parties or the Company Parties, as applicable, commence and prevail in a suit which results in a final, non-appealable judgment against the Company for the Company Termination Fee or any ~~amount payable under this Section 9.3~~portion thereof or for the Parent Termination Fee or any portion thereof, ~~then: (i) such party~~ as applicable, then the Company or Parent, as applicable, shall ~~reimburse~~ pay the ~~other party for all~~ Parent Parties or the Company Parties, as applicable, their costs and expenses (including reasonable attorney’s fees and ~~disbursements of counsel~~disbursements) ~~incurred~~ in connection with ~~the collection of~~ such ~~overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party~~ suit, together with interest on ~~such overdue amount (for~~ the ~~period commencing~~ Company Termination Fee or the Parent Termination Fee, 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 the other party in full)~~ applicable, at ~~a rate per annum 500 basis points over~~ the “prime rate” (as ~~announced by Bank of America~~published in The Wall Street Journal, ~~N.A. or any successor thereto)~~ Eastern Edition, in effect on the date such ~~overdue amount~~ payment was ~~originally~~ required to be ~~paid~~made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding).

Appears in 2 contracts

Samples: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all ~~fees and~~ expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not any shares are purchased pursuant to the Offer and whether or not the Merger is consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(c), and (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been publicly disclosed, ~~announced, commenced, submitted~~ announced or ~~made~~commenced (and not withdrawn at least five (5) business days prior to the time of termination), and (iii) ~~on or prior to 12 months~~ within one (1) year after the date of ~~such termination~~termination of this Agreement, ~~either~~ (A) an Acquisition Transaction is consummated or (B) a definitive agreement ~~relating to~~ contemplating an Acquisition Transaction is ~~entered into~~executed and such Acquisition Transaction is ultimately consummated, then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment and~~ time such Acquisition Transaction (as it may have been modified, including any other Acquisition Transaction among or involving the parties to such definitive agreement or any of such parties’ affiliates) is consummated, a ~~non-refundable~~ nonrefundable fee in the amount of $~~600,000~~ 8,517,000 (the “Termination Fee”~~) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~); provided, however, ~~that, solely~~ that for purposes of ~~this Section 9.3(b~~clause “(iii)” above, all references to “15%” in the definition of “Acquisition ~~Transaction”~~ Transaction shall be deemed to refer ~~instead~~ to “50%”.” (dc) If this Agreement is terminated (i) by Parent at any time pursuant to Section 8.1(d) based upon the occurrence of a “Triggering Event”, or (ii) by the Company pursuant to Section 8.1(e), then the Company shall pay to Parent, in cash at the time specified in the next sentence, the Termination Fee. In the case of any termination of this Agreement by Parent pursuant to Section ~~9.1(e~~8.1(d), the fee referred to in the preceding sentence shall be paid by the Company within two (2) business days after such termination; and in the case of termination of this Agreement by the Company pursuant to Section 8.1(e), the fee referred to in the preceding sentence shall be paid by the Company at or if prior to the time of such termination. (d) In the event that the Company has not materially breached its obligations under Section 6.5 and this Agreement is terminated by Parent or the Company pursuant to ~~any other provision~~ Sections 8.1(b), 8.1(c) or 8.1(g), in each case primarily as a result of ~~Section 9.1 at any time after~~ or primarily in connection with the ~~occurrence~~ failure of ~~a Triggering Event~~the condition set forth in clause “(f)” of Exhibit B to be satisfied or fulfilled, then ~~the Company~~ Parent shall pay to ~~Parent~~ the ~~Fee and the Expense Payment~~ Company, in cash, a nonrefundable fee in the amount of the Parent Termination Fee within two (2) business days following such termination. (e) If ~~this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under ~~this~~ Section ~~9.3~~8.3(b) or Section 8.3(c), ~~then:~~ then (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all reasonable costs and expenses (including fees and disbursements of legal counsel) actually incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.3, and (ii) the Company shall pay to Parent interest on any amount that is overdue (for the period during which such amount is overdue) at a rate per annum equal to 300 basis points over the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such amount was originally required to be paid. (f) If Parent fails to pay when due any amount payable under Section 8.3(d), then (i) Parent shall reimburse the Company for all reasonable costs and expenses (including fees and disbursements of legal counsel) actually incurred in connection with the collection of such overdue amount and the enforcement by the ~~other party~~ Company of its rights under this Section ~~9.3;~~ 8.3, and (ii) ~~the first party~~ Parent shall pay to the ~~other party~~ Company interest on ~~such~~ any amount that is overdue ~~amount~~ (for the period ~~commencing as of the date~~ during which such ~~overdue amount was originally required to be paid and ending on the date such overdue~~ amount is ~~actually paid to the other party in full~~overdue) at a rate per annum ~~500~~ equal to 300 basis points over the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such ~~overdue~~ amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Diedrich Coffee Inc), Merger Agreement (Green Mountain Coffee Roasters Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all ~~fees and~~ expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not any shares are purchased pursuant to the Offer and whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with (i) the filing, printing and mailing of the Offer Documents and the Proxy Statement and any amendments or supplements thereto and (ii) the filing by Parent and the Company of the premerger notification and report forms relating to the Contemplated Transactions under the HSR Act and the filing of any notice or other document required or advisable, in the reasonable judgment of the Parent, under any applicable foreign antitrust or competition-related Legal Requirement. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(c), and (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) ~~on or prior to 12 months~~ within one year after the date of ~~such termination~~termination of this Agreement, ~~either~~ an Acquisition Transaction is consummated or a definitive agreement ~~relating to~~ contemplating an Acquisition Transaction is ~~entered into~~executed, then the Company shall pay to ~~Parent~~ Parent, in cash upon the ~~Expense Payment and~~ earlier to occur of (A) such Acquisition Transaction (as it may have been modified, including any other Acquisition Transaction among or involving the parties to such definitive agreement or any of such parties’ affiliates) being consummated or (B) a ~~non-refundable~~ definitive agreement contemplating such Acquisition Transaction is entered into, a nonrefundable fee in the amount of $~~600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~21.6 million; provided, however, ~~that, solely~~ that for purposes of ~~this Section 9.3(b~~clause “(iii)” above, all references to “15%” in the definition of “Acquisition ~~Transaction”~~ Transaction shall be deemed to refer ~~instead~~ to “50%”.” (dc) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~8.1(d), or if this Agreement is terminated by Parent or the Company pursuant to any ~~other provision~~ subsection of Section ~~9.1 at any time after~~ 8.1 following the occurrence of a Triggering Event, then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Fee and~~ time specified in the ~~Expense Payment~~ next sentence, a nonrefundable fee in ~~cash. (e) If~~ the amount of $21.6 million. In the case of any termination of this Agreement ~~is terminated~~ by Parent pursuant to Section ~~9.1(f)~~8.1(d) or, ~~then~~ under the ~~Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3~~circumstances described above, any other subsection of Section 8.1, the fee ~~required~~ referred to ~~be paid pursuant to this Section 9.3~~ in the preceding sentence shall be paid ~~and made~~ by the Company within two (2) business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hd) If ~~either party~~ the Company fails to pay when due any amount payable under ~~this~~ Section ~~9.3~~8.3(b) or Section 8.3(c), ~~then:~~ then (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of legal counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3;~~ 8.3, and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500~~ equal to 200 basis points over the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such ~~overdue~~ amount was originally required to be paid.

Appears in 2 contracts

Samples: Merger Agreement (Sonic Solutions/Ca/), Agreement and Plan of Merger and Reorganization (Rovi Corp)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement ~~and~~ or any of the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such fees and expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with (i) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto and (ii) the filing by the Parties of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust or competition-related law or regulation or other Legal Requirement. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If If: (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b); (ii) the failure to consummate the Merger by the End Date was primarily attributable to a material failure on the part of the Company to perform any covenant or ~~Section 9.1(d~~obligation in this Agreement required to be performed by the Company at or prior to the Effective Time; (iii) at or prior to the time of the termination of this Agreement, a Company Acquisition Proposal shall have been made known to the Company or been publicly disclosed, announced, commenced, submitted or made; and (iv) within 12 months after the date of such termination of this Agreement, a Company Acquisition Transaction (whether or not relating to such Company Acquisition Proposal) is consummated or a definitive agreement providing for a Company Acquisition Transaction (whether or not relating to such Company Acquisition Proposal) is executed and the Company Acquisition Transaction contemplated thereby is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), then the Company shall pay (or cause to be paid) to Parent a non-refundable fee in the amount of $150,000,000 (the “Termination Fee”) in cash; provided, however, that, for purposes of clause “(iv)” of this Section 8.3(b), all references to “15%” and “85%” in the definition of “Company Acquisition Transaction” shall be deemed to be references to “50%”. (c) If: (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d); (ii) at or prior to the time of the termination of this ~~Agreement an~~ Agreement, a Company Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or ~~made,~~ made and such Company Acquisition Proposal shall not have been publicly withdrawn at least 10 Business Days prior to the Company Stockholders’ Meeting; and (iii) ~~on or prior to~~ within 12 months after the date of such ~~termination~~termination of this Agreement, ~~either an~~ a Company Acquisition Transaction (whether or not relating to such Company Acquisition Proposal) is consummated or a definitive agreement providing for a Company Acquisition Transaction (whether or not relating to an such Company Acquisition Proposal) is executed and the Company Acquisition Transaction contemplated thereby is ~~entered into~~subsequently consummated (regardless of whether such consummation occurs within such 12-month period), then the Company shall pay (or cause to be paid) to Parent the ~~Expense Payment and a non-refundable fee~~ Termination Fee in ~~the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~cash; provided, however, that, ~~solely~~ for purposes of clause “(iii)” of this Section ~~9.3(b~~8.3(c), all references to “15%” and “85%” in the definition of “Company Acquisition Transaction” shall be deemed to ~~refer instead~~ be references to “50%”.” (d) If this Agreement is ~~terminated~~ terminated: (i) by Parent pursuant to Section ~~9.1(e~~8.1(f); or (ii) by Parent or the Company pursuant Section 8.1(d) at any time after the occurrence of a Company Triggering Event, then the Company shall pay (or if cause to be paid) to Parent the Termination Fee in cash. (e) If: (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b); (ii) the failure to consummate the Merger by the End Date was primarily attributable to a material failure on the part of Parent to perform any ~~other provision~~ covenant or obligation in this Agreement required to be performed by Parent at or prior to the Effective Time; (iii) at or prior to the time of the termination of this Agreement, a Disruptive Parent Acquisition Proposal shall have been made known to Parent or been publicly disclosed, announced, commenced, submitted or made; and (iv) within 12 months after the date of such termination of this Agreement, a Parent Acquisition Transaction (whether or not relating to such Disruptive Parent Acquisition Proposal) is consummated or a definitive agreement providing for a Parent Acquisition Transaction (whether or not relating to such Disruptive Parent Acquisition Proposal) is executed and the Parent Acquisition Transaction contemplated thereby is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), then Parent shall pay (or cause to be paid) to the Company the Termination Fee in cash; provided, however, that, for purposes of clause “(iv)” of this Section ~~9.1~~ 8.3(e), all references to “15%” and “85%” in the definition of “Parent Acquisition Transaction” shall be deemed to be references to “50%”. (f) If: (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e); (ii) at or prior to the time of the termination of this Agreement, a Disruptive Parent Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made and such Disruptive Parent Acquisition Proposal shall not have been publicly withdrawn at least 10 Business Days prior to the Parent Stockholders’ Meeting; and (iii) within 12 months after the date of such termination of this Agreement, a Parent Acquisition Transaction (whether or not relating to such Disruptive Parent Acquisition Proposal) is consummated or a definitive agreement providing for a Parent Acquisition Transaction (whether or not relating to such Disruptive Parent Acquisition Proposal) is executed and the Parent Acquisition Transaction contemplated thereby is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), then Parent shall pay (or cause to be paid) to the Company the Termination Fee in cash; provided, however, that, for purposes of clause “(iii)” of this Section 8.3(f), all references to “15%” and “85%” in the definition of “Parent Acquisition Transaction” shall be deemed to be references to “50%”. (g) If this Agreement is terminated: (i) by the Company pursuant to Section 8.1(g); or (ii) by Parent or the Company pursuant Section 8.1(e) at any time after the occurrence of a Parent Triggering Event, then Parent shall pay (or cause to be paid) to the Company ~~shall pay to Parent~~ the Termination Fee ~~and the Expense Payment~~ in cash. (eh) ~~If this Agreement is terminated by~~ Any Termination Fee required to be paid to Parent pursuant to Section ~~9.1(f~~8.3(b) or Section 8.3(c) shall be paid by or on behalf of the Company contemporaneously with the consummation of the Company Acquisition Transaction contemplated by clause “(iv)” of Section 8.3(b) or clause “(iii)” Section 8.3(c), ~~then~~ as the ~~Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee~~ case may be. Any Termination Fee required to be paid to the Company pursuant to ~~this~~ Section ~~9.3~~ 8.3(e) or Section 8.3(f) shall be paid by or on behalf of Parent contemporaneously with the consummation of the Parent Acquisition Transaction contemplated by clause “(iv)” of Section 8.3(e) or clause “(iii)” of Section 8.3(f), as the case may be. Any Termination Fee required to be paid to Parent pursuant to Section 8.3(d) shall be paid by or on behalf of the Company (i) in the case of a termination of this Agreement by the Company, at or prior to the time of such termination, and ~~made~~ (ii) in the case of a termination of this Agreement by Parent, within two ~~business days~~ Business Days after such termination. Any Termination Fee required to be paid to the Company pursuant to Section 8.3(g) shall be paid by or on behalf of Parent (A) in the case of a termination of this Agreement by Parent, at or prior to the time of such termination, and (B) in the case of a termination of this Agreement by the Company, within two Business Days after such termination. (gi) Each ~~party~~ of the Parties acknowledges and agrees that in no event shall Parent or the Company be required to pay the Termination Fee under this Section 8.3 on more than one occasion, whether or not such fee may be payable under more than one provision of this Agreement at the same or at different times and upon the occurrence of different events. Each of the Parties acknowledges and agrees that (i) the covenants and obligations contained in this Section ~~9.3~~ 8.3 are an integral part of the Contemplated Transactions, and that, without these covenants and obligations, ~~such party~~ the Parties would not have entered into this Agreement, and (ii) the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, in the circumstances in which the Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. (hj) If ~~either party~~ the Company or Parent fails to pay when due any amount payable under this Section ~~9.3~~8.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 8.3 and (ii) ~~the first party~~ such Party shall pay ~~to the other party~~ 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the ~~“prime rate” (as announced by Bank~~ sum of ~~America, N.A. or any successor thereto)~~ the Prime Rate in effect on the date such overdue amount was originally required to be ~~paid~~paid plus 500 basis points. (k) Any fee or other amount payable pursuant to this Section 8.3 shall be paid free and clear of all deductions and withholdings.

Appears in 2 contracts

Samples: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)

Appears in 2 contracts

Samples: Merger Agreement (Broadcast International Inc), Merger Agreement (Alldigital Holdings, Inc.)

Expenses; Termination Fees. (a) Except as set forth in Section 8.2 and this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated~~. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b)~~; provided, ~~then the Company shall pay to Parent the Expense Payment;~~however, that: (i) ~~provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16,~~ Parent and the Company shall ~~not be required~~ share equally all fees and expenses, other than attorneys’ fees, incurred in connection with: (A) the filing, printing and mailing of the Offer Documents, Schedule 14D-9 and the Proxy Statement and any amendments or supplements thereto; (B) the retention of any information agent, depositary or other service provider in connection with the Offer; and (C) the filing by Parent and the Company of the premerger notification and report forms relating to ~~pay to Parent~~ the ~~Expense Payment;~~Contemplated Transactions under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust or competition-related Legal Requirement; and (ii) ~~provided, further, however,~~ if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is ~~terminated~~ terminated: (A)(1) by Parent or the Company pursuant to Section ~~9.1(b~~8.1(c) or Section ~~9.1(d~~8.1(d) or by Parent pursuant to Section 8.1(g) (in the case of Section 8.1(g)(i), only in the event of a willful breach of the Company’s representations or warranties contained in this Agreement); and (ii2) at or prior to the time of ~~the~~ such termination ~~of this Agreement~~ an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made; or (B) by Parent pursuant to Section 8.1(e) or by the Company pursuant to Section 8.1(f), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(b) or Section 8.3(c)), in each of clause “(A)” and “(~~iii~~B)” of this sentence, the Company shall make a non-refundable cash payment to Parent, at the time specified in the next sentence, in an amount equal to $3,640,000 (or, if higher, the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the Shareholder Agreements and otherwise in connection with the Offer, the Merger or any of the other Contemplated Transactions and the Shareholder Agreements); provided, however, in the event the Company is required to make such payment pursuant to this Section 8.3(a)(ii), no additional payment of expenses shall be due to Parent pursuant to Section 8.2 for deliberate, willful and material breach (it being understood, however, that Parent’s other remedies, if any, shall not be affected by any payments under Section 8.2 or 8.3). In the case of termination of this Agreement by the Company pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(f), any non-refundable payment required to be made pursuant to clause “(ii)” of the proviso to Section 8.3(a) shall be made by the Company prior to or at the time of such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(c), Section 8.1(d), Section 8.1(e) or Section 8.1(g), any non-refundable payment required to be made pursuant to clause “(ii)” of the proviso to Section 8.3(a) shall be made by the Company within two business days after such termination. (b) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(c) or Section 8.1(d) or by Parent pursuant to Section 8.1(g) (in the case of Section 8.1(g)(i), only in the event of a willful breach of the Company’s representations or warranties contained in this Agreement) and: (i) at or prior to 12 the time of such termination an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made; and (ii) within 18 months after the date of any such termination, ~~either~~ an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is consummated or a definitive agreement ~~relating to~~ contemplating an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is ~~entered into~~executed, then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment and~~ earlier of the time such Acquisition Transaction is consummated or the time such definitive agreement is executed, a non-refundable fee in the amount of $~~600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~14,560,000; provided, however, that~~, solely for purposes of~~ : (A) any payment made by the Company pursuant to Section 8.3(a)(ii) shall be credited against the fee payable under this Section ~~9.3(b~~8.3(b); and (B) in the event the Company is required to make such payment pursuant to this Section 8.3(b), ~~all references to “15%” in the definition~~ no additional payment of ~~“Acquisition Transaction”~~ expenses shall be ~~deemed~~ due to ~~refer instead~~ Parent pursuant to ~~“50%~~Section 8.2 for deliberate, willful and material breach (it being understood, however, that Parent’s other remedies, if any, shall not be affected by any payments under Section 8.2 or 8.3).” (dc) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e),~~ 8.1(e) or ~~if this Agreement is terminated~~ by ~~Parent or~~ the Company pursuant to ~~any other provision of~~ Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f8.1(f), then the Company shall pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment.~~ time specified in the next sentence (fand in addition to the amounts payable pursuant to Section 8.3(a)), a non-refundable fee in the amount of $14,560,000; provided, however, that any payment made by the Company pursuant to Section 8.3(a) ~~Unless otherwise provided in~~ shall be credited against the fee payable under this Section ~~9.3, any fee required to be paid~~ 8.3(c). In the case of termination of this Agreement by Parent pursuant to ~~this~~ Section ~~9.3~~ 8.1(e), the fee referred to in the preceding sentence shall be paid ~~and made~~ by the Company within two business days after such termination; and in the case of termination of this Agreement by the Company pursuant to Section 8.1(f), the fee referred to in the preceding sentence shall be paid by the Company at or prior to the time of such termination. (gd) Each ~~party~~ of the Company and Parent acknowledges and agrees that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 8.3, are an integral part of the Contemplated Transactions, that such fees would constitute liquidated damages in a reasonable amount that will compensate Parent and Acquisition Sub in the circumstances where such fee is payable, and that, without these ~~covenants and obligations~~agreements, ~~such party~~ Parent would not have entered into this Agreement~~. (h) If either party~~ . Accordingly, if the Company fails to pay when due any amount payable under this Section ~~9.3~~8.3, then: (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3~~8.3; and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500~~ equal to 300 basis points over the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The fees payable pursuant to this Section 8.3 shall be paid by the Company free and clear of all deductions or withholdings. In the event that a deduction or withholding is required by applicable Legal Requirements, the Company shall pay such additional amount as shall be required to ensure that the net amount received by Parent shall equal the full amount which would have been received by it, had no such deduction or withholding been required to be made, and the Company shall indemnify Parent for such withholding or deductions, and interest, additions to tax and penalties thereon.

Appears in 2 contracts

Samples: Merger Agreement (Applied Materials Inc /De), Merger Agreement (Applied Materials Inc /De)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.3, all ~~fees and expenses~~ Transaction Costs incurred in connection with this ~~Agreement~~ Agreement, the Transactions and the ~~Transactions shall~~ Spin-Out will be paid by the party incurring such ~~fees and expenses~~Transaction Costs, whether or not the Merger is consummated. All Transaction Costs of Parent shall be assumed by Spin-Out Sub as a result the Spin-Out, and following the consummation of the Spin-Out, neither Parent, the Company nor the Surviving Corporation shall be liable for any Transaction Costs of Parent. (b) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(b), then~~ In the ~~Company shall pay to Parent the Expense Payment;~~event that either: (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (iA) this Agreement is terminated ~~by Parent or the Company~~ pursuant to Section ~~9.1(b~~7.1(b), 7.1(e) or ~~Section 9.1(d~~7.1(j), (iiB) at ~~or prior to~~ any time before such termination and before the ~~time of the termination of this Agreement~~ Parent Shareholders’ Meeting an Acquisition Proposal with respect to Parent shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to Parent’s Board of Directors or to Parent Shareholders generally and (~~iii~~C) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Parent enters into a definitive agreement ~~relating~~ with respect to ~~an Acquisition~~ a Subsequent Transaction or consummates a Subsequent Transaction; or (ii) this Agreement is ~~entered into, then~~ terminated by the Company ~~shall~~ pursuant to Section 7.1(f); then Parent shall, subject to the terms of Section 7.3(d), pay to ~~Parent~~ the ~~Expense Payment and~~ Company or its designee(s) a ~~non-refundable~~ nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 500,000 (the “Parent Termination Fee”) by wire transfer of same-day funds (1) in ~~cash~~ the case of a payment required by clause (i) above, on ~~or prior to~~ the earlier of the date of ~~consummation of such Acquisition Transaction~~ entry into a definitive agreement or the date of ~~execution~~ consummation referred to in clause (i)(C) and (2) in the case of a payment required by clause (ii) above, within two (2) Business Days of the date of termination of this Agreement. (c) In the event that either: (i) (A) this Agreement is terminated pursuant to Section 7.1(b), 7.1(d) or 7.1(i), (B) at any time before such termination and before the earlier of the Parent Shareholders’ Meeting or the delivery of the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company’s Board of Directors or to Company Stockholders generally and (C) within twelve (12) months after the date of such termination, the Company enters into a definitive ~~agreement~~agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction; (ii) this Agreement is terminated by the Parent pursuant to Section 7.1(h); ~~provided~~or (iii) this Agreement is terminated by the Company as a result of Company Change in Recommendation pursuant to Section 7.1(g); then the Company shall, ~~however~~subject to the terms of Section 7.3(f), ~~that~~pay to Parent or its designee(s) a nonrefundable fee in an amount equal to $750,000 (the “Company Termination Fee”) by wire transfer of same-day funds (1) in the case of a payment required by clause (i) above, ~~solely for purposes~~ on the earlier of the date of entry into a definitive agreement or the date of consummation referred to in clause (i)(C) and (2) in the case of a payment required by clause (ii) or (iii) above, within two (2) Business Days of the date of termination of this ~~Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~Agreement.” (d) If this Agreement is terminated by ~~Parent~~ Company pursuant to ~~Section 9.1(e~~Sections 7.1(e) or 7.1(j), or if this Agreement is terminated by Parent pursuant to Section 7.1(e) or 7.1(b) (but only if at such time the Company would have been permitted to terminate this Agreement pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~7.1(e) or 7.1(j)), then Parent shall reimburse Company for all reasonable fees and expenses incurred by Company in connection with this Agreement and the Transactions, including without limitation (x) all fees and expenses incurred in connection with the preparation, printing and filing, as applicable, of the Form S-4 Registration Statement (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto) and (y) all fees and expenses incurred in connection with the preparation and filing under any filing requirement of any Governmental Body applicable to this Agreement and the Transactions (such expenses, including (x) and (y) above, collectively, the “Third Party Expenses”), up to a maximum of $500,000 (the “Expense Cap”), by wire transfer of same-day funds within ten (10) Business Days following the date on which Company submits to Parent true and correct copies of reasonable documentation supporting such Third Party Expenses. Notwithstanding the foregoing, if Company is entitled to reimbursement for Third Party Expenses and the Company Termination Fee, Parent’s liability shall ~~pay~~ be capped at an amount equal to ~~Parent~~ the Company Termination Fee and in no event shall Parent be required to pay Company any amount in excess of the ~~Expense Payment~~ Company Termination Fee in ~~cash.~~the event of termination of this Agreement. 66 (e) If this Agreement is terminated by Parent pursuant to Sections 7.1(d) or 7.1(i), or if this Agreement is terminated by the Company pursuant to Section ~~9.1(f~~7.1(d) or 7.1(b) (but only if at such time Parent would have been permitted to terminate this Agreement pursuant to Section 7.1(d) or 7.1(i)), then ~~the~~ Company shall ~~pay~~ reimburse Parent for all Third Party Expenses incurred by Parent up to ~~Parent~~ a maximum of the Expense ~~Payment~~Cap (the “Parent Expense Reimbursement”), by wire transfer of same-day funds within ten (10) Business Days following the date on which Parent submits to Company true and correct copies of reasonable documentation supporting such Third Party Expenses; Notwithstanding the foregoing, if Parent is entitled to the Parent Expense Reimbursement and the Parent Termination Fee, Company’s liability shall be capped at an amount equal to the Parent Termination Fee and in no event shall Company be required to pay Parent any amount in excess of the Parent Termination Fee in the event of termination of this Agreement. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by such Party under ~~this~~ Section ~~9.3~~7.3(b), ~~then:~~ (c) or (d), then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 7.3, and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America, N.A. or any successor thereto~~published in The Wall Street Journal) in effect on the date such overdue amount was originally required to be paid. (g) The Parties agree that the payment of the fees and expenses set forth in this Section 7.3, subject to Section 7.2, shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 7.3, it being understood that in no event shall either Parent or Company be required to pay fees or damages payable pursuant to this Section 7.3 on more than one occasion. Subject to Section 7.2, the payment of the fees and expenses set forth in this Section 7.3, and the provisions of Section 8.9, each of the Parties and their respective Affiliates shall have no liability, shall not be entitled to bring or maintain any other claim, action or proceeding against the other, shall be precluded from any other remedy against the other, at law or in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Party) in connection with or arising out of the termination of this Agreement, any breach by any Party giving rise to such termination or the failure of the Merger and the other Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the Merger, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 7.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable.

Appears in 1 contract

Samples: Merger Agreement (Myos Rens Technology Inc.)

Appears in 1 contract

Samples: Merger Agreement (Ecc International Corp)

Appears in 1 contract

Samples: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3 and subject to Section 9 (including the indemnification and other obligations of the Seller thereunder), all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the ~~Merger is consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i)~~ Closing occurs; provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If that if: (i) this Agreement is terminated by ~~Parent~~ the Purchaser or the ~~Company~~ Seller pursuant to Section ~~9.1(b~~8.1(b) ~~or Section 9.1(d), (ii)~~ and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made~~, and~~ ; (~~iii~~ii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by ~~Parent~~ the Purchaser or the Seller pursuant to Section ~~9.1(e~~8.1(d)~~, or if~~ ; (iii) this Agreement is terminated by ~~Parent or~~ the ~~Company~~ Purchaser pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash.~~ 8.1(e); or (eiv) If this Agreement is terminated by ~~Parent~~ the Seller pursuant to Section ~~9.1(f~~8.1(h), then in each case referred to in clauses “(i)” through “(iv)” of this sentence, the ~~Company~~ Seller shall ~~pay~~ make a nonrefundable cash payment to ~~Parent~~ the ~~Expense Payment~~Purchaser, at the time specified in Section 8.3(b), in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of the Purchaser in connection with the preparation and negotiation of the Transactional Agreements and otherwise in connection with the Transactions, up to a maximum amount of $350,000. (fb) ~~Unless otherwise provided in~~ In the case of termination of this Agreement by the Seller pursuant to Section ~~9.3~~8.1(b), Section 8.1(d) or Section 8.1(h), any ~~fee~~ nonrefundable payment required to be ~~paid~~ made pursuant to ~~this~~ the proviso to Section ~~9.3~~ 8.3(a) shall be ~~paid~~ made by the Seller prior to the time of such termination; and in the case of termination of this Agreement by the Purchaser pursuant to Section 8.1(b), Section 8.1(d) or Section 8.1(e), any nonrefundable payment required to be made pursuant to the proviso to Section 8.3(a) shall be made by the Seller within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hc) If ~~either party~~ the Seller fails to pay when due any amount payable by the Seller under this Section ~~9.3~~8.3, then: (i) ~~such party~~ the Seller shall reimburse the ~~other party~~ Purchaser for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the ~~other party~~ Purchaser of its rights under this Section ~~9.3~~8.3; and (ii) the ~~first party~~ Seller shall pay to the ~~other party~~ Purchaser 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 the ~~other party~~ Purchaser in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 1 contract

Samples: Asset Purchase Agreement (Fairmarket Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 10.3 and Section 6.10 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is ~~consummated~~consummated provided, however, that Vibrant and the Company shall share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by ~~Parent~~ Vibrant or the Company pursuant to Section ~~9.1(b~~10.1(e) or by the Company pursuant to Section ~~9.1(d~~10.1(f), (ii) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Vibrant Shareholder Meeting an Acquisition Proposal with respect to Vibrant shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Vibrant Board (and shall not have been withdrawn) and (iii) ~~on or prior~~ in the event this Agreement is terminated pursuant to 12 Section 10.1(e) only, within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Vibrant enters into a definitive agreement ~~relating~~ with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Vibrant shall pay to the Company, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $2,500,000 (the “Company Termination Fee”). (c) If this Agreement is terminated (x) by Vibrant pursuant to Section 10.1(j) or (y) by the Company pursuant to Section 10.1(f) solely, in the case of this clause (y), following a Vibrant Board Adverse Recommendation Change in connection with a Vibrant Intervening Event, then Vibrant shall pay to the Company, concurrent with such termination, the Company Termination Fee. (d) If (i) this Agreement is terminated by Vibrant pursuant to Section 10.1(d) or Section 10.1(g), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) in the event this Agreement is terminated pursuant Section 10.1(d) only, within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Vibrant, within ten (10) Business Days after termination (or, if applicable, upon such entry into a ~~non-refundable~~ definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 2,500,000 (the “Vibrant Termination Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(f~~10.1(f) or Section 10.1(h), ~~then~~ Vibrant shall reimburse the Company ~~shall pay~~ for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions, up to ~~Parent~~ a maximum of $500,000, by wire transfer of same-day funds within ten (10) Business Days following the ~~Expense Payment~~date on which the Company submits to Vibrant accurate and complete copies of reasonable documentation supporting such expenses. (f) ~~Unless otherwise provided in~~ If this ~~Section 9.3, any fee required to be paid~~ Agreement is terminated by Vibrant pursuant to Section 10.1(g) or Section 10.1(i), the Company shall reimburse Vibrant for all reasonable out-of-pocket fees and expenses incurred by Vibrant in connection with this ~~Section 9.3 shall be paid~~ Agreement and ~~made~~ the Contemplated Transactions, up to a maximum of $500,000, by wire transfer of same-day funds within ~~two business days after~~ ten (10) Business Days following the date on which Vibrant submits to the Company accurate and complete copies of reasonable documentation supporting such ~~termination~~expenses. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section ~~9.3~~10.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 10.3 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (h) The Parties agree that, subject to Section 10.2, the payment of the fees and expenses set forth in this Section 10.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 10.3, it being understood that in no event shall either Vibrant or the Company be required to pay the individual fees or damages payable pursuant to this Section 10.3 on more than one occasion. Subject to Section 10.2, following the payment of the fees and expenses set forth in this Section 10.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 10.3 are an integral part of the Contemplated Transactions, (y) without these agreements, the Parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 10.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable.

Appears in 1 contract

Samples: Merger Agreement (Vascular Biogenics Ltd.)

Appears in 1 contract

Samples: Merger Agreement (Applied Materials Inc /De)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 10.3 and Section 6.10 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If (i) this Agreement is terminated by ~~Parent~~ Magenta or the Company pursuant to Section ~~9.1(b), then~~ 10.1(e) or by the Company ~~shall pay~~ pursuant to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed10.1(f), (ii) at any time after the ~~claim(s)~~ date of this Agreement and prior to the Magenta Stockholder Meeting, an Acquisition Proposal with respect to ~~such Legal Proceeding has~~ Magenta shall have been ~~timely and duly reported~~ publicly announced, disclosed or otherwise communicated to the ~~carrier for the Company’s directors~~ Magenta Board (and ~~officers and/or errors and omissions insurance~~ shall not have been withdrawn) and (iii) ~~Parent terminates~~ in the event this ~~Agreement~~Agreement is terminated pursuant to Section 10.1(e), within twelve (12) months after the date of such termination, Magenta enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Magenta shall pay to the Company, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $13,300,000 (the “Company Termination Fee”). (c) If this Agreement is terminated (i) by the Company pursuant to Section 10.1(b) or Section 10.1(e) (when at the time this Agreement is terminated, the Company ~~shall not pay~~ had the right to ~~Parent the Expense Payment and Parent~~ terminate this Agreement pursuant to Section 10.1(f)) then Magenta shall pay to the Company ~~$400,000~~within five (5) Business Days of such termination, the Company Termination Fee or (ii) by Magenta pursuant to Section 10.1(j), then Magenta shall pay to the Company, concurrent with such termination, the Company Termination Fee. (cd) If (i) this Agreement is terminated by ~~Parent or the Company~~ Magenta pursuant to Section ~~9.1(b~~10.1(d) or Section ~~9.1(d~~10.1(g), (ii) at ~~or prior to~~ any time after the ~~time of the termination~~ date of this Agreement and before obtaining the Required Company Stockholder Vote, an Acquisition Proposal with respect to the Company shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) ~~on or prior~~ in the event this Agreement is terminated pursuant to 12 Section 10.1(d), within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ the Company enters into a definitive agreement ~~relating~~ with respect to ~~an Acquisition~~ a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Magenta, within ten (10) Business Days after termination (or, if applicable, upon such entry into a ~~non-refundable~~ definitive agreement or consummation of a Subsequent Transaction), a nonrefundable fee in ~~the~~ an amount of equal to $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash13,300,000. (e) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(f~~10.1(h), ~~then~~ Magenta shall reimburse the Company ~~shall pay~~ for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions, up to ~~Parent~~ a maximum of $1,500,000, by wire transfer of same-day funds within ten (10) Business Days following the ~~Expense Payment~~date on which the Company submits to Magenta true and correct copies of reasonable documentation supporting such expenses. (f) ~~Unless otherwise provided in~~ If this ~~Section 9.3, any fee required to be paid~~ Agreement is terminated by Magenta pursuant to Section 10.1(i), the Company shall reimburse Magenta for all reasonable out-of-pocket fees and expenses incurred by Magenta in connection with this ~~Section 9.3 shall be paid~~ Agreement and ~~made~~ the Contemplated Transactions, up to a maximum of $1,500,000, by wire transfer of same-day funds within ~~two business days after~~ ten (10) Business Days following the date on which Magenta submits to the Company true and correct copies of reasonable documentation supporting such ~~termination~~expenses. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section ~~9.3~~10.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 10.3 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (h) The Parties agree that, subject to Section 10.2, the payment of the fees and expenses set forth in this Section 10.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 10.3, it being understood that in no event shall either Magenta or the Company be required to pay the individual fees or damages payable pursuant to this Section 10.3 on more than one occasion. Subject to Section 10.2, following the payment of the fees and expenses set forth in this Section 10.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 10.3 are an integral part of the Contemplated Transactions, (y) without these agreements, the Parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 10.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable; provided, however, that nothing in this Section 10.3(h) shall limit the rights of the Parties under Section 11.10.

Appears in 1 contract

Samples: Merger Agreement (Magenta Therapeutics, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated.; provided, however, that: (bi) If Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, accounting fees, and financial advisory fees, incurred in connection with (A) the filing, printing and mailing of the Offer Documents and the Proxy Statement and any amendments or supplements thereto and (B) the filing of any notice or other document under any applicable antitrust law or regulation; and (ii) if this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~8.1(c) (and following the date hereof and prior to the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made), Section 8.1(d) (and following the date hereof and prior to the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made), Section 8.1(e), Section 8.1(f) or Section 8.1(i), or if this Agreement is terminated by the Company pursuant to Section 8.1(c)) (and following the date hereof and prior to the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made), Section 8.1(d) (and following the date hereof and prior to the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made) or Section 8.1(h), then (without limiting any obligation of the Company ~~shall~~ to pay any fee payable pursuant to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16Section 8.3(c)), the Company shall ~~not be required~~ make a nonrefundable cash payment to ~~pay~~ Parent, at the time specified in Section 8.3(b), in an amount equal to the aggregate amount of all reasonable fees and expenses (including all reasonable attorneys' fees, accountants' fees, financial advisory fees and all filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the ~~Expense Payment; (ii) provided, further, however, if (i) as~~ due diligence review of the ~~End Date all~~ Company by Parent, Acquisition Sub and their respective Representatives, the preparation and negotiation of this Agreement and otherwise in connection with the Offer, the Merger or any of the ~~conditions to the Closing~~ other transactions contemplated by this Agreement but which amount in ~~ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause~~ no event shall exceed $500,000. (b) In the case of termination of this Agreement by the Company pursuant to Section ~~7.8 pending~~ 8.1(c), Section 8.1(d), or ~~threatened~~ Section 8.1(h), any nonrefundable expense reimbursement payment required to be made pursuant to clause "(~~or any other conditions~~ ii)" of ~~ARTICLE 7 have not been satisfied solely as a result~~ the proviso to Section 8.3(a) shall be made by the Company prior to the time of such ~~Legal Proceeding~~ termination if the Company has been advised of such amount or two (2) business days following the time that the Company has been advised of such amount; and ~~would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed~~in the case of termination of this Agreement by Parent pursuant to Section 8.1(c), Section 8.1(d), Section 8.1(e), Section 8.1(f) or Section 8.1(i), any nonrefundable expense reimbursement payment required to be made pursuant to clause "(ii)" of the proviso to Section 8.3(a) shall be made by the ~~claim(s~~Company within two (2) ~~with respect to~~ business days after such ~~Legal Proceeding~~ termination if the Company has been ~~timely and duly reported to~~ advised of such amount or two (2) business days following the ~~carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement,~~ time that the Company ~~shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000~~is advised of such amount. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(c) or Section ~~9.1(d), (ii~~8.1(d) and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, ~~and~~ (~~iii~~ii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~8.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (eiii) If this Agreement is terminated by Parent pursuant to Section ~~9.1(f~~8.1(f) and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made and within one (1) year from the date of termination the Company enters into an agreement with respect to, approves, recommends or consummates an Acquisition Proposal or agrees or resolves to do any of the foregoing, (iv) this Agreement is terminated by the Company pursuant to Section 8.1(h), or (v) this Agreement is terminated by Parent pursuant to Section 8.1(i) and at or prior to the time of termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, then the Company shall pay to Parent, in cash at the time specified in the next sentence (and in addition to the amounts payable pursuant to Section 8.3(a)), a nonrefundable fee in the amount equal to Four Million Dollars ($4,000,000) (the "Termination Fee"). In the case of termination of this Agreement by the Company pursuant to Section 8.1(c) or Section 8.1(d), the Termination Fee shall be paid by the Company prior to the time of such termination; in the case of termination of this Agreement by Parent pursuant to Section 8.1(c), Section 8.1(d), Section 8.1(e) or Section 8.1(i), the ~~Expense Payment.~~ Termination Fee shall be paid by the Company within two (f2) ~~Unless otherwise provided~~ business days after such termination; in the case of termination of this Agreement by Parent pursuant to Section ~~9.3~~8.1(f), the Termination Fee shall be paid by the Company within two (2) business days after the earlier of such date or the date the Company enters into an agreement with respect to, approves, recommends or consummates an Acquisition Proposal or agrees or resolves to do any ~~fee~~ of the foregoing; and in the case of termination of this Agreement by the Company pursuant to Section 8.1(h), the Termination Fee shall be paid by the Company at or prior to the time of such termination. Notwithstanding the foregoing, no Termination Fee shall be required to be paid pursuant to clause (i) or (v) of the first sentence of this Section ~~9.3 shall be paid and made~~ 8.3(c) if, within ~~two~~ five (5) business days after the Acquisition Proposal shall have been publicly disclosed, announced or commenced or publicly or non-publicly submitted, made or communicated to the Company's board of directors, the Company's board of directors (A) determines that such ~~termination~~Acquisition Proposal does not constitute a Superior Proposal, (B) so notifies, in writing, Parent and the Person or Persons that made the Acquisition Proposal and (C) in the case of an Acquisition Proposal that has been publicly disclosed, within five (5) business days thereafter files with the SEC, and mails to the Company's shareholders, a supplement to the Company's Schedule 14D-9 describing such determination and reaffirming the Company's recommendation of the Offer and the Merger; provided, however, that if at any time prior to the date one (1) year after the date of any such termination pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(i), the Company enters into an agreement with respect to, approves or recommends or consummates, an Acquisition Proposal, or agrees or resolves to do any of the foregoing, the Company shall pay the Termination Fee required pursuant to this Section 8.3(c). (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hd) If ~~either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3~~8.3, ~~then:~~ then (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3;~~ 8.3, and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ 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 ~~the other party~~ Parent in full) at a rate per annum ~~500 basis points over~~ equal to the “"prime rate” " (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. Payment of the Termination Fee and expense reimbursement, if any, as the case may be, shall be Parent's and Acquisition Sub's exclusive remedy for any termination of this Agreement in accordance with this Section 8, and there shall be no further liability of the Company as a result of such termination, except in all cases in the 45 event of (i) fraud or (ii) an intentional or willful breach of this Agreement by the Company or its Representatives.

Appears in 1 contract

Samples: Merger Agreement (Hte Inc)

Appears in 1 contract

Samples: Business Combination Agreement (KBL Merger Corp. Iv)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 10.3 and Section 6.11 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Zordich and the Company shall share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Proxy Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by ~~Parent~~ Zordich or the Company pursuant to Section ~~9.1(b~~10.1(e) or by the Company pursuant to Section ~~9.1(d~~10.1(f), (ii) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Zordich Stockholder Meeting an Acquisition Proposal with respect to Zordich shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Zordich Board (and shall not have been withdrawn) and (iii) ~~on or prior~~ in the event this Agreement is terminated pursuant to 12 Section 10.1(e), within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Zordich enters into a definitive agreement ~~relating~~ with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Zordich shall pay to the Company, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $3,375,000 (the “Company Termination Fee”). (c) If this Agreement is terminated by Zordich pursuant to Section 10.1(j), then Zordich shall pay to the Company, concurrent with such termination, the Company Termination Fee. (d) If (i) this Agreement is terminated by Zordich pursuant to Section 10.1(d) or Section 10.1(g), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) in the event this Agreement is terminated pursuant Section 10.1(d), within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Zordich, within ten (10) Business Days after termination (or, if applicable, upon such entry into a ~~non-refundable~~ definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 3,375,000 (the “Zordich Termination Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(f~~10.1(h), ~~then~~ Zordich shall reimburse the Company ~~shall pay~~ for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions, up to ~~Parent~~ a maximum of $350,000, by wire transfer of same-day funds within ten (10) Business Days following the ~~Expense Payment~~date on which the Company submits to Zordich true and correct copies of reasonable documentation supporting such expenses. (f) ~~Unless otherwise provided in~~ If this ~~Section 9.3, any fee required to be paid~~ Agreement is terminated by Zordich pursuant to Section 10.1(i), the Company shall reimburse Zordich for all reasonable out-of-pocket fees and expenses incurred by Zordich in connection with this ~~Section 9.3 shall be paid~~ Agreement and ~~made~~ the Contemplated Transactions, up to a maximum of $350,000, by wire transfer of same-day funds within ~~two business days after~~ ten (10) Business Days following the date on which Zordich submits to the Company true and correct copies of reasonable documentation supporting such ~~termination~~expenses. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section ~~9.3~~10.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 10.3 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (h) The Parties agree that, subject to Section 10.2, the payment of the fees and expenses set forth in this Section 10.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 10.3, it being understood that in no event shall either Zordich or the Company be required to pay the individual fees or damages payable pursuant to this Section 10.3 on more than one occasion. Subject to Section 10.2, following the payment of the fees and expenses set forth in this Section 10.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 10.3 are an integral part of the Contemplated Transactions, (y) without these agreements, the Parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 10.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable.

Appears in 1 contract

Samples: Merger Agreement (Zafgen, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If If: (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(b), ; (ii) after the date of this Agreement and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been ~~disclosed, announced, commenced, submitted~~ made known to the Company or ~~made,~~ publicly announced or communicated and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination; and (iii) ~~on or prior to~~ within 12 months after the date of any such termination, ~~either~~ an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is consummated or a definitive agreement ~~relating to~~ providing for an Acquisition Transaction ~~is entered into, then the Company shall pay~~ (whether or not relating to ~~Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of~~ such Acquisition ~~Transaction or the date of execution of such definitive agreement; provided, however, that, solely~~ Proposal) is executed (provided that for purposes of this ~~Section 9.3(b), all~~ clause (iii) the references to “15%” and “20%” in the definition of “Acquisition Transaction” shall be deemed to ~~refer instead~~ be references to “5040%”), then the Company shall pay to Parent a non-refundable fee in the amount of $147,000,000 (such non-refundable fee being the “Termination Fee”) in cash. (c) If: (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d); (ii) after the date of this Agreement and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been publicly announced or communicated and such Acquisition Proposal shall not have been publicly withdrawn at least 10 business days prior to the Company Stockholders’ Meeting; and (iii) within 12 months after the date of any such termination, an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is consummated or a definitive agreement providing for an Acquisition Transaction (whether or not relating to such Acquisition Proposal) is executed (provided that for purposes of this clause (iii) the references to “15%” and “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “40%”), then the Company shall pay to Parent the Termination Fee in cash. (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e),~~ 8.1(e) or ~~if this Agreement is terminated~~ by ~~Parent or~~ the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~8.1(h), then the Company shall pay to Parent the Termination Fee ~~and the Expense Payment~~ in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, thenby: (i) ~~such party shall reimburse~~ Parent or the Company pursuant to Section 8.1(b) due to a failure to satisfy the conditions set forth in Section 6.5, 6.6, 7.5 or 7.6 (in the case of 6.6 and 7.6 due to a temporary restraining order, preliminary or permanent injunction or other ~~party for all costs and expenses (including fees and disbursements~~ Order issued by any court of ~~counsel) incurred in connection with the collection of such overdue amount and the enforcement by the~~ competent jurisdiction or other ~~party of its rights~~ Governmental Body under ~~this Section 9.3~~any Antitrust Laws); and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.or

Appears in 1 contract

Samples: Merger Agreement (Applied Materials Inc /De)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Arrangement is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with: (i) the filing, printing and mailing of the Proxy Statement; and (ii) the filing by the parties hereto of the premerger notification and report forms relating to the Arrangement under the HSR Act and other applicable Antitrust laws and the filing of any notice or other document required under any applicable foreign Antitrust Law. (b) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment;~~ (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e) or 9.1(i), or (ii) if this Agreement is terminated by the Company pursuant to Section 9.1(e) or (h), then Parent shall pay to the Company a nonrefundable fee in the aggregate amount of $1,500,000 in cash and shall reimburse the Company for up to an aggregate $1,000,000 of actual out of pocket legal, accounting and investment advisory fees paid or payable in connection with the Contemplated Transactions. In the case of a termination by the Parent pursuant to Section 9.1(i), such payment shall be made as provided in Section 6.5(c) and in the case of a termination by Parent or the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event, then~~ 9.1(e) or by the Company pursuant to Section 9.1(h), such payment shall ~~pay to Parent the Fee and the Expense Payment in cash~~be made within 24 hours of such termination. (ec) (i) If this Agreement is terminated by the Company pursuant to Section 9.1(d) or Section 9.1(j) or (ii) if this Agreement is terminated by the Parent pursuant to Section ~~9.1(f~~9.1(d), then the Company shall pay to Parent a nonrefundable fee in the ~~Expense Payment. (f) Unless otherwise provided~~ aggregate amount of $3,000,000 in ~~this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid~~ cash and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse ~~the other party~~ Parent for ~~all costs~~ up to an aggregate $1,000,000 of actual out of pocket legal, accounting and ~~expenses (including~~ investment advisory fees ~~and disbursements of counsel) incurred~~ paid or payable in connection with the ~~collection~~ Contemplated Transactions. In the case of a termination by the Company pursuant to Section 9.1(j), such payment shall be made as provided in Section 6.1(f) and in the case of a termination by Parent or the Company pursuant to Section 9.1(d), such payment shall be made within 24 hours of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paidtermination.

Appears in 1 contract

Samples: Acquisition Agreement (Veraz Networks, Inc.)

Expenses; Termination Fees. (al) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement ~~and~~ or any of the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such fees and expenses, whether or not the Merger is consummated. (bm) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If If: (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~8.1(d), ; (ii) at or prior to the time of the termination of this ~~Agreement~~ Agreement, an Acquisition Proposal with respect to the Company shall have been ~~disclosed, announced, commenced, submitted~~ publicly disclosed or ~~made,~~ made and such Acquisition Proposal shall not have been publicly withdrawn at least two (2) Business Days prior to the Company Stockholders Meeting; and (iii) ~~on or prior to 12~~ within twelve (12) months after the date of any such termination, ~~either~~ an Acquisition Transaction (whether or not relating to such Acquisition Proposal) with respect to the Company is consummated or a definitive agreement ~~relating to~~ providing for an Acquisition Transaction (whether or not relating to such Acquisition Proposal) with respect to the Company is ~~entered into~~executed, then the Company shall pay to Parent ~~the Expense Payment and~~ a non-refundable fee in the amount of $~~600,000~~ 4,250,000 (such non-refundable fee being referred to as the “Company Termination Fee”~~) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement~~; provided, however, that, ~~solely~~ for purposes of clause (iii) of this Section ~~9.3(b~~8.3(c), all references to “1520%” in the definition of “Acquisition Transaction” shall be deemed to ~~refer instead~~ be references to “50%.” ~~(d) If this Agreement is terminated by Parent~~ ; provided, further, that if the Company shall have actually paid the Company Expense Reimbursement Payment pursuant to Section ~~9.1(e~~8.3(d), ~~or if~~ then only the incremental amount between the Company Expense Reimbursement Payment and the Company Termination Fee shall be payable. (n) If: (i) this Agreement is terminated by Parent or the Company pursuant to ~~any other provision~~ Section 8.1(e); (ii) at or prior to the time of ~~Section 9.1~~ the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly disclosed or made and such Acquisition Proposal shall not have been publicly withdrawn at ~~any time~~ least two (2) Business Days prior to the Parent Stockholders Meeting; and (iii) within twelve (12) months after the ~~occurrence~~ date of any such termination, an Acquisition Transaction (whether or not relating to such Acquisition Proposal) with respect to Parent is consummated or a ~~Triggering Event~~definitive agreement providing for an Acquisition Transaction (whether or not relating to such Acquisition Proposal) with respect to Parent is executed, then Parent shall pay to the Company a non-refundable fee in the amount of $4,250,000 (such non-refundable fee being referred to as the “Parent Termination Fee”) in cash; provided, however, that, for purposes of clause (iii) of this Section 8.3(d), all references to “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “50%”; provided, further, that, if Parent shall have actually paid the Parent Expense Reimbursement Payment pursuant to Section 8.3(e), then only the incremental amount between the Parent Expense Reimbursement Payment and the Parent Termination Fee shall be payable. (o) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), then the Company shall pay to Parent all of the ~~Fee~~ reasonable and documented out-of-pocket expenses of Parent incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement, in an amount not to exceed $1,210,000 the “Company Expense ~~Payment in cash~~Reimbursement Payment”). (ep) If this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(f~~8.1(e), then Parent shall pay to the Company all of the reasonable and documented out-of-pocket expenses of the Company incurred by the Company or any Acquired Company in US-LEGAL-11446530/6 174293-0017 3089529.v7 connection with this Agreement and the transactions contemplated by this Agreement, in an amount not to exceed $1,210,000 the “Parent Expense Reimbursement Payment”). (q) If this Agreement is terminated: (i) by Parent pursuant to Section 8.1(f); (ii) by the Company pursuant to any other provision of Section 8.1 at any time at which Parent has the right to terminate this Agreement pursuant to Section 8.1(f); or (iii) by the Company pursuant to Section 8.1(j), then the Company shall pay to Parent the ~~Expense Payment~~Company Termination Fee in cash. (fr) ~~Unless otherwise provided~~ If this Agreement is terminated: (i) by the Company pursuant to Section 8.1(g); (ii) by Parent pursuant to any other provision of Section 8.1 at any time at which the Company has the right to terminate this Agreement pursuant to Section 8.1(g); or (iii) by Parent pursuant to Section 8.1(k), then Parent shall pay to the Company the Parent Termination Fee in ~~this Section 9.3, any fee~~ cash. (s) Any Company Termination Fee required to be paid to Parent pursuant to ~~this~~ Section ~~9.3~~ 8.3(b) shall be paid ~~and~~ by the Company contemporaneously with the earlier to occur of the consummation of, or entry into of a definitive agreement relating to, the Acquisition Transaction contemplated by Section 8.3(b). Any Company Expense Reimbursement Payment required to be paid to Parent pursuant to Section 8.3(d) shall be paid by the Company within three (3) Business Days of the submission of the request therefor by Parent together with supporting documentation. Any Company Termination Fee required to be paid to Parent pursuant to Section 8.3(f) shall be paid or made by the Company (A) in the case of a termination of this Agreement by the Company, at or prior to the time of such termination or (B) in the case of a termination of this Agreement by Parent, within two ~~business days~~ (2) Business Days after such termination.. Any Parent Termination Fee required to be paid to Parent pursuant to Section 8.3(c) shall be paid by Parent contemporaneously with the earlier to occur of the consummation of, or entry into of a definitive agreement relating to, the Acquisition Transaction contemplated by Section 8.3(c). Any Parent Expense Reimbursement Payment required to be paid to the Company pursuant to Section 8.3(e) shall be paid by Parent within three (3) Business Days of the submission of the request therefor by the Company together with supporting documentation. Any Parent Termination Fee required to be paid to Parent pursuant to Section 8.3(g) shall be paid or made by Parent (A) in the case of a termination of this Agreement by Parent, at or prior to the time of such termination or (B) in the case of a termination of this Agreement by the Company, within two (2) Business Days after such termination (gt) Each ~~party acknowledges~~ of Parent and ~~agrees~~ the Company acknowledge and agree that (i) the covenants and obligations contained in this Section ~~9.3~~ 8.3 are an integral part of the Contemplated Transactions, and that, without these covenants and obligations, ~~such party~~ the other Party would not have entered into this ~~Agreement~~Agreement and (ii) each of the Parent Expense Reimbursement Payment, the Company Expense Reimbursement Payment, Parent Termination Fee and the Company Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate (A) Parent and Merger Sub or (B) the Company, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. (hu) If ~~either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3~~8.3, ~~then:~~ then (i) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such ~~party~~ overdue amount and the enforcement by Parent of its rights under this Section 8.3 and (ii) the 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 US-LEGAL-11446530/6 174293-0017 3089529.v7 overdue amount is actually paid to Parent in full) at a rate per annum equal to the sum of the Prime Rate in effect on the date such overdue amount was originally required to be paid plus two hundred (200) basis points. If Parent fails to pay when due any amount payable under this Section 8.3, then (x) Parent shall reimburse the ~~other party~~ Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the ~~other party~~ Company of its rights under this Section ~~9.3;~~ 8.3 and (iiy) ~~the first party~~ Parent shall pay to the ~~other party~~ Company 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 the ~~other party~~ Company in full) at a rate per annum ~~500 basis points over~~ equal to the ~~“prime rate” (as announced by Bank~~ sum of ~~America, N.A. or any successor thereto)~~ the Prime Rate in effect on the date such overdue amount was originally required to be ~~paid~~paid plus two hundred (200) basis points. (v) Any fee or other amount payable pursuant to this Section 8.3 shall be paid free and clear of all deductions and withholdings. In the event that any deduction or withholding is required by any Applicable Law, the party responsible for paying an amount pursuant to this Section 8.3 shall pay to the other Party such additional amount as shall be required to ensure that the net amount received by the other Party shall be equal to the full amount that would have been received by the other Party had no such deduction or withholding been required to be made, and paying Party shall indemnify the other Party against, and reimburse the other Party for the full amount of, any such withholding or deduction, and any interest, additions to tax and penalties thereon. (w) The Parties agree and understand that (i) (A) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion or the Company Expense Reimbursement Payment on more than one occasion, in each case under any circumstances, and (B) in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion or the Parent Expense Reimbursement Payment on more than one occasion, in each case under any circumstances, and (ii) except in the case of fraud or willful breach by the other Party of any covenant or agreement set forth in this Agreement, (A) in no event shall Parent be entitled, pursuant to this Section 8.3, to receive an amount greater than the Company Termination Fee and Company Expense Reimbursement Payment, as applicable (subject to the understanding that the Company Expense Reimbursement Payment is set off against the Company Termination Fee when the payment of the Company Termination Fee follows the payment of the Company Expense Reimbursement Payment under Section 8.3(b)), and any applicable additional amounts pursuant to Sections 8.3(i) and 8.3(j) (such additional amounts, collectively, the “Parent Additional Amounts”), and (B) in no event shall the Company be entitled, pursuant to this Section 8.3, to receive an amount greater than the Parent Termination Fee and Parent Expense Reimbursement Payment, as applicable (subject to the understanding that the Parent Expense Reimbursement Payment is set off against the Parent Termination Fee when the payment of the Parent Termination Fee follows the payment of the Parent Expense Reimbursement Payment under Section 8.3(b)), and any applicable additional amounts pursuant to Sections 8.3(i) and 8.3(j) (such additional amounts, collectively, the “Company Additional Amounts”). Notwithstanding anything to the contrary in this Agreement, except in the case of fraud or willful breach by the other Party of any covenant or agreement set forth in this Agreement, if Parent receives a Company Termination Fee or Company Expense Reimbursement Payment and any applicable Parent Additional Amounts from the Company pursuant to this Section 8.3, or if the Company receives the Parent Termination Payment or Parent Expense Reimbursement Payment and any applicable Company Additional Amounts from Parent pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of the receiving Party against the paying Party and its Subsidiaries and their respective former, current or future partners, equityholders, managers, members, Affiliates and Representatives, and none of the paying party, any of its Subsidiaries or any of their respective former, current or future partners, equityholders, managers, members, Affiliates or Representatives shall have any US-LEGAL-11446530/6 174293-0017 3089529.v7 further liability or obligation, in each case relating to or arising out of this Agreement or the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (Shift Technologies, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If The Company agrees to pay Parent (or its designees) an amount equal to $1,000,000, inclusive of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger (the “Termination Fee”) if this Agreement is ~~terminated~~ terminated: (i) by Parent pursuant to Section ~~9.1(b~~7.1(e), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~7.1(b) or by Parent pursuant to Section ~~9.1(d)~~7.1(f) and, in either case, (iix) at on or ~~prior to~~ before the ~~time~~ date of ~~the~~ any such termination ~~of this Agreement~~ an Acquisition Proposal shall have been announced, disclosed, ~~announced, commenced, submitted~~ or ~~made~~otherwise communicated to the Company Board, and (~~iii~~y) on a definitive agreement is entered into by the Company with respect to an Acquisition Transaction or ~~prior to 12 months after the date of such termination, either~~ an Acquisition Transaction is consummated within 12 months of such termination of the Agreement; (iii) by Parent or ~~a definitive agreement relating to an Acquisition Transaction is entered into, then~~ the Company ~~shall pay~~ pursuant to ~~Parent the Expense Payment~~ Section 7.1(d) and ~~a non-refundable fee in the amount of $600,000~~ (~~the “Fee”~~x) ~~in cash~~ on or ~~prior to the earlier of~~ before the date of ~~consummation~~ the Company Stockholders Meeting by the Required Stockholder Vote an Acquisition Proposal shall have been announced, disclosed, or otherwise communicated to the Company Board, and (y) a definitive Agreement is entered into by the Company with respect to such Acquisition Proposal within 12 months of such ~~Acquisition Transaction or~~ termination of the ~~date of execution of such definitive agreement~~Agreement; ~~provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.”~~or (div) by Company pursuant to Section 7.1(i); (c) If this Agreement is terminated by ~~Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ the Company pursuant to ~~any~~ Section 7.1(g), Parent agrees to pay Company an amount equal to $2,000,000, inclusive of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of the Company in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger (the “Reverse Termination Fee”) if at the Closing all conditions set forth in Article 5 have been satisfied (other ~~provision~~ than those conditions to be satisfied as of the Closing Date). (d) Any Termination Fee or Reverse Termination Fee required to be paid (i) pursuant to Section ~~9.1 at any time~~ 7.3(b)(i) shall be paid within two (2) Business Days after termination by Parent or (ii) pursuant to Sections 7.3(b)(ii), (iii) or 7.3(c) shall be paid within two Business Days after the ~~occurrence~~ event giving rise to such payment. In no event shall payment of more than one Termination Fee or Reverse Termination Fee be made by any Party. Notwithstanding anything to the contrary contained in this Agreement: (1) Parent’s right to receive the Termination Fee pursuant to Section 7.3(b) shall be Parent’s sole and exclusive remedy against the Company, any of its Subsidiaries, or any of their respective Affiliates, stockholders, directors, officers, employees, agents or Representatives for any loss, claim, damage, liability or expense suffered as a ~~Triggering Event, then~~ result of the failure of any of the Contemplated Transactions to be consummated in circumstances giving rise to the obligation of the Company to pay the Termination Fee; (2) Company’s right to receive the Reverse Termination Fee pursuant to Section 7.3(c) shall be Company’s sole and exclusive remedy against Parent, any of its Subsidiaries, or any of their respective Affiliates, stockholders, directors, officers, employees, agents or Representatives for any loss, claim, damage, liability or expense (3) upon payment of the Termination Fee or Reverse Termination Fee pursuant to this Section 7.3(d), none of the Company or Parent, or any of their Subsidiaries, or their respective Affiliates, stockholders, directors, officers, employees, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions (other than any obligation to pay any amounts due pursuant to ~~Parent the Fee and the Expense Payment in cash~~Section 7.3(e)). (e) If ~~this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ the Company ~~shall pay to~~ or Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section ~~9.3~~7.3, ~~then:~~ then (i) ~~such party~~ the Company or Parent, as the case may be, shall reimburse the other ~~party~~ Party for all costs and expenses (including fees ~~and disbursements~~ of counsel) incurred in connection with the ~~collection of such overdue amount and the~~ enforcement by the ~~other party~~ Company or Parent, as the case may be, of its rights under this Section ~~9.3;~~ 7.3, and (ii) the ~~first party~~ Company or Parent, as the case may be, shall pay to the other ~~party~~ Party 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 ~~the other party~~ such Party in full) at a rate per annum ~~500 basis points~~ equal to three percent (3%) over the “prime rate” (as ~~announced by Bank of America, N.A. or any successor thereto~~published in The Wall Street Journal) in effect on the date such overdue amount was originally required to be paid. (f) The Parties acknowledge 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 Parties would not enter into this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Tii Network Technologies, Inc.)

Appears in 1 contract

Samples: Merger Agreement (Prime Response Inc/De)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing. (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $2,500,000 (the “Company Termination Fee”) within ten Business Days of such entry into a definitive agreement or consummation of such Subsequent Transaction. Table of Contents (c) If this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~9.1(j), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company ~~$400,000~~within ten Business Days of such termination the Company Termination Fee. (cd) If (i) this Agreement is terminated by Parent ~~or the Company~~ pursuant to Section ~~9.1(b) or Section 9.1(d~~9.1(g), (ii) at an Acquisition Proposal with respect to the Company shall have been publicly announced or disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement but prior to ~~the time of~~ the termination of this Agreement ~~an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made,~~ and (iii) ~~on or prior to 12~~ within twelve months after the date of such termination, ~~either an~~ the Company consummates a Subsequent Transaction in respect of the Acquisition ~~Transaction is consummated or a definitive agreement relating~~ Proposal referred to ~~an Acquisition Transaction is entered into~~in clause (ii), then the Company shall pay to Parent ~~the Expense Payment and a non-refundable fee in the~~ an amount of equal to $~~600,000~~ 2,500,000 (the “Parent Termination Fee”) ~~in cash on~~ within ten Business Days of such entry into a definitive agreement or ~~prior to the earlier of the date of~~ consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Subsequent Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(f~~9.1(k), ~~then~~ the Company shall pay to Parent within ten Business Days of such termination the ~~Expense Payment~~Parent Termination Fee. (f) ~~Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to~~ Any Company Termination Fee or Parent Termination Fee due under this Section 9.3 shall be paid ~~and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part~~ by wire transfer of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h)~~ same day funds. If ~~either party~~ a Party fails to pay when due any amount payable by it under this Section 9.3, ~~then:~~ then such Party shall (i) ~~such party shall~~ reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ such Party of its rights under this Section 9.3; , and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the ~~other party~~ Company in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America, N.A.~~ published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (g) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. (h) The Parties agree that, subject to Section 9.2, payment of the Parent Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement, it being understood that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and following payment of the Parent Termination Fee (x) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the Table of Contents termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. (i) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Appears in 1 contract

Samples: Merger Agreement

Expenses; Termination Fees. (a) ~~Except as set forth in this Section 9.2, all~~ All fees and expenses incurred in connection with the preparation, negotiation and performance of this Agreement and the ~~Transactions~~ consummation of the transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Transaction is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with (A) the filing, printing and mailing of the Registration Statement and the Prospectus/Proxy Statement and any amendments or supplements thereto and (B) the filing by the parties hereto of the premerger notification and report forms relating to the Transaction under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation. (b) If this Agreement is terminated: (i)(A) by Parent or the Company pursuant to Section 9.01(b) and (B) at or prior to the date of such termination an Acquisition Proposal shall have been publicly announced or has become publicly known and has not been withdrawn, and (C) within six months following the termination of this Agreement pursuant to Section 9.01(b), the Company enters into a definitive agreement to effect an Acquisition with the Person or Persons who made such Acquisition Proposal, which is subsequently consummated, then the Company shall pay to Parent, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within two (2) Business Days after consummation of such Acquisition, a nonrefundable fee in the amount equal to $5,200,000 (collectively, the “Company Termination Fee”), plus the unpaid portion of any amounts payable by the Company to Parent pursuant to Section 9.03(a). (ii)(A) by Parent or the Company pursuant to Section 9.01(d) and (B) at or prior to the date of the Company Stockholder Meeting an Acquisition Proposal shall have been publicly announced or has become publicly known and has not been withdrawn, and (C) within twelve months following the termination of this Agreement pursuant to Section 9.01(d), the Company enters into a definitive agreement to effect an Acquisition, which is subsequently consummated, then the Company shall pay to Parent, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within two (2) Business Days after consummation of such Acquisition, a nonrefundable fee in the amount equal to Company Termination Fee, plus the unpaid portion of any amounts payable by the Company to Parent pursuant to Section 9.03(a). (iii) by Parent pursuant to Section 9.01(e) or by the Company pursuant to Section 9.01(f), then the Company shall pay to Parent, in the manner and at the time specified in Section 9.03(c) or Section 9.01(d), as applicable, a nonrefundable fee in the amount equal to the Company Termination Fee, plus the unpaid portion of any amounts payable by the Company to Parent pursuant to Section 9.03(a). (c) If this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~9.01(e), then any Company Termination Fee required to be made pursuant to Section 9.03(b)(iii) shall be paid by the Company ~~shall pay~~ no later than two Business Days after such termination by wire transfer of immediately available funds to ~~Parent the Expense Payment;~~an account designated by Parent. (id) ~~provided~~If this Agreement is terminated by the Company pursuant to Section 9.01(f), ~~however~~then any Company Termination Fee required to be made pursuant to Section 9.03(b)(iii) shall be paid, if by the ~~only if as~~ Company at or prior to the time of ~~the End Date~~ such termination by wire transfer of immediately available funds to an account designated by Parent. (e) If this Agreement is terminated pursuant to Section 9.01(b)(i), and on such date all of the conditions to ~~the~~ Closing ~~in ARTICLE 7 have been satisfied or waived except those~~ set forth in Sections ~~7.7~~ 8.01 or ~~7.16, the Company shall not be required to pay to Parent the Expense Payment;~~ 8.02 (~~ii) provided, further, however, if (i) as of the End Date all of~~ other than the conditions ~~to the Closing~~ set forth in ~~ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of~~ Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed8.01(b), Section 8.01(c) (iias it relates to applicable Antitrust Laws) ~~the claim(s~~or Section 8.02(e) ~~with respect~~ (as it relates to ~~such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii~~applicable Antitrust Laws)) ~~Parent terminates this Agreement~~were reasonably capable of being satisfied, ~~the Company shall not pay to Parent the Expense Payment and~~ then Parent shall pay to the Company $~~400,000~~5,000,000 at or prior to the time of such termination by wire transfer of immediately available funds to an account designated by the Company. (cf) If ~~(i)~~ this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~9.01(b)(ii), and on such date all of the conditions to Closing set forth in Article 8 have been satisfied or waived, other than (A) conditions that by their nature are only to be satisfied as of the Closing (and could reasonably be expected to be satisfied if the Closing were to take place) and (B) any of the conditions set forth in Section 8.01(b), Section 8.01(c) (as it relates to applicable Antitrust Laws) or Section ~~9.1(d~~8.02(e) (as it relates to applicable Antitrust Laws), ~~(ii)~~ then Parent shall pay to the Company $10,000,000 at or prior to the time ~~of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made~~of, and as a condition to, such termination (~~iii~~in connection with a termination by Parent) on or ~~prior to 12 months~~ no later than two Business Days after such termination (in connection with a termination by the ~~date~~ Company) by wire transfer of ~~such termination, either an Acquisition Transaction is consummated or a definitive agreement relating~~ immediately available funds to an ~~Acquisition Transaction is entered into, then~~ account designated by the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such terminationCompany. (g) Each ~~party~~ of the Company, Parent and Merger Sub acknowledges ~~and agrees~~ that (i) the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 9.03 are an integral part of the ~~Transactions~~Transaction, (ii) without these agreements, Parent, Merger Sub, Second Merger Sub and the Company would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.03 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the party receiving such amount (including Merger Sub and Second Merger Sub with respect to a payment to Parent), in the circumstances in which such amount is payable, for any and all losses or damages suffered or incurred by the party receiving such amount (including Merger Sub and Second Merger Sub with respect to a payment to Parent) or any other Affiliate of the party receiving such amount in connection with the matter forming the basis for such termination, and ~~that~~the party receiving such amount (including Merger Sub and Second Merger Sub with respect to payments to Parent) shall not be entitled to bring or maintain any other claim, ~~without these covenants and obligations,~~ action or proceeding against any party to this Agreement or any other Person arising out of such ~~party would not have entered into this Agreement~~matters. (h) If either party fails to pay when due any amount payable under this Section ~~9.3~~9.03, ~~then:~~ then (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section ~~9.3;~~ 9.03, and (ii) ~~the first~~ such party shall pay to the other party 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 ~~the other party~~ Parent in full) at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a ~~rate per annum 500~~ daily basis ~~points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on~~ from the date such ~~overdue amount was originally~~ amounts were required to be ~~paid~~paid until the date of actual payment. (i) The parties hereto acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. (i) For purposes of this Section 9.03, “Acquisition” shall have the same meaning as an “Acquisition Proposal” except that all references therein to 15% shall be references to 50.1%.

Appears in 1 contract

Samples: Merger Agreement (Calix, Inc)

Expenses; Termination Fees. (a) Except as ~~set forth~~ otherwise expressly provided in this ~~Section 9.2~~Agreement, all ~~fees~~ costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be ~~paid~~ borne by the party incurring such ~~fees and expenses, whether~~ cost or ~~not the Merger is consummated~~expense. (b) If In the event that this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~6.1(c)(i) or by the Company pursuant to Section 6.1(d)(iii), then the Company shall pay to Parent the ~~Expense Payment;~~ Company Termination Fee. The Company Termination Fee payable pursuant to this Section 6.3(b) shall be paid no later than the second (i2nd) ~~provided, however, if the only if as of the End Date all of the conditions~~ Business Day following termination pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii~~Section 6.1(c)(i) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened and concurrently (or ~~any other conditions~~ the next Business Day if payment is not feasible on the date of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(stermination) with ~~respect~~ any termination pursuant to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000Section 6.1(d)(iii). (c) If (i) after the Agreement Date but prior to the termination of this Agreement in accordance with its terms, the Company shall have received an Acquisition Proposal with respect to an Acquisition Transaction that becomes publicly known and is not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section ~~9.1(b~~6.1(b)(i) or Section ~~9.1(d~~6.1(b)(iii) (unless the Company would have been entitled to terminate this Agreement pursuant to Section 6.1(d)(i) or Section 6.1(d)(ii) but for such termination pursuant to Section 6.1(b)(i) or Section 6.1(b)(iii), ) or (iiB) ~~at or prior~~ by Parent pursuant to Section 6.1(c)(ii) (unless the Company Termination Fee provided in Section 6.3(b) has already been paid pursuant to the ~~time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made~~terms thereof), and (iii) ~~on or prior to 12~~ within nine (9) months after ~~the date of~~ such termination, ~~either~~ the Company (x) enters into a definitive written agreement for any Acquisition Transaction which, for the avoidance of doubt, need not be with the party to such Acquisition Proposal referenced in Section 6.3(c)(i) or (y) consummates an Acquisition ~~Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into~~Transaction, then the Company shall pay to Parent the ~~Expense Payment and a non~~Company Termination Fee by wire transfer of same-~~refundable fee in the amount of $600,000 (the “Fee”) in cash~~ day funds on ~~or prior to~~ the earlier of the date of such definitive written agreement is signed or the consummation of such Acquisition ~~Transaction or the date of execution of such definitive agreement~~Transaction; ~~provided, however, that,~~ provided that solely for purposes of this Section ~~9.3(b~~6.3(c), all references to “15%” % in the definition of “Acquisition Transaction” shall be deemed to ~~refer instead~~ be references to “50%.” (d) If In the event that this Agreement is terminated by ~~Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~6.1(d)(i) or Section 6.1(d)(ii), then ~~the Company~~ Parent shall pay to ~~Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ the Company ~~shall pay to~~ the Parent ~~the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid~~ Termination Fee. The Parent Termination Fee payable pursuant to this Section ~~9.3~~ 6.3(d) shall be paid ~~and made within two business days after such termination~~no later than the second (2nd) Business Day following termination pursuant to Section 6.1(d)(i) or Section 6.1(d)(ii) (it being understood that in no event shall the Parent Termination Fee be payable on more than one occasion). (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 1 contract

Samples: Agreement and Plan of Merger (WEB.COM Group, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with (i) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto and (ii) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust or competition-related law or regulation or other Legal Requirement. (b) If this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b) or Section 8.1(f), and (i) at or prior to the time of the termination of this Agreement, a Company Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made and not publicly withdrawn and (ii) within 12 months after the date of any such termination, either (A) an Acquisition Transaction with respect to the Company (whether or not relating to such Company Acquisition Proposal) is consummated or (B) a definitive agreement contemplating an Acquisition Transaction with respect to the Company (whether or not relating to such Company Acquisition Proposal) is executed by the Company or any of its Affiliates and such Acquisition Transaction is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), then the Company shall pay to Parent, in cash at the time such Acquisition Transaction is consummated, a nonrefundable fee in the amount of $180,000,000; provided, however, that for purposes of this Section 8.3(b), all references to “15%” in the definition of Acquisition Transaction shall be deemed to be references to “50%.” (c) If this Agreement is terminated (i) by Parent or the ~~Expense Payment;~~Company pursuant to any provision of Section 8.1 (other than Section 8.1(k)) at any time during the period commencing on the occurrence of a Company Triggering Event and ending on the tenth day after the final vote by the Company’s stockholders on a proposal to adopt this Agreement at the Company Stockholders’ Meeting (including any adjournments and postponements thereof) or (ii) by the Company pursuant to Section 8.1(l), then the Company shall pay to Parent, in cash within two Business Days after such termination, a nonrefundable fee in the amount of $180,000,000. (d) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) or Section 8.1(g), and (i) at or prior to the time of the termination of this Agreement, a Parent Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made and not publicly withdrawn and (ii) within 12 months after the date of any such termination, either (A) an Acquisition Transaction with respect to Parent (whether or not relating to such Parent Acquisition Proposal) is consummated or (B) a definitive agreement contemplating an Acquisition Transaction with respect to Parent (whether or not relating to such Parent Acquisition Proposal) is executed by Parent or any of its Affiliates and such Acquisition Transaction is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), then Parent shall pay to the Company, in cash at the time such Acquisition Transaction is consummated, a nonrefundable fee in the amount of $180,000,000; provided, however, that for purposes of this Section 8.3(d), all references to “15%” in the definition of Acquisition Transaction shall be deemed to be references to “50%.” (e) If this Agreement is terminated (i) by Parent or the Company pursuant to any provision of Section 8.1 (other than Section 8.1(j)) at any time during the period commencing on the occurrence of a Parent Triggering Event and ending on the tenth day after the final vote by Parent’s shareholders on a proposal to approve the Parent Share Issuance at the Parent Shareholders’ Meeting (including any adjournments and postponements thereof) or (ii) by Parent pursuant to Section 8.1(m), then Parent shall pay to the Company, in cash within two Business Days after such termination, a nonrefundable fee in the amount of $180,000,000. (f) If: (i) ~~provided, however, if~~ both (A) this Agreement is terminated by the ~~only if as~~ Company pursuant to Section 8.1(k) on account of ~~the End Date~~ a Knowing and Intentional Breach by Parent of Parent’s obligations with respect to obtaining CFIUS Approval under Section 5.4 and (B) all of the conditions to set forth in Section 6, other than the ~~Closing in ARTICLE 7 have been satisfied or waived except those~~ conditions set forth in Sections ~~7.7 or 7.16~~6.3, 6.4, 6.5, 6.7(b), 6.7(c) and 6.8, shall have been satisfied as of the ~~Company shall not be required to pay to Parent the Expense Payment~~time of termination of this Agreement; (ii) ~~provided, further, however, if~~ both (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (iA) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(e) or and (B) all of the conditions set forth in Section ~~9.1(d~~6, other than the conditions set forth in Sections 6.3, 6.4, 6.5, 6.7(b), ~~(ii~~6.7(c) ~~at or prior to~~ and 6.8, shall have been satisfied as of the time of ~~the~~ termination of this ~~Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and~~ Agreement; or (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 both (~~the “Fee”~~A) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to ~~any~~ Section 8.1(b) and (B) all of the conditions set forth in Section 6, other ~~provision~~ than the conditions set forth in Sections 6.5, 6.7(b), 6.7(c) and 6.8, shall have been satisfied as of ~~Section 9.1 at any~~ the time of termination of this Agreement; then Parent shall, within two Business Days after the ~~occurrence~~ date of ~~a Triggering Event~~termination of this Agreement, ~~then~~ pay to the Company ~~shall pay to Parent~~ a nonrefundable fee in the ~~Fee and the Expense Payment in cash~~amount of $180,000,000. (eg) If If: (i) both (A) this Agreement is terminated by the Company pursuant to Section 8.1(k) on account of a Knowing and Intentional Breach by Parent of Parent’s obligations with respect to obtaining MOFCOM Approval under Section 5.4 and (B) all of the conditions set forth in Section 6, other than the conditions set forth in Sections 6.3, 6.4, 6.5, 6.7(b), 6.7(c) and 6.8, shall have been satisfied as of the time of termination of this Agreement; or (ii) both (A) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(f~~8.1(b) and (B) all of the conditions set forth in Section 6, other than the conditions set forth in Sections 6.5, 6.7(b), 6.7(c) and 6.8, shall have been satisfied as of the time of termination of this Agreement; then Parent shall, within two Business Days after the date of termination of this Agreement, pay to the Company ~~shall pay to Parent~~ a nonrefundable fee in the ~~Expense Payment~~amount of $50,000,000. (fh) ~~Unless otherwise provided~~ For purposes of Sections 8.1(b), 8.1(j), 8.1(k), 8.3(f) and 8.3(g), in ~~this~~ order to determine whether the condition set forth in Section ~~9.3~~6.1 has been satisfied, ~~any fee required~~ all references in Section 6.1 to ~~be paid pursuant to this Section 9.3~~ the “Closing Date” shall be ~~paid and made within two business days after such termination. (g) Each party acknowledges and agrees that~~ deemed to refer instead to the ~~covenants and obligations contained in this Section 9.3 are an integral part~~ date of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into~~ termination of this Agreement. (hi) The parties acknowledge and agree that in no event shall Parent or the Company be required to pay any nonrefundable fee under this Section 8.3 on more than one occasion, whether or not such fee may be payable under more than one provision of this Agreement at the same or at different times and upon the occurrence of different events. In the event termination fees are payable pursuant to both Section 8.3(f) and Section 8.3(g), then Parent shall be obligated only to pay a termination fee in the amount of $50,000,000 pursuant to Section 8.3(g) and shall not be or become obligated to pay any other termination fee under Section 8.3(f) or any other provision of this Agreement. Upon (i) the Company’s payment of any nonrefundable fee under this Section 8.3, the Company shall have no further liability to Parent or Merger Sub with respect to this Agreement or any of the Contemplated Transactions and (ii) Parent’s payment of any nonrefundable fee under this Section 8.3, Parent shall have no further liability to any Acquired Company with respect to this Agreement or any of the Contemplated Transactions; provided, however, that nothing in clause “(i)” or clause “(ii)” above shall release any party from any liability for fraud or any Knowing and Intentional Breach of this Agreement. If ~~either~~ any party fails to pay when due any amount payable by such party under this Section ~~9.3~~8.3, ~~then:~~ then (iA) such party shall reimburse the other party for all ~~costs~~ reasonable and documented out-of-pocket fees and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section ~~9.3;~~ 8.3 and (iiB) ~~the first~~ such party shall pay to the other party 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 the other party in full) at a rate per annum ~~500 basis points over~~ equal to the ~~“prime rate” (as announced by Bank of America, N.A. or any successor thereto)~~ Prime Rate in effect on the date such overdue amount was originally required to be ~~paid~~paid plus five percent. (j) Without limiting the rights of Parent under the Debt Commitment Letter or of Parent or any of its Subsidiaries under any Definitive Debt Financing Agreement and notwithstanding anything to the contrary contained in this Agreement, the Company agrees that none of the (i) Financing Sources or (ii) their respective Affiliates or any of such Financing Sources’ or their Affiliates’ respective former, current or future general or limited partners, shareholders, managers, members, agents, officers, directors, employees, accountants, advisors, or representatives or any of their respective successors or assigns (the Persons referred to in this clause “(ii)” being collectively referred to as the “Financing Source Related Parties”) shall have any liability or obligation to the Company, its stockholders or its Affiliates relating to this Agreement or any of the Contemplated Transactions (including the Debt Financing), whether at law, in equity, in contract, in tort or otherwise.

Appears in 1 contract

Samples: Merger Agreement (Cavium, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~10.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that: (i) Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation. (bii) If if this Agreement is terminated by ~~Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment;~~ (iA) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~10.1(d), Section 10.1(j) or Section ~~9.1(d~~10.1(k), (iiB) Parent pursuant to Section 10.1(e) or Section 10.1(g), (C) the Company pursuant to Section 10.1(f), (D) the Company after the Extended Outside Date pursuant to Section 10.1(b) (unless the Extended Outside Date means a date earlier than the six month anniversary of the Initial Expiration Date), or (E) Parent or the Company pursuant to Section 10.1(b) if, following the date of this Agreement and, in the case of this clause (E), at or prior to the time of the termination of this Agreement, an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, then the Company shall pay to Parent, subject to the limitations set forth in Section 10.3(g), an amount equal to the lesser of (x) $8,000,000 and (y) the aggregate amount of the fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees, investment banking fees, incremental overhead expenses, costs and expenses related to interest rate hedges, filing fees and printing and mailing expenses) that have been xxxx or that become payable by or on behalf of Parent in connection with the preparation, negotiation and enforcement of this Agreement and otherwise in connection with the Contemplated Transactions or its consideration of the Contemplated Transactions (the "Parent Expenses"). The Company shall deliver, within two business days following the date on which notice of termination is given, instructions to the Escrow Agent to pay any fee payable to Parent by the Company pursuant to this Section 10.3(a)(ii) through a distribution of the Expense Amount to Parent from the Expense Amount Escrow Account. The excess of the Expense Escrow Amount over the aggregate amount of the Parent Expenses shall be distributed by the Escrow Agent to the Company from the Expense Amount Escrow Account promptly following the distribution to Parent of the Parent Expenses from the Expense Amount Escrow Account pursuant to the preceding sentence. (b) In addition to any amounts payable to Parent pursuant to Section 10.3(a), and subject to the limitations set forth in Section 10.3(g), the Company shall pay to Parent an amount equal to $4,000,000 if this Agreement is terminated as follows: (i) by Parent or the Company pursuant to Section 10.1(d) if, following the date of this Agreement and at or prior to the time of the termination of this Agreement, an Acquisition Proposal (x) shall not have been disclosed, announced, commenced, submitted or made, or (y) shall have been disclosed, announced, commenced, submitted or made and the Company has rejected such Acquisition Proposal; or (ii) by Parent or the Company pursuant to Section 10.1(j). (c) In addition to any amounts payable to Parent pursuant to Section 10.3(a), the Company shall pay to Parent an amount equal to $15,000,000, but in each case, minus any amount paid to Parent pursuant to Section 10.3(b), and subject to the limitations set forth in Section 10.3(g), if this Agreement is terminated as follows: (i) by Parent pursuant to Section 10.1(e) or by the Company pursuant to Section 10.1(f); (ii) by Parent or the Company pursuant to Section 10.1(b) or pursuant to Section 10.1(d) if, following the date of this Agreement and at or prior to the time of the termination of this Agreement, an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (~~iii~~x) ~~on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then~~ the Company ~~shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier~~ has rejected such Acquisition Proposal and, within 18 months of the date of ~~consummation~~ termination of this Agreement, the Company consummates or enters into an agreement to consummate or otherwise approves, accepts or publicly announces an Acquisition Transaction with the party that made such rejected Acquisition Proposal (or any of its Affiliates), or (y) the Company shall not have rejected such Acquisition ~~Transaction~~ Proposal; (iii) by (x) the Company after the Extended Outside Date pursuant to Section 10.1(b) (unless the Extended Outside Date means a date earlier than the six month anniversary of the Initial Expiration Date), or (y) Parent or the Company pursuant to Section 10.1(j) or Section 10.1(k) if, in any such case, within 18 months of the date of ~~execution of such definitive agreement; provided, however, that, solely for purposes~~ termination of this ~~Section 9.3(b)~~Agreement, ~~all references~~ the Company consummates or enters into an agreement to ~~“15%” in the definition of “~~consummate or otherwise approves, accepts or publicly announces an Acquisition Transaction~~” shall be deemed to refer instead to “50%~~.” (d) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(e~~10.1(h) or Section 10.1(i), ~~or if~~ then the Fee Amount shall be distributed to the Company from the Fee Amount Escrow Account. If this Agreement is terminated for any reason other than by ~~Parent or~~ the Company pursuant to Section 10.1(h) or Section 10.1(i), then the Fee Amount shall be distributed to Parent from the Fee Amount Escrow Account. The Fee Amount shall secure all of Parent's payment obligations pursuant to this Section 10.3. The maximum aggregate liability of Parent under this Section 10.3, or under any other ~~provision~~ circumstances if the Merger does not occur, shall be equal to the Fee Amount. (e) Any fee payable pursuant to this Section 10.3 pursuant to a termination of this Agreement by the Company shall be paid prior to the time of, and as a condition to the effectiveness of, such termination (including, without limitation, any amount to be distributed to Parent from the Expense Amount Escrow Account pursuant to Section ~~9.1 at~~ 10.3(a)(ii)); provided, that any ~~time after~~ fee payable pursuant to Section 10.3(c)(ii) or Section 10.3(c)(iii) shall be made prior to and as a condition to the ~~occurrence~~ consummation of the applicable Acquisition Transaction. Parent shall deliver, within two business days following the date on which notice of termination is given, instructions to the Escrow Agent to pay any fee payable to the Company by Parent pursuant to this Section 10.3 through a ~~Triggering Event~~distribution of the Fee Amount to the Company from the Fee Amount Escrow Account. (f) The Company acknowledges that the agreements contained in this Section 10.3 are an integral part of the Contemplated Transactions and that, ~~then~~ without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for any fee set forth in this Section 10.3, the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the ~~Fee and~~ amount of the ~~Expense Payment~~ fee at the prime rate of interest as most recently reported in ~~cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ The Wall Street Journal as of the ~~Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee~~ date such payment was required to be ~~paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination~~made. (g) ~~Each party acknowledges and agrees that~~ The maximum aggregate amount payable by the ~~covenants and obligations contained in~~ Company to Parent pursuant to this Section ~~9.3 are an integral part~~ 10.3, or under any other circumstances if the Merger does not occur, shall not exceed $20,000,000. Notwithstanding anything to the contrary set forth herein, Parent agrees that, at any time prior to the delivery of the ~~Transactions~~Commitment Letter or the Replacement Commitment Letter to the Company, ~~and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails~~ any payment obligations of the Company to ~~pay when due any amount payable under~~ Parent pursuant to this Section ~~9.3~~10.3, ~~then: (i) such party~~ or under any other circumstances if the Merger does not occur, shall ~~reimburse~~ not exceed in the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paidaggregate $3,000,000.

Appears in 1 contract

Samples: Merger Agreement (Hammons John Q Hotels Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3 or as otherwise expressly provided in this Agreement, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the ~~Merger is~~ Mergers are consummated. , provided, however, that (bi) ~~If this Agreement is terminated~~ the Company shall pay (A) 50% of the fees incurred by Parent pursuant to Section ~~9.1(b~~7.4(a) and Section 7.4(b), ~~then the Company shall pay~~ and (B) 50% of Transfer Taxes pursuant to ~~Parent the Expense Payment; (i) provided~~Section 7.9(c), however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; and (ii) ~~provided~~Parent shall pay, ~~further, however, if~~ (iA) as 50% of the ~~End Date all of the conditions~~ fees pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b~~Section 7.4(a) of and Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed7.4(b), (iiB) the ~~claim(s) with respect to such Legal Proceeding has been timely~~ costs, fees, and ~~duly reported~~ expenses incurred in relation to the ~~carrier for~~ printing and filing with the ~~Company’s directors~~ SEC of the Registration Statement (including any financial statements and ~~officers and/or errors~~ exhibits) and ~~omissions insurance~~ any amendments or supplements thereto, (C) the fees and expenses payable to the Exchange Agent in connection with the Transactions, (D) the fees associated with the Nasdaq Listing Application, and (~~iii~~E) ~~Parent terminates this Agreement, the Company shall not pay~~ 50% of Transfer Taxes pursuant to ~~Parent the Expense Payment and Parent shall pay to the Company $400,000~~Section 7.9(c). (cb) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) ~~or Section 9.1(d~~(and the Required Parent Stockholder Approvals have not been obtained), by Parent or the Company pursuant to Section 9.1(e), or by the Company pursuant to Section 9.1(h), and (ii) at or any time after the date of this Agreement and prior to the ~~time~~ receipt of the ~~termination of this Agreement~~ Required Parent Stockholder Approvals an Acquisition Proposal with respect to Parent shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made~~otherwise communicated to the Parent Board (and shall not have been withdrawn prior to such termination), and (iii) ~~on or prior to~~ within 12 months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Parent enters into a definitive agreement ~~relating~~ with respect to ~~an Acquisition~~ a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then ~~the Company~~ Parent shall pay to ~~Parent~~ the ~~Expense Payment and~~ Company a ~~non-refundable~~ nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 3,000,000 (the “Parent Termination Fee”) ~~in cash on~~ within five Business Days after termination (or, if applicable, upon such entry into a definitive agreement for, or ~~prior to the earlier of the date of~~ consummation ~~of such Acquisition Transaction or the date of execution of such definitive agreement; provided~~of, ~~however, that, solely for purposes of this Section 9.3(b~~a Subsequent Transaction)~~, all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~.” (dc) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(e~~9.1(f) (or, at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 9.1(f)), ~~or if~~ then Parent shall pay to the Company the Parent Termination Fee within five Business Days after such termination. (d) If (i) this Agreement is terminated by Parent or the Company pursuant to ~~any other provision of~~ Section ~~9.1~~ 9.1(b) (and the Company Stockholder Approval has not been obtained), by Parent or the Company pursuant to Section 9.1(d), or by Parent pursuant to Section 9.1(i), and (ii) at any time after the ~~occurrence~~ date of this Agreement and before obtaining the Company Stockholder Approval, an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn prior to such termination), and (iii) within 12 months after the date of such termination, the Company enters into a ~~Triggering Event~~definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then the Company shall pay shall pay to Parent a nonrefundable fee in an amount equal to $3,000,000 (the ~~Fee and the Expense Payment in cash~~“Company Termination Fee”) within five Business Days after termination (or, if applicable, upon such entry into a definitive agreement for, or consummation of, a Subsequent Transaction). (e) If this Agreement is terminated by Parent pursuant to Section ~~9.1(f~~9.1(g) (or, at the time this Agreement is terminated, Parent had the right to terminate this Agreement pursuant to Section 9.1(g)), then ~~the~~ Company shall pay to Parent the ~~Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made~~ Company Termination Fee within ~~two business days~~ five Business Days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hf) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section 9.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 9.3 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (g) The Parties agree that, subject to Section 9.2, the payment of fees and expenses set forth in this Section 9.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall either Parent or the Company be required to pay the individual fees or damages payable pursuant to this Section 9.3 on more than one occasion; provided, however, that nothing in this Agreement shall limit the liability of a Party (and the payment of fees and expenses set forth in this Section 9.3 shall not be the sole and exclusive remedy in respect of such Party) in connection with fraud or willful breach. Subject to Section 9.2, following the payment of the fees and expenses set forth in this Section 9.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 9.3 are an integral part of the Transactions, (y) without these agreements, the Parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable; provided, however, that nothing in this Section 9.3(g) shall limit the rights of the Parties under Section 10.10.

Appears in 1 contract

Samples: Merger Agreement (Reneo Pharmaceuticals, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~10.03, all fees and expenses incurred in connection with the preparation, negotiation and performance of this Agreement and the ~~Transactions~~ consummation of the transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer and the Merger is are consummated. (b) If If, but only if, this Agreement is ~~terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment;~~terminated: (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (iix) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~10.01(b) or Section ~~9.1(d)~~10.01(d) and (y) (A) an Acquisition Proposal has been made to the Company or the holders of Shares after the date hereof or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal, (iiB) at such Acquisition Proposal or intention to make an Acquisition Proposal was publicly disclosed prior to the ~~time~~ date of ~~the~~ such termination ~~of this Agreement~~ and an Acquisition Proposal ~~shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after~~ remained pending as of the date of such termination, ~~either an Acquisition Transaction is consummated or~~ and (C) within twelve months of the termination of this Agreement, (1) the Company enters into a definitive agreement ~~relating to~~ for the consummation of an Acquisition ~~Transaction~~ Proposal or (2) an Acquisition Proposal is ~~entered into~~consummated, then the Company shall ~~pay~~ pay, or cause to be paid, to Parent the ~~Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier~~ Company Termination Fee within two Business Days of the ~~date of consummation~~ earliest to occur of such ~~Acquisition Transaction or the date of execution of such definitive agreement;~~ events (provided, however, ~~that, solely~~ that for purposes of this Section ~~9.3(b~~10.03(b)(i), ~~all~~ the references to “~~15%~~25% or more” in the definition of “Acquisition ~~Transaction”~~ Proposal shall be deemed to ~~refer instead~~ be references to “more than 50%.”); (dii) ~~If this Agreement is terminated~~ (x) by ~~Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ the Company pursuant to Section 10.01(b) or Section 10.01(d) and (y) the Company Board of Directors or any ~~other provision~~ committee thereof made a Change of ~~Section 9.1 at any time after the occurrence of a Triggering Event~~Board Recommendation, then the Company shall ~~pay~~ pay, or cause to be paid, to Parent the Company Termination Fee concurrently with such termination if the termination takes place on a Business Day, and on the ~~Expense Payment in cash.~~next Business Day if the termination takes place on a day other than a Business Day; (eiii) ~~If this Agreement is terminated~~ by ~~Parent~~ the Company pursuant to Section ~~9.1(f~~10.01(e), then the Company shall ~~pay~~ pay, or cause to be paid, to Parent the ~~Expense Payment.~~Company Termination Fee concurrently with such termination if the termination takes place on a Business Day, and on the next Business Day if the termination takes place on a day other than a Business Day; or (fiv) ~~Unless otherwise provided in this~~ by Parent pursuant to Section ~~9.3~~10.01(f), ~~any fee required~~ then the Company shall pay, or cause to be ~~paid pursuant~~ paid, to ~~this Section 9.3 shall be paid~~ Parent the Company Termination Fee promptly, and ~~made within~~ in any event not more than two ~~business days after~~ Business Days following such termination. (gc) Each ~~party~~ of the Company, Parent and Acquisition Sub acknowledges ~~and agrees~~ that (i) the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 10.03 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, ~~and that,~~ (ii) without these ~~covenants~~ agreements, Parent, Acquisition Sub and ~~obligations, such party~~ the Company would not ~~have entered~~ enter into this ~~Agreement~~Agreement and (iii) any amount payable pursuant to this Section 10.03 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Acquisition Sub in the circumstances in which such amount is payable. The parties hereto acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. (hd) Any amounts payable pursuant to this Section 10.03 shall be paid by wire transfer of same day funds in accordance with this Section 10.03 to an account designated by Parent, provided that such payments can be delayed until the second Business Day after the day on which Parent provides the Company with wiring instructions and such delay will not give rise to a breach of a party’s obligations under this Section 10.03. If ~~either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection~~ 10.03 or any portion of such ~~overdue amount and~~ amount, then the ~~enforcement by the other party of its rights under this Section 9.3; and (ii) the first party~~ Company shall pay ~~to the other party~~ 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 ~~the other party~~ Parent in full) at a the rate of interest per annum ~~500 basis points over~~ equal to the “~~prime rate~~Prime Rate” (as ~~announced by Bank of America, N.A. or any successor thereto) in effect~~ set forth on the date such ~~overdue~~ payment became past due in The Wall Street Journal “Money Rates” column, plus 200 basis points and, if in order to obtain such payment, Parent or Acquisition Sub commences a suit that results in a judgment against the Company for any amount ~~was originally required~~ payable under this Section 10.03 or any portion of such amount, the Company shall pay to Parent and Acquisition Sub their reasonable costs and expenses (including reasonable attorneys’ fees) in connection with such suit. (e) Notwithstanding anything to the contrary in this Agreement but subject to Section 10.02, in the event that this Agreement is terminated pursuant to Section 10.01(b), Section 10.01(d), Section 10.01(e) or Section 10.01(f), the Company Termination Fee is payable pursuant to this Section 10.03 and the Company has paid the Company Termination Fee to Parent in accordance with this Section 10.03, Parent’s receipt of the Company Termination Fee from the Company pursuant to Section 10.03(b)(i)—(iv), as the case may be, and the payment of any amounts due pursuant to Section 10.03(d) shall be the sole and exclusive remedy of Parent and Acquisition Sub against (i) the Company and (ii) any of the Company’s former, current and future Affiliates, assignees, stockholders, controlling persons, directors, officers, employees, agents, attorneys and other Representatives (the Persons described in clauses (i) and (ii), collectively, the “Company Parties”) for any losses or damages arising from or relating to this Agreement, any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Transactions to be ~~paid~~consummated, and none of the Company Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided, however, that the foregoing shall not impair the rights of Parent to obtain injunctive relief pursuant to Section 11.02 prior to any termination of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Priceline Group Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees for the filing of any notice or other document under any applicable antitrust law or regulation, including the filing with the United States Department of Justice and Federal Trade Commission pursuant to the HSR Act. (b) If this Agreement is terminated (i) by Parent or Acquisition Co. pursuant to Section ~~9.1(b~~8.1(f), or (ii) by the Company pursuant to Section 8.1(g); then the Company shall pay to Parent substantially concurrently with such termination, in the case of a termination by the Company, or within two (2) Business Days thereafter in the case of a termination by Parent, the Termination Fee. (c) In the event that this Agreement is terminated pursuant to Section 8.1(d) by reason of a breach by the Company of any representation, warranty or covenant of the Company contained in this Agreement that the Company shall have failed to cure in accordance with the notice and cure provisions of Section 8.1(d), the Company shall promptly reimburse Parent for its and Acquisition's reasonable out-of-pocket fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby. In the event that (i) this Agreement is terminated pursuant to Section 8.1(d) by reason of a breach by the Company of any representation, warranty or covenant of the Company contained in this Agreement that the Company shall have failed to cure in accordance with the notice and cure provisions of Section 8.1(d), (ii) prior to such termination an Alternative Transaction Proposal shall have been publicly disclosed or otherwise communicated to the Company or the Company's board of directors and not withdrawn, and (iii) within six (6) months after such termination, the Company consummates a transaction contemplated by any Alternative Transaction Proposal, then the Company shall pay to Parent the ~~Expense Payment;~~Termination Fee (less any amount previously paid pursuant to this Section 8.3(c)) on the date no later than two (2) Business Days after the consummation of a transaction that constitutes an Alternative Transaction Proposal; provided, however that in no event shall a transaction engaged in by the Company during such six month period obligate the Company to pay the Termination Fee if (x) the Company's shareholders constitute at least sixty percent (60%) of the equity holders of the surviving entity in such transaction and (y) such transaction was not the Alternative Transaction Proposal publicly disclosed or otherwise communicated to the Board of Directors prior to the termination of this Agreement. For purposes of the immediately preceding sentence, the term "Alternative Transaction Proposal" shall have the meaning assigned to such term in Section 5.3 except that the references to "ten percent (10%)" therein shall be deemed to be references to "a majority." (id) ~~provided, however, if~~ In the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) event that this Agreement is terminated pursuant to Section 8.1(e) by reason of a breach by Parent or Acquisition Co. of any representation, warranty or covenant of Parent or Acquisition Co. contained in this Agreement that Parent or Acquisition shall have failed to cure in accordance with the ~~Company pursuant to~~ notice and cure provisions of Section ~~9.1(b) or Section 9.1(d~~8.1(e), ~~(ii) at or prior to the time of the termination of~~ Parent shall promptly reimburse Company for Company's reasonable out-of-pocket fees, costs and expenses incurred in connection with this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the ~~Expense Payment in cash~~transactions contemplated hereby. (e) If In the event this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(f), then~~ 8.1(h)(ii) a fee in immediately available United States Dollars in the amount of three million three hundred and seventythree thousand dollars ($3,373,000.00) shall be paid by the Parent to the Company ~~shall pay to Parent the Expense Payment~~within two (2) Business Days of termination. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part For purposes of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into~~ this Agreement, "Termination Fee" shall mean a fee in immediately available United States Dollars equal to three million three hundred and seventythree thousand dollars ($3,373,000.00). (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 1 contract

Samples: Merger Agreement (Portec Rail Products Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Offer, the Merger and the other Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer and Merger is are consummated. For the avoidance of doubt, (i) Parent shall pay all filing fees payable for filings required or otherwise made pursuant to the HSR Act or any other applicable Antitrust Laws, and (ii) the Company shall not be required to pay any fees or other payments to any Governmental Entity in connection with any filings under the HSR Act or such other filings as may be required under applicable Antitrust Laws in connection with the Merger or the other Transactions. (b) If If: (i) (A) this Agreement is validly terminated by Parent or the Company pursuant to Section 8.1(b) or Section 8.1(d), (B) following the date hereof and prior to the time of the termination of this Agreement, an Acquisition Proposal shall have been publicly announced (and such Acquisition Proposal shall not have been withdrawn prior to the time of the termination of this Agreement) and (C) the Company consummates an Acquisition Proposal (with all references to 20% in the definition of Acquisition Proposal being treated as 50% for purposes of this clause (i)) within nine (9) months after such termination or the Company enters into a definitive agreement within nine (9) months after such termination to effect an Acquisition Proposal, which Acquisition Proposal is subsequently consummated; (ii) this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~8.1(e); or (iii) this Agreement is terminated by the Company pursuant to Section 8.1(f), then in the case of each of clauses (i) through (iii), the Company shall pay or cause to ~~Parent~~ be paid to Parent, in cash at the ~~Expense Payment;~~ time specified in the next sentence, a termination fee in the amount of $16.25 million (the “Termination Fee”). Any Termination Fee shall be paid: (x) in the case of clause (i) ~~provided, however, if the only if as~~ of the ~~End Date all~~ preceding sentence of this Section 8.3(b), within two (2) Business Days after the consummation of the ~~conditions to~~ transactions contemplated by such Acquisition Proposal, (y) in the ~~Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment;~~ case of clause (ii) ~~provided, further, however, if (i) as~~ of the ~~End Date all~~ preceding sentence of this Section 8.2(b), within two (2) Business Days following termination of this Agreement and (z) in the case of clause (iii) of the ~~conditions~~ preceding sentence of this Section 8.3(b), substantially concurrently with a termination of this Agreement under Section 8.1(f) (or no later than on the next Business Day if such termination occurs on a day that is not a Business Day). Any Termination Fee due under this Section 8.3(b) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent. For the ~~Closing~~ avoidance of doubt, the Termination Fee shall be payable only once and not in ~~ARTICLE 7 have been satisfied~~ duplication even though the Termination Fee may be payable under one or ~~waived except there is a Legal Proceeding described in clause (b)~~ more provisions hereof. In the event that Parent shall receive full payment of ~~Section 7.8 pending~~ the Termination Fee, the receipt of the Termination Fee shall be deemed to be liquidated damages for any and all losses or ~~threatened (~~damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other ~~conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding~~ Person in connection with this Agreement (and ~~would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed~~the termination hereof), the Offer and the Merger (iiand the abandonment thereof) or any matter forming the ~~claim(s)~~ basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates for damages or any equitable relief arising out of or in connection with ~~respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates~~ this Agreement, any of the ~~Company shall not pay to Parent~~ Transactions or any matters forming the ~~Expense Payment and Parent shall pay to the Company $400,000~~basis for such termination. (c) If this Agreement is validly terminated by the Company (i) pursuant to Section 8.1(h) or Section 8.1(i), and the material breach or failure to perform by Parent or Merger Sub or the failure to commence the Offer within the time period specified in Section 2.1(a), as the case may be, is the primary reason for the failure of the Offer Closing or Closing to be consummated, or pursuant to Section 8.1(j), or (ii) if Parent shall terminate this Agreement pursuant to Section 8.1(b) and at such time the Company could have terminated this Agreement pursuant to Section 8.1(h), Section 8.1(i) or Section 8.1(j), then, if the Company so elects, Parent shall pay or cause to be paid to the Company a termination fee of $30.0 million (the “Parent Termination Fee”). Any Parent Termination Fee shall be paid, within two (2) Business Days of the date of the Company’s termination of the Agreement, by wire transfer of immediately available funds to an account designated in writing by the Company. For the avoidance of doubt, the Parent Termination Fee shall be payable only once and not in duplication even though the Parent Termination Fee may be payable under one or more provisions hereof. Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated by the Company because of a Debt Failure, or if the Company elects to receive the Parent Termination Fee under other circumstances where the Parent Termination Fee is payable pursuant to this Section 8.3(c), the Parent Termination Fee (including, without duplication, the Company’s right to enforce the Limited Guarantee with respect thereto, in accordance with the terms thereof, and receive the Parent Termination Fee from the Guarantors to the extent payable thereunder), shall be the sole and exclusive remedy of the Company and its Subsidiaries against the Parent Related Parties or the Debt Financing Sources Related Parties for all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Parent Related Parties or the Debt Financing Sources Related Parties shall have any further liability relating to or arising out of this Agreement or the Transactions, except that Parent and Merger Sub (or their Affiliates) will remain obligated with respect to, and the Company ~~pursuant~~ may be entitled to remedies with respect to, the Confidentiality Agreement, Section ~~9.1(b~~6.12(d), Section 6.15(c), Section 8.2, Section 8.3(a) and Section 8.3(d). Notwithstanding anything to the contrary in this Agreement or ~~Section 9.1(d)~~any other Transaction Document, in any case where the Parent Termination Fee is or would be payable because of a Debt Failure or where the Company otherwise elects to receive the Parent Termination Fee, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment of the Parent Termination Fee and any other payment in connection with this Agreement or otherwise, of the Parent Related Parties collectively (including monetary damages for breach, whether willful, intentional, unintentional or otherwise) (i) under this Agreement or any other Transaction Document, (ii) ~~at or prior to~~ in connection with the ~~time~~ failure of the ~~termination of this Agreement an Acquisition Proposal shall have been disclosed~~Offer, ~~announced~~Merger or the other Transactions to be consummated, ~~commenced, submitted~~ or ~~made, and~~ (iii) on in respect of any representation or ~~prior~~ warranty made or alleged to ~~12 months after~~ have been made in connection with this Agreement or any other Transaction Documents, will not exceed under any circumstances an amount equal to (x) the ~~date~~ Parent Termination Fee , plus (y) the amounts, if any, due and owing under Section 6.12(d), Section 6.15(c) and Section 8.3(d), plus (z) the reimbursement of ~~such termination~~any other expenses explicitly required pursuant to this Agreement (collectively, ~~either an Acquisition Transaction is consummated~~ the “Maximum Liability Amount”), and in no event will the Company, its Affiliates or ~~a definitive agreement relating to an Acquisition Transaction is entered into, then~~ any of the Company ~~shall pay~~ Representatives seek, directly or indirectly, to recover against the Parent Related Parties, or compel payment by the ~~Expense Payment and a non-refundable fee in the amount of $600,000~~ Parent Related Parties of, any damages or other payments whatsoever (~~the “Fee”~~including multiple, consequential, indirect, special, statutory, exemplary or punitive damages) in ~~cash on or prior~~ excess of the Maximum Liability Amount set forth in this Section 8.3(c). For the avoidance of doubt, nothing in this Section 8.3(c) limits the Company’s right to pursue specific performance as provided in (but subject to the ~~earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this~~ limitations of) Section ~~9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~9.12.” (d) ~~If this Agreement is terminated by~~ The Company, Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid Merger Sub acknowledge and ~~made within two business days after such termination. (g) Each party acknowledges and agrees~~ agree that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 8.3 are an integral part of the Transactions, and that, without these ~~covenants~~ agreements, the Company, Parent and ~~obligations, such party~~ Merger Sub would not ~~have entered~~ enter into this Agreement~~. (h) If either party fails~~ . In the event that the Company shall fail to pay the Termination Fee when ~~due any amount payable under this Section 9.3~~due, ~~then: (i) such party~~ Parent shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay be entitled to ~~the other party~~ receive interest on such ~~overdue amount (for the period~~ unpaid Termination Fee, 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~~ that the ~~other party in full)~~ Termination Fee became due, at a rate ~~per annum 500 basis points over~~ equal to the “prime rate” (as ~~announced by Bank of America~~published in The Wall Street Journal, ~~N.A. or any successor thereto)~~ Eastern Edition, in effect on the date such ~~overdue amount~~ payment was ~~originally~~ required to be ~~paid~~made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) and any reasonable and documented out of pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Parent and its Affiliates in connection with enforcing its rights under this Section 8.3(d). In the event that Parent shall fail to pay or cause to be paid the Parent Termination Fee when due, the Company shall be entitled to receive interest on such unpaid Parent Termination Fee, commencing on the date that the Parent Termination Fee became due, at a rate equal to the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to be made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) and any reasonable and documented out of pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Company in connection with enforcing its rights under this Section 8.3(d).

Appears in 1 contract

Samples: Merger Agreement (Amag Pharmaceuticals, Inc.)

Appears in 1 contract

Samples: Merger Agreement (Vizio Holding Corp.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.03, Article VIII or specifically set forth elsewhere in this Agreement, all ~~fees and expenses incurred in connection with this Agreement and the Transactions~~ Transaction Costs shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If this Agreement is terminated (i) by Parent pursuant to Section ~~9.1(b~~7.01(d) or (ii) by Parent pursuant to Section 7.01(h), then ~~the~~ Company shall pay to Parent an amount equal to $1,000,000 (the ~~Expense Payment;~~“Termination Fee”), plus any amount payable to Company pursuant to Section 7.03(e). (c) If this Agreement is terminated (i) ~~provided, however, if the only if as of the End Date all of the conditions~~ by Company pursuant to ~~the Closing in ARTICLE 7 have been satisfied~~ Section 7.01(i) or ~~waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment;~~ (ii) ~~provided, further, however, if (i) as of the End Date all of the conditions~~ by Parent pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of~~ Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed7.01(j), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and then Parent shall pay to Company the ~~Company $400,000~~Termination Fee, plus any amount payable to Parent pursuant to Section 7.03(e). (cd) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~7.1(e), (ii) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Parent Stockholders’ Meeting an Acquisition Proposal with respect to Parent shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Parent board of directors (and shall not have been withdrawn) and (iii) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Parent enters into a definitive agreement ~~relating~~ with respect to ~~an Acquisition~~ a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then ~~the Company~~ Parent shall pay to ~~Parent~~ the ~~Expense Payment and~~ Company, upon such entry into a ~~non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of~~ definitive agreement and/or consummation of ~~such Acquisition Transaction or~~ a Subsequent Transaction, the ~~date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references~~ Termination Fee plus any amount payable to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash~~7.03(e). (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section ~~9.3~~7.03, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 7.03 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent.

Appears in 1 contract

Samples: Merger Agreement (DropCar, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b), then~~ 9.1(e) and (y) at any time before the ~~Company shall pay to~~ Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) Stockholders’ Meeting an Acquisition Proposal with respect to ~~such Legal Proceeding has~~ Parent shall have been ~~timely and duly reported~~ publicly announced, disclosed or otherwise communicated to ~~the carrier for the Company~~Parent’s board of directors and ~~officers and/or errors and omissions insurance~~ stockholders and (~~iii~~z) ~~Parent terminates~~ within six months after the termination of this Agreement, ~~the Company shall not pay to~~ Parent ~~the Expense Payment and~~ enters into any agreement for a Change of Control Transaction or consummates a Change of Control Transaction, then Parent shall pay to the ~~Company~~ Company, within seven business days after the earlier of entering into such agreement or such consummation, a nonrefundable fee in an amount equal to $~~400,000~~6,000,000. (c) If ~~(i)~~ this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~9.1(d) ~~or Section 9.1(d),~~ and (iiy) at ~~or prior~~ any time before the Company Stockholders’ Meeting an Acquisition Proposal with respect to the ~~time~~ Company shall have been publicly announced, disclosed or otherwise communicated to the board of directors of the Company and stockholders of the Company and (z) within six months after the termination of this ~~Agreement an Acquisition Proposal shall have been disclosed~~Agreement, ~~announced, commenced, submitted~~ the Company enters into any agreement for a Change of Control Transaction or ~~made, and (iii) on or prior to 12 months after the date~~ consummates a Change of ~~such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into~~Control Transaction, then the Company shall pay to ~~Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to~~ Parent, within seven business days after the earlier of ~~the date of consummation of~~ entering into such ~~Acquisition Transaction~~ agreement or ~~the date of execution of~~ such ~~definitive agreement; provided~~consummation, ~~however, that, solely for purposes of this Section 9.3(b), all references~~ a nonrefundable fee in an amount equal to ~~“15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%~~$6,000,000.” (d) If this Agreement is terminated by Parent ~~pursuant to Section 9.1(e), or if this Agreement is terminated by Parent~~ or the Company pursuant to ~~any other provision of~~ Section ~~9.1~~ 9.1(e) and (y) at any time before the Parent Stockholders’ Meeting an Acquisition Proposal with respect to Parent shall have been publicly announced, disclosed or otherwise communicated to Parent’s board of directors and stockholders (any such Acquisition Proposal with respect to Parent that shall have been so publicly announced, disclosed or otherwise communicated at any time before the Parent Stockholders’ Meeting, an “Applicable Parent Acquisition Proposal”) and (z) within six months after the ~~occurrence~~ termination of ~~a Triggering Event~~this Agreement, Parent enters into any agreement for an Acquisition Transaction or consummates an Acquisition Transaction with any Person that made an Applicable Parent Acquisition Proposal or any of its Affiliates, then ~~the Company~~ Parent shall pay to the Company all Expenses of the Company within seven (7) business days after delivery by the Company to Parent of a demand for payment and an itemization setting forth in reasonable detail all Expenses of the ~~Fee and~~ Company, unless Parent has previously paid to the ~~Expense Payment in cash~~Company the fee required by Section 9.3(b). (e) If this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(f), then~~ 9.1(d) and (y) at any time before the Company Stockholders’ Meeting an Acquisition Proposal with respect to Company shall ~~pay~~ have been publicly announced, disclosed or otherwise communicated to ~~Parent~~ the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part board of directors of the ~~Transactions,~~ Company and ~~that, without these covenants and obligations,~~ stockholders of the Company (any such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection Acquisition Proposal with ~~the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay~~ respect to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.Company that shall have been so publicly

Appears in 1 contract

Samples: Merger Agreement (Celunol Corp)

Appears in 1 contract

Samples: Merger Agreement (Henry Bros. Electronics, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 8.3 and Section 6.12 all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided that all documented expenses reasonably incurred in connection with the engagement of the Exchange Agent and all filing and other fees paid to the SEC in connection with the Merger and the transactions contemplated hereby (the “Shared Expenses”), shall be borne fifty percent (50%) by the Company and fifty percent (50%) by Parent; provided, further, that the parties agree that in no event shall the Company be responsible for its portion of the Shared Expenses in an amount in excess of $50,000. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(e) or by the Company pursuant to Section ~~9.1(d~~8.1(f), (ii) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Parent Stockholder Meeting, an Acquisition Proposal with respect to Parent shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Parent Board (and shall not have been withdrawn) and (iii) ~~on or prior~~ in the event this Agreement is terminated pursuant to 12 Section 8.1(e), within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Parent enters into a definitive agreement ~~relating~~ with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Parent shall pay to the Company, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,000,000 (the “Company Termination Fee”). (c) If this Agreement is terminated (i) by the Company pursuant to Section 8.1(b) or Section 8.1(e) (when at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 8.1(f)) then Parent shall pay to the Company within five (5) Business Days of such termination, the Company Termination Fee or (ii) by Parent pursuant to Section 8.1(j), then Parent shall pay to the Company, concurrent with such termination, the Company Termination Fee. (d) If (i) this Agreement is terminated by Parent pursuant to Section 8.1(d) or Section 8.1(g), (ii) at any time after the date of this Agreement and before obtaining the Company Stockholder Approval, an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) in the event this Agreement is terminated pursuant to Section 8.1(d), within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Parent, within ten (10) Business Days after termination (or, if applicable, upon such entry into a ~~non-refundable~~ definitive agreement or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $3,000,000. (e) If this Agreement is terminated by the ~~amount~~ Company pursuant to Section 8.1(h), Parent shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement, up to a maximum of $~~600,000~~ 1,500,000, by wire transfer of same-day funds within ten (~~the “Fee”~~10) ~~in cash on or prior to the earlier of~~ Business Days following the date on which the Company submits to Parent true and correct copies of ~~consummation of~~ reasonable documentation supporting such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%expenses.” (df) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~8.1(i), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then~~ the Company shall ~~pay to~~ reimburse Parent ~~the Fee~~ for all reasonable out-of-pocket fees and expenses incurred by Parent in connection with this Agreement and the ~~Expense Payment in cash.~~ transactions contemplated by this Agreement, up to a maximum of $1,500,000, by wire transfer of same-day funds within ten (e10) ~~If this Agreement is terminated by~~ Business Days following the date on which Parent ~~pursuant~~ submits to ~~Section 9.1(f), then~~ the Company ~~shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid~~ true and ~~made within two business days after~~ correct copies of reasonable documentation supporting such ~~termination~~expenses. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable by it under this Section ~~9.3~~8.3, ~~then:~~ then (i) such party shall reimburse the other party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section ~~9.3;~~ 8.3 and (ii) ~~the first~~ such party shall pay to the other party 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 the other party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (h) The parties agree that, subject to Section 8.2, the payment of the fees and expenses set forth in this Section 8.3 shall be the sole and exclusive remedy of each party following a termination of this Agreement under the circumstances described in this Section 8.3, it being understood that in no event shall either Parent or the Company be required to pay the individual fees or damages payable pursuant to this Section 8.3 on more than one occasion. Subject to Section 8.2, following the payment of the fees and expenses set forth in this Section 8.3 by a party, (i) such party shall have no further liability to the other party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other party giving rise to such termination, or the failure of the transactions contemplated by this Agreement to be consummated, (ii) no other party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such party or seek to obtain any recovery, judgment or damages of any kind against such party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such party) in connection with or arising out of this Agreement or the termination thereof, any breach by such party giving rise to such termination or the failure of the transactions contemplated by this Agreement to be consummated and (iii) all other parties and their respective Affiliates shall be precluded from any other remedy against such party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such party giving rise to such termination or the failure of the transactions contemplated by this Agreement to be consummated. Each of the parties acknowledges that (x) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (y) without these agreements, the parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 8.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the parties in the circumstances in which such amount is payable; provided, however, that nothing in this Section 8.3(h) shall limit the rights of the parties under Section 9.12.

Appears in 1 contract

Samples: Merger Agreement (CohBar, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~11.3, all fees and expenses incurred in connection with this Agreement and any of the Merger Transactions (including fees and expenses payable to Representatives) shall be paid by the party hereto incurring such fees and expenses, whether or not the Merger is Transactions are consummated.; provided, however, that: (bi) If Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with any filings required by the parties hereto of applicable pre-merger notification and report forms relating to any of the Merger Transactions under the HSR Act and any filings required of any notice or other documents under any applicable foreign antitrust law or regulation; (ii) if this Agreement is terminated by (A) Parent pursuant to Section ~~9.1(b~~11.1(e) or Section 11.1(g) or (B) the Company pursuant to Section 11.1(f), then the Company shall pay to Parent in accordance with Section 11.3(f), in the ~~Expense Payment~~case of a termination pursuant to clause (A) above, as promptly as practicable following such termination (and, in any event, within two (2) business days following such termination), and in the case of a termination pursuant to clause (B) above, at or prior to the time of, and as a condition to the effectiveness of, such termination, in each case, an amount equal to the sum of (x) the Company Termination Fee and (y) the aggregate amount of the fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees, investment banking fees, incremental overhead expenses, costs and expenses related to interest rate xxxxxx, filing fees and printing and mailing expenses) that have been paid or that become payable by or on behalf of the Buyer Parties in connection with the preparation, negotiation and enforcement of this Agreement and otherwise in connection with the Merger Transactions, not to exceed $9,000,000 (the “Parent Expenses”); (iiii) ~~provided~~if this Agreement is terminated by (A) Parent pursuant to Section 11.1(d) or (B) the Company pursuant to 11.1(d), ~~however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16,~~ then the Company shall ~~not be required to~~ pay to Parent in accordance with Section 11.3(f), (x) in the ~~Expense Payment~~case of a termination pursuant to clause (A) above, as promptly as practicable following such termination (and, in any event, within two (2) business days following such termination), and in the case of a termination pursuant to clause (B) above, at or prior to the time of, and as a condition to the effectiveness of, such termination, in each case, an amount equal to the aggregate Parent Expenses and (y) on the earlier of the date that the Company enters into an Acquisition Agreement with respect to an Acquisition Proposal or that such Acquisition Proposal is consummated, if concurrently with the termination of this Agreement or within twelve (12) months thereafter, an amount equal to the Company Termination Fee; (iiiv) ~~provided, further, however,~~ if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~11.1(b), and (iiA) ~~at or prior to the time of the termination of this Agreement~~ an Acquisition Proposal shall have been ~~disclosed~~made to the Company Parties or publicly announced prior to such termination date, ~~announced~~and for purposes of this Section 11.3(a)(iv), ~~commenced, submitted or made~~“50%” shall be substituted for “20%” in the definition of Acquisition Transaction, and (~~iii~~B) on concurrently with the termination of this Agreement or ~~prior to 12~~ within twelve (12) months ~~after~~ thereafter, the ~~date of such termination, either~~ Company enters into an Acquisition ~~Transaction is consummated or a definitive agreement relating~~ Agreement with respect to an Acquisition ~~Transaction~~ Proposal or an Acquisition Proposal is ~~entered into~~consummated, then the Company shall pay to Parent ~~the Expense Payment and a non-refundable fee~~ in ~~the amount of $600,000 (the “Fee”) in cash~~ accordance with Section 11.3(f), on ~~or prior to~~ the earlier of the date ~~of consummation of~~ that the Company enters into the Acquisition Agreement or such Acquisition ~~Transaction~~ Proposal is consummated, an amount equal to the sum of the Company Termination Fee and the Parent Expenses; and (v) if (A) this Agreement is terminated by the Company pursuant to Section 11.1(b) (unless an Acquisition Proposal shall have been made to the Company Parties or ~~the date of execution of~~ publicly announced prior to such ~~definitive agreement; provided~~termination date, ~~however, that, solely~~ and for purposes of this Section ~~9.3(b~~11.3(a)(v), ~~all references to~~ “1550%” shall be substituted for “20%” in the definition of “Acquisition Transaction~~” shall~~ ) and all of the conditions set forth in Articles VIII and IX have been satisfied (other than those conditions that by their terms are to be ~~deemed to refer instead to “50%.”~~ satisfied at the Closing) or (dB) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(e~~11.1(h), then Parent shall pay to the Company in accordance with Section 11.3(d) an amount equal to the sum of (x) $11,000,000 (the “Parent Termination Fee”), and (y) the aggregate amount of the fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees, investment banking fees, incremental overhead expenses, costs and expenses related to interest rate xxxxxx, filing fees and printing and mailing expenses) that have been paid or if that become payable by or on behalf of the Company Parties in connection with the preparation, negotiation and enforcement of this Agreement ~~is terminated~~ and otherwise in connection with the Merger Transactions, not to exceed $9,000,000 (the “Company Expenses”). (b) Within two (2) business days after the termination of this Agreement by (i) Parent or the Company pursuant to ~~any other provision~~ Section 11.1(b), 11.1(c) or 11.1(d); (ii) Parent pursuant to Section 11.1(e) or 11.1(g); or (iii) the Company pursuant to Section 11.1(f) (in which case the amount below shall be payable at the time of ~~Section 9.1 at any time after the occurrence of a Triggering Event~~termination), ~~then~~ the Company shall pay to Parent, in addition to any amounts otherwise payable pursuant to this Agreement, an amount equal to the Xxxxxx Break-up Fee that Parent paid to Company pursuant to Section 7.15 (such payment being referred to as the “Xxxxxx Break-up Fee Reimbursement”). (c) In the event that Parent is obligated to pay the Parent Termination Fee and the ~~Expense Payment~~ Company Expenses, Parent shall pay to the Company, from the Parent Termination Fee and Company Expenses deposited into escrow in ~~cash~~accordance with the next sentence, an amount equal to the lesser of (i) the Parent Termination Fee and the Company Expenses and (ii) the sum of (A) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(H) or 856(c)(3)(I) of the Code (“Qualifying Income”), as determined by the Company’s independent public accountants, plus (B) in the event the Company receives either (x) a letter from the Company’s counsel indicating that the Company has received a ruling from the IRS described below in this Section 11.3(c) (but in any case not to increase the amount of the Parent Termination Fee or the Company Expenses) or (y) an opinion from the Company’s outside counsel as described below in this Section 11.3(c), an amount equal to the Parent Termination Fee and the Company Expenses less the amount payable under clause (A) above. To secure Parent’s obligation to pay these amounts, Parent shall deposit into escrow an amount in cash equal to the Parent Termination Fee and the Company Expenses with an escrow agent selected by Parent and on such terms (subject to this Section 11.3(c)) as shall be mutually agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Parent Termination Fee and the Company Expenses pursuant to this Section 11.3(c) shall be made at the time Parent is obligated to pay the Company such amount pursuant to Section 11.3 by wire transfer or bank check. The escrow agreement shall provide that the Parent Termination Fee and the Company Expenses in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (i) a letter from the Company’s independent public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising that amount, in which case the escrow agent shall release such amount to the Company, or (ii) a letter from the Company’s counsel indicating that the Company received a ruling from the IRS holding that the receipt by the Company of the Parent Termination Fee and the Company Expenses would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Parent Termination Fee and the Company Expenses would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Parent Termination Fee and the Company Expenses to the Company. Parent agrees to amend this Section 11.3(c) at the reasonable request of the Company in order to (i) maximize the portion of the Parent Termination Fee and the Company Expenses that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve the Company’s chances of securing a favorable ruling described in this Section 11.3(c) or (iii) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in this Section 11.3(c). The escrow agreement shall also provide that any portion of the Parent Termination Fee and the Company Expenses held in escrow for five (5) years shall be released by the escrow agent to Parent. Parent shall not be a party to such escrow agreement and shall not bear any cost of or have liability resulting from the escrow agreement. (d) In the event that Parent is required to pay the Parent Termination Fee and the Company Expenses pursuant to a termination of this Agreement, such amount shall be paid into escrow as provided in Section 11.3(c) as promptly as practicable following such termination, but in no event more than two (2) business days following such termination. (e) ~~If this Agreement~~ In the event that the Company is ~~terminated by~~ obligated to pay any of the Company Termination Fee, the Parent ~~pursuant to Section 9.1(f)~~Expenses or the Xxxxxx Break-up Fee Reimbursement, ~~then~~ the Company shall pay to Parent, from the Company Termination Fee, Parent Expenses and Xxxxxx Break-up Fee Reimbursement deposited into escrow in accordance with the ~~Expense Payment~~next sentence, an amount equal to the lesser of (i) the Company Termination Fee, the Parent Expenses and the Xxxxxx Break-up Fee Reimbursement and (ii) the sum of (A) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by Parent’s independent public accountants, plus (B) in the event Parent receives either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS described below in this Section 11.3(e) (but in any case not to increase the amount of the Company Termination Fee, Parent Expenses or Xxxxxx Break-up Fee Reimbursement) or (y) an opinion from Parent’s outside counsel as described below in this Section 11.3(e), an amount equal to the Company Termination Fee, the Parent Expenses and Xxxxxx Break-up Fee Reimbursement less the amount payable under clause (A) above. To secure the Company’s obligation to pay these amounts, the Company shall deposit into escrow an amount in cash equal to the Company Termination Fee, the Parent Expenses and Xxxxxx Break-up Fee Reimbursement (as applicable) with an escrow agent selected by the Company and on such terms (subject to this Section 11.3(e)) as shall be mutually agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee, the Parent Expenses and Xxxxxx Break-up Fee Reimbursement (as applicable) pursuant to this Section 11.3(e) shall be made at the time the Company is obligated to pay Parent such amounts pursuant to Section 11.3 by wire transfer or bank check. The escrow agreement shall provide that the Company Termination Fee, the Parent Expenses and the Xxxxxx Break-up Fee Reimbursement in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or combination of the following: (i) a letter from Parent’s independent public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from Parent’s accountants revising that amount, in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that Parent received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee and the Parent Expenses would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee, the Parent Expenses and the Xxxxxx Break-up Fee Reimbursement would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Company Termination Fee, the Parent Expenses and the Xxxxxx Break-up Fee Reimbursement to Parent. The Company agrees to amend this Section 11.3(e) at the reasonable request of Parent in order to (i) maximize the portion of the Company Termination Fee, the Parent Expenses and the Xxxxxx Break-up Fee Reimbursement that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Parent’s chances of securing a favorable ruling described in this Section 11.3(e) or (iii) assist Parent in obtaining a favorable legal opinion from its outside counsel as described in this Section 11.3(e). The escrow agreement shall also provide that any portion of the Company Termination Fee, the Parent Expenses and the Xxxxxx Break-up Fee Reimbursement held in escrow for five (5) years shall be released by the escrow agent to the Company. The Company shall not be a party to such escrow agreement and shall not bear any cost of or have liability resulting from the escrow agreement. (f) ~~Unless otherwise provided in this Section 9.3, any fee~~ In the event that the Company is required to ~~be paid~~ pay the Company Termination Fee, the Parent Expenses or the Xxxxxx Break-up Fee Reimbursement, pursuant to a termination of this ~~Section 9.3~~ Agreement, such amount shall be paid ~~and made within~~ into escrow as provided in Section 11.3(e) as promptly as practicable following such termination, but in no event more than two (2) business days ~~after~~ following such termination. (g) ~~Each party acknowledges~~ The parties hereto agree and ~~agrees~~ understand that in no event shall the Company or Parent be required to pay the Company Termination Fee, the Parent Termination Fee or the Xxxxxx Break-up Fee Reimbursement, respectively, on more than one occasion. The parties hereto acknowledge that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 11.3 are an integral part of the Merger Transactions, and that, without these ~~covenants and obligations~~agreements, ~~such party~~ the parties hereto would not ~~have entered~~ enter into this Agreement~~. (h) If either~~ . In the event any party ~~fails~~ hereto is required to ~~pay when due any amount~~ file suit to seek all or portion of the amounts payable under this Section ~~9.3~~11.3, ~~then: (i)~~ and such party hereto prevails in such litigation, such party hereto shall ~~reimburse the other party for~~ be awarded to all ~~costs and expenses (~~reasonable expenses, including reasonable attorneys’ fees and ~~disbursements of counsel)~~ expenses, that it has incurred in ~~connection with the collection of such overdue amount and the enforcement by the other party of~~ enforcing its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid11.3.

Appears in 1 contract

Samples: Merger Agreement (Inland American Real Estate Trust, Inc.)

Expenses; Termination Fees. (a) Except for the HSR Filing Fees (to be paid by the Company pursuant to Section 6.4(b)) and as set forth in this Section ~~9.2~~10.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If (i) this Agreement is terminated by ~~Parent~~ Fresh Vine or the Company pursuant to Section ~~9.1(b), then~~ 10.1(b) (and the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have Required Fresh Vine Shareholder Vote has not been ~~satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled~~ obtained by Fresh Vine) or ~~otherwise dismissed~~Section 10.1(e), (ii) at any time after the ~~claim(s)~~ date of this Agreement and prior to the Fresh Vine Shareholder Meeting, an Acquisition Proposal with respect to ~~such Legal Proceeding has~~ Fresh Vine shall have been ~~timely~~ publicly announced or disclosed or otherwise communicated to Fresh Vine or the Fresh Vine Board (and ~~duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance~~ shall not have been withdrawn), and (iii) ~~Parent terminates this Agreement~~within 12 months after the date of such termination, ~~the Company~~ Fresh Vine consummates any Subsequent Transaction corresponding to such Acquisition Proposal, then Fresh Vine shall ~~not~~ pay to ~~Parent~~ the ~~Expense Payment and Parent~~ Company, upon consummation of such Subsequent Transaction, a nonrefundable fee in an amount equal to $1.0 million (the “Company Termination Fee”). If this Agreement is terminated by Fresh Vine pursuant to Section 10.1(i), then Fresh Vine shall pay to the Company ~~$400,000~~the Company Termination Fee within two (2) Business Days of such termination. (c) If (i) this Agreement is terminated by ~~Parent or the Company~~ Fresh Vine pursuant to Section ~~9.1(b~~10.1(b) ~~or Section 9.1(d),~~ (and the Required Company Shareholder Vote has not been obtained by the Company) (ii) at ~~or prior to~~ any time after the ~~time of the termination~~ date of this Agreement and before obtaining the Required Company Shareholder Vote, an Acquisition Proposal with respect to the Company shall have been ~~disclosed, announced, commenced, submitted~~ publicly announced or ~~made~~disclosed or otherwise communicated to the Company or the Company Board (and shall not have been withdrawn), and (iii) ~~on or prior to~~ within 12 months after the date of such termination, ~~either an~~ the Company consummates any Subsequent Transaction corresponding to such Acquisition ~~Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into~~Proposal, then (y) the Company shall pay to ~~Parent the Expense Payment and~~ Fresh Vine, upon consummation of such Subsequent Transaction, a ~~non-refundable~~ nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 1.0 million (the “Fresh Vine Termination Fee”), and (z) ~~in cash on~~ the Company shall, at the sole election of Fresh Vine, redeem the Fresh Vine Investment at the same price per share as the purchase price paid by Fresh Vine therefor at or prior to the ~~earlier~~ consummation of the ~~date of consummation~~ Subsequent Transaction. If this Agreement is terminated by Fresh Vine pursuant to Section 10.1(d), then (y) the Company shall pay to Fresh Vine the Fresh Vine Termination Fee within two (2) Business Days of such ~~Acquisition Transaction or~~ termination, and (z) the ~~date~~ Company shall, at the sole election of ~~execution~~ Fresh Vine, redeem the Fresh Vine Investment at the same price per share as the purchase price paid by Fresh Vine therefor. If this Agreement is terminated by the Company pursuant to Section 10.1(f), then (y) the Company shall pay to Fresh Vine the Fresh Vine Termination Fee within two (2) Business Days of ~~such definitive agreement; provided, however, that, solely for purposes~~ the termination of this ~~Section 9.3(b)~~Agreement, ~~all references to “15%” in~~ and (z) the ~~definition~~ Company shall, at the sole election of ~~“Acquisition Transaction” shall be deemed to refer instead to “50%~~Fresh Vine, redeem the Fresh Vine Investment at the same price per share as the purchase price paid by Fresh Vine therefor.” (d) If this Agreement is terminated by ~~Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~10.1(f), ~~then~~ Section 10.1(g) or Section 10.1(j),or by Fresh Vine pursuant to Section 10.1(j), Fresh Vine shall reimburse the Company ~~shall pay to Parent~~ for all reasonable out-of-pocket fees and expenses incurred by the ~~Fee~~ Company in connection with this Agreement and the ~~Expense Payment in cash~~Contemplated Transactions, up to a maximum of $500,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which the Company submits to Fresh Vine true and correct copies of reasonable documentation supporting such expenses. (e) If this Agreement is terminated by ~~Parent~~ Fresh Vine pursuant to Section ~~9.1(f~~10.1(h) or Section 10.1(k), ~~then~~ or by the Company pursuant to Section 10.1(k), in addition to the payment of any Fresh Vine Termination Fee (if applicable), the Company shall ~~pay~~ reimburse Fresh Vine for all reasonable out-of-pocket fees and expenses incurred by Fresh Vine in connection with this Agreement and the Contemplated Transactions, up to ~~Parent~~ a maximum of $500,000, by wire transfer of same-day funds within ten (10) Business Days following the ~~Expense Payment~~date on which Fresh Vine submits to the Company true and correct copies of reasonable documentation supporting such expenses. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section ~~9.3~~10.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 10.3 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (g) The Parties agree that, subject to Section 10.2, the payment of the fees and expenses set forth in this Section 10.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 10.3, it being understood that in no event shall either Fresh Vine or the Company be required to pay the individual fees or damages payable pursuant to this Section 10.3 on more than one occasion. Subject to Section 10.2, following the payment of the fees and expenses set forth in this Section 10.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, shareholder, director, officer, employee, Subsidiary, Affiliate, agent or other representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 10.3 are an integral part of the Contemplated Transactions, (y) without these agreements, the Parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 10.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable. The termination fees, reimbursement of expenses set forth in this Section 10.3 and payments in respect of any redemption of the Fresh Vine Investment represent the maximum amount either Party may be obligated to pay or reimburse to the other Party upon a termination of this Agreement. Notwithstanding the foregoing, no Party will be relieved or released from any liability or damages arising or resulting from any act of fraud on the part of such Party or any of its Affiliates or Representatives. Without limiting the generality of the foregoing, (i) the Company acknowledges and agrees that the payment of the fees and expenses set forth in this Section 10.3 will not preclude Fresh Vine, in the case of any fraud perpetrated by the Company or any of its Affiliates or Representatives, from seeking any additional damages or other remedies available at Law or in equity from any Person on account of such fraud and (ii) Fresh Vine acknowledges and agrees that the payment of fees and expenses set forth in this Section 10.3 will not preclude the Company, in the case of any fraud perpetrated by Fresh Vine or any of its Affiliates or Representatives, from seeking any additional damages or other remedies available at Law or in equity from any Person on account of such fraud.

Appears in 1 contract

Samples: Merger Agreement (Fresh Vine Wine, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 9.3 and Section 5.11 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that Apricus and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. It is understood and agreed that all fees and expenses incurred or to be incurred by the Company or Apricus in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company or Apricus, as applicable, in cash at or prior to the Closing (and shall be Company Transaction Expenses or Apricus Transaction Expenses, as applicable). (b) If (i) (A) this Agreement is terminated by Apricus or the Company pursuant to Section 9.1(e), or (B) this Agreement is terminated by the Company pursuant to Section 9.1(h), (ii) at any time after the date of this Agreement and prior to the Apricus Stockholders’ Meeting an Acquisition Proposal with respect to Apricus shall have been publicly announced, disclosed or otherwise communicated to the Apricus Board and (iii) within 12 months after the date of such termination, Apricus enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Apricus shall pay to the Company, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $500,000 (the “Company Termination Fee”) by wire transfer of same-day funds or by issuing to the Company shares of Apricus Common Stock or a combination thereof, as determined by Apricus in its sole discretion, with any such shares of Apricus Common Stock valued at the volume weighted average closing trading price of a share of Apricus Common Stock on Nasdaq for the five trading days ending the trading day immediately prior to the date upon which Apricus enters into a definitive agreement and/or consummates a Subsequent Transaction (subject to further adjustment as appropriate to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to the Apricus Common Stock), less any amount previously paid to the Company pursuant to Section 9.3(f), plus any amount payable to the Company pursuant to Section 9.3(h) by wire transfer of same-day funds. (c) If this Agreement is terminated by ~~Parent~~ the Company pursuant to Section ~~9.1(b~~9.1(f) or by Apricus pursuant to Section 9.1(k), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent Apricus shall pay to the Company, by wire transfer of same-day funds within ten Business Days after termination, the Company ~~$400,000~~Termination Fee, in addition to any amount payable to the Company pursuant to Section 9.3(h). (cd) If (i) this Agreement is terminated by ~~Parent or the Company~~ Apricus pursuant to ~~Section 9.1(b~~Sections 9.1(d) or ~~Section 9.1(d~~9.1(i), (ii) at ~~or prior to~~ any time after the ~~time of the termination~~ date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made~~otherwise communicated to the Company Board, and (iii) ~~on or prior to~~ within 12 months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ the Company enters into a definitive agreement ~~relating~~ with respect to ~~an Acquisition~~ a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Apricus, upon such entry into a ~~non-refundable~~ definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in ~~the~~ an amount of equal to $~~600,000~~ 500,000 (the “Apricus Termination Fee”) by wire transfer of same-day funds or by issuing to Apricus shares of Company Common Stock or a combination thereof, as determined by the Company in ~~cash on~~ its sole discretion, with any such shares of Company Common Stock valued at a price per share of $16.25 (subject to further adjustment as appropriate to reflect any stock split, division or ~~prior~~ subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to the ~~earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b~~Company Common Stock), ~~all references~~ in addition to ~~“15%” in the definition of “Acquisition Transaction” shall be deemed~~ any amount payable to ~~refer instead to “50%.” (d) If this Agreement is terminated by Parent~~ Apricus pursuant to Section ~~9.1(e~~9.3(h), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by ~~Parent~~ Apricus pursuant to Section ~~9.1(f~~9.1(g) or by the Company pursuant to Section 9.1(j), then the Company shall pay to ~~Parent~~ Apricus, within ten Business Days after termination, the ~~Expense Payment~~Apricus Termination Fee, in addition to any amount payable to Apricus pursuant to Section 9.3(h). (f) ~~Unless otherwise provided~~ (i) If this Agreement is terminated by the Company pursuant to Section 9.1(h) or Section 9.1(e) or (ii) in ~~this Section 9.3, any fee required~~ the event of the failure of the Company to consummate the transactions to be ~~paid~~ contemplated at the Closing solely as a result of an Apricus Material Adverse Effect as set forth in Section 8.5 (provided, that at such time all of the other conditions precedent to Apricus’ obligation to close set forth in Section 6 and Section 7 have been satisfied by the Company, are capable of being satisfied by the Company or have been waived by Apricus), then Apricus shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions (such expenses, collectively, the “Third Party Expenses”), up to a maximum of $350,000, by wire transfer of same-day funds within ten Business Days following the date on which the Company submits to Apricus true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that in no event shall Apricus be obligated to reimburse the Company for any amounts payable to financial advisors to the Company except for reasonably documented out-of-pocket expenses otherwise reimbursable by the Company to such financial advisors pursuant to ~~this Section 9.3 shall be paid and made within two business days after~~ the terms of the Company’s engagement letter or similar arrangement with such ~~termination.~~ financial advisors. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) ~~such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel~~If this Agreement is terminated by Apricus pursuant to Section 9.1(i) ~~incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and~~ or (ii) in the ~~first party shall pay~~ event of the failure of Apricus to consummate the transactions to be consummated at the Closing solely as a result of a Company Material Adverse Effect as set forth in Section 7.5 (provided, that at such time all of the other conditions precedent to the ~~other party interest on such overdue amount (~~Company’s obligation to close set forth in Section 6 and Section 8 have been satisfied by Apricus, are capable of being satisfied by Apricus or have been waived by the Company), the Company shall reimburse Apricus for ~~the period commencing as~~ all Third Party Expenses incurred by Apricus up to a maximum of $350,000, by wire transfer of same-day funds within ten Business Days following the date ~~such overdue amount was originally required to be paid and ending~~ on ~~the date such overdue amount is actually paid~~ which Apricus submits to the ~~other party~~ Company true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that in ~~full) at a rate per annum 500 basis points over~~ no event shall the ~~“prime rate” (as announced~~ Company be obligated to reimburse Apricus for any amounts payable to financial advisors to Apricus except for reasonably documented out-of-pocket expenses otherwise reimbursable by ~~Bank~~ Apricus to such financial advisors pursuant to the terms of ~~America, N.A.~~ Apricus’ engagement letter or ~~any successor thereto) in effect on the date~~ similar arrangement with such ~~overdue amount was originally required to be paid~~financial advisors.

Appears in 1 contract

Samples: Merger Agreement (Apricus Biosciences, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees for the filing of any notice or other document under any applicable antitrust law or regulation, including the filing with the United States Department of Justice and Federal Trade Commission pursuant to the HSR Act. (b) If this Agreement is terminated (i) by Parent or Acquisition Co. pursuant to Section ~~9.1(b~~8.1(f), or (ii) by the Company pursuant to Section 8.1(g); then the Company shall pay to Parent substantially concurrently with such termination, in the case of a termination by the Company, or within two (2) Business Days thereafter in the case of a termination by Parent, the Termination Fee. (c) In the event that this Agreement is terminated pursuant to Section 8.1(d) by reason of a breach by the Company of any representation, warranty or covenant of the Company contained in this Agreement that the Company shall have failed to cure in accordance with the notice and cure provisions of Section 8.1(d), the Company shall promptly reimburse Parent for its and Acquisition’s reasonable out-of-pocket fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby. In the event that (i) this Agreement is terminated pursuant to Section 8.1(d) by reason of a breach by the Company of any representation, warranty or covenant of the Company contained in this Agreement that the Company shall have failed to cure in accordance with the notice and cure provisions of Section 8.1(d), (ii) prior to such termination an Alternative Transaction Proposal shall have been publicly disclosed or otherwise communicated to the Company or the Company’s board of directors and not withdrawn, and (iii) within six (6) months after such termination, the Company consummates a transaction contemplated by any Alternative Transaction Proposal, then the Company shall pay to Parent the ~~Expense Payment;~~ Termination Fee (iless any amount previously paid pursuant to this Section 8.3(c)) on the date no later than two (2) Business Days after the consummation of a transaction that constitutes an Alternative Transaction Proposal; provided, ~~however, if the only if as of the End Date all of the conditions to the Closing~~ however that in ~~ARTICLE 7 have been satisfied or waived except those set forth~~ no event shall a transaction engaged in ~~Sections 7.7 or 7.16,~~ by the Company ~~shall not be required~~ during such six month period obligate the Company to pay ~~to Parent~~ the ~~Expense Payment; (ii) provided, further, however,~~ Termination Fee if (ix) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s ~~directors and officers and/or errors and omissions insurance~~ shareholders constitute at least sixty percent (60%) of the equity holders of the surviving entity in such transaction and (~~iii~~y) ~~Parent terminates this Agreement,~~ such transaction was not the ~~Company shall not pay to Parent the Expense Payment and Parent shall pay~~ Alternative Transaction Proposal publicly disclosed or otherwise communicated to the ~~Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or~~ Board of Directors prior to ~~the time of~~ the termination of this ~~Agreement an Acquisition Proposal~~ Agreement. For purposes of the immediately preceding sentence, the term “Alternative Transaction Proposal” shall have ~~been disclosed, announced, commenced, submitted or made, and (iii) on or prior~~ the meaning assigned to ~~12 months after~~ such term in Section 5.3 except that the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15ten percent (10%)” ~~in the definition of “Acquisition Transaction”~~ therein shall be deemed to ~~refer instead~~ be references to “~~50%~~a majority.” (d) If In the event that this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(e), or if this Agreement is terminated~~ 8.1(e) by reason of a breach by Parent or Acquisition Co. of any representation, warranty or covenant of Parent or Acquisition Co. contained in this Agreement that Parent or Acquisition shall have failed to cure in accordance with the ~~Company pursuant to any other provision~~ notice and cure provisions of Section ~~9.1 at any time after the occurrence of a Triggering Event~~8.1(e), ~~then the~~ Parent shall promptly reimburse Company ~~shall pay to Parent the Fee~~ for Company’s reasonable out-of-pocket fees, costs and expenses incurred in connection with this Agreement and the ~~Expense Payment in cash~~transactions contemplated hereby. (e) If In the event this Agreement is terminated ~~by Parent~~ pursuant to Section ~~9.1(f), then~~ 8.1(h)(ii) a fee in immediately available United States Dollars in the amount of three million three hundred and seventythree thousand dollars ($3,373,000.00) shall be paid by the Parent to the Company ~~shall pay to Parent the Expense Payment~~within two (2) Business Days of termination. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part For purposes of ~~the Transactions, and that, without these covenants and obligations, such party would not have entered into~~ this Agreement, “Termination Fee” shall mean a fee in immediately available United States Dollars equal to three million three hundred and seventythree thousand dollars ($3,373,000.00). (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 1 contract

Samples: Merger Agreement (Foster L B Co)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 10.3 and Section 6.10 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~10.1(e) or by the Company pursuant to Section ~~9.1(d~~10.1(f), (ii) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Parent Stockholder Meeting, an Acquisition Proposal with respect to Parent shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Parent Board (and shall not have been withdrawn) and (iii) ~~on or prior~~ in the event this Agreement is terminated pursuant to 12 Section 10.1(e), within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Parent enters into a definitive agreement ~~relating~~ with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Parent shall pay to the Company, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $3,040,000 (the “Parent Termination Fee”). (c) If this Agreement is terminated (i) by the Company pursuant to Section 10.1(b) or Section 10.1(e) (when in either such case at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 10.1(f)) then Parent shall pay to the Company within five (5) Business Days of such termination, the Parent Termination Fee or (ii) by Parent pursuant to Section 10.1(j), then Parent shall pay to the Company, concurrent with such termination, the Parent Termination Fee. (d) If (i) this Agreement is terminated by Parent pursuant to Section 10.1(d) or Section 10.1(g), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote, an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) in the event this Agreement is terminated pursuant to Section 10.1(d), within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Parent, within ten (10) Business Days after termination (or, if applicable, upon such entry into a ~~non-refundable~~ definitive agreement or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $12,000,000. (e) If this Agreement is terminated by the ~~amount~~ Company pursuant to Section 10.1(h), Parent shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions, up to a maximum of $~~600,000~~ 1,000,000, by wire transfer of same-day funds within ten (~~the “Fee”~~10) ~~in cash on or prior to the earlier of~~ Business Days following the date on which the Company submits to Parent true and correct copies of ~~consummation of~~ reasonable documentation supporting such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%expenses.” (df) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e~~10.1(i), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then~~ the Company shall ~~pay to~~ reimburse Parent ~~the Fee~~ for all reasonable out-of-pocket fees and expenses incurred by Parent in connection with this Agreement and the ~~Expense Payment in cash.~~ Contemplated Transactions, up to a maximum of $1,000,000, by wire transfer of same-day funds within ten (e10) ~~If this Agreement is terminated by~~ Business Days following the date on which Parent ~~pursuant~~ submits to ~~Section 9.1(f), then~~ the Company ~~shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid~~ true and ~~made within two business days after~~ correct copies of reasonable documentation supporting such ~~termination~~expenses. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either ~~party~~ Party fails to pay when due any amount payable by it under this Section ~~9.3~~10.3, ~~then:~~ then (i) such ~~party~~ Party shall reimburse the other ~~party~~ Party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other ~~party~~ Party of its rights under this Section ~~9.3;~~ 10.3 and (ii) ~~the first party~~ such Party shall pay to the other ~~party~~ Party 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 the other ~~party~~ Party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (h) The Parties agree that, subject to Section 10.2, the payment of the fees and expenses set forth in this Section 10.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 10.3, it being understood that in no event shall either Parent or the Company be required to pay the individual fees or damages payable pursuant to this Section 10.3 on more than one occasion. Subject to Section 10.2, following the payment of the fees and expenses set forth in this Section 10.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 10.3 are an integral part of the Contemplated Transactions, (y) without these agreements, the Parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 10.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the circumstances in which such amount is payable; provided, however, that nothing in this Section 10.3(h) shall limit the rights of the Parties under Section 11.10.

Appears in 1 contract

Samples: Merger Agreement (Neoleukin Therapeutics, Inc.)

Appears in 1 contract

Samples: Merger Agreement (Cubic Corp /De/)

Expenses; Termination Fees. (a) ~~Except as set forth~~ If (i) the Merger is consummated or (ii) this Agreement is terminated in ~~this~~ accordance with Section ~~9.2~~9.1(a), 9.1(b), 9.1(c), 9.1(d) or 9.1(f), all ~~fees~~ costs and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated hereby shall be paid by the party incurring such ~~fees~~ expense, except that expenses (other than legal and accounting expenses) incurred in connection with the preparation, ~~whether~~ filing, printing and mailing of the preliminary and definitive Proxy Statement and the Registration Statement (not including investment banking fees) shall be shared equally by Palatin and MBI. If this Agreement is terminated in accordance with Section 9.1(e), 9.1(g), 9.1(h), or ~~not~~ 9.1(i), all costs and expenses incurred in connection with this Agreement and the ~~Merger is consummated~~transactions contemplated hereby shall be promptly paid within five business days after receipt of a written request therefor, in same day funds, to the other party hereto by the breaching party (in the case of Section 9.1(e)), by the terminating party (in the case of Section 9.1(g)), and by the party having altered its recommendation (in the case of Sections 9.1(h) and 9.1(i)). (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreementa material breach of Section 7.10, the ~~Company shall not pay to Parent~~ party that causes the ~~Expense Payment and Parent~~ breach shall pay to the ~~Company~~ other party within five business 50 days after receipt of a written request therefor, in same day funds, One Million Dollars ($~~400,000~~1,000,000) (the "Termination Fee"). (c) If ~~(i)~~ this Agreement is terminated ~~by Parent or the Company pursuant to~~ as provided in Section ~~9.1(b) or Section 9.1(d~~9.1(e), ~~(ii) at or prior to~~ the ~~time of~~ party that causes the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company breach shall pay to ~~Parent~~ the ~~Expense Payment and~~ other party within five business days after receipt of a ~~non-refundable fee~~ written request therefor, in same day funds, the ~~amount of $600,000 (the “~~Termination Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If (i) MBI has had contact before the date hereof with any person or any agent for such person (such person together with any affiliate of such person, an "MBI Offeror") or has contact after the date hereof and prior to the Effective Date with an MBI Offeror concerning a Business Combination Proposal with the MBI Offeror (regardless of whether such Business Combination Proposal was encouraged or solicited by MBI in violation of Section 7.10 hereof) and (ii) within one year after the termination of this ~~Agreement is terminated~~ Agreement, either (1) MBI or any MBI subsidiary enters into an agreement with such MBI Offeror which provides for (a) transfer or issuance of securities representing 40% or more of the equity or voting interests in MBI, (b) a merger, consolidation, recapitalization or other transaction resulting in the issuance of cash or securities of such MBI Offeror (excluding any reincorporation or a holding company merger that results in the MBI stockholders owning all of the equity interests in the surviving corporation) to MBI stockholders in exchange for 40% or more of the equity or voting interests in MBI, or (c) transfer of assets, securities or ownership interests representing 40% or more of the consolidated assets or earning power of MBI, or (2) the MBI Offeror commences a tender offer that results in the acquisition by ~~Parent pursuant to Section 9.1(e~~the person making the tender offer of a majority of the MBI Common Stock (the transactions described in clauses (1) and (2) above, an "MBI Third Party Business Combination"), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event,~~ then ~~the Company~~ MBI shall pay to ~~Parent~~ Palatin the ~~Fee and the Expense Payment in cash~~Termination Fee. (e) If (i) Palatin has had contact before the date hereof with any person or any agent for such person (such person together with any affiliate of such person, an "Palatin Offeror") or has contact after the date hereof and prior to the Effective Date with a Palatin Offeror concerning a Business Combination Proposal with the Palatin Offeror (regardless of whether such Business Combination Proposal was encouraged or solicited by Palatin in violation of Section 7.10 hereof) and (ii) within one year after the termination of this ~~Agreement is terminated~~ Agreement, either (1) Palatin or any Palatin subsidiary enters into an agreement with such Palatin Offeror which provides for (a) transfer or issuance of securities representing 40% or more of the equity or voting interests in Palatin, (b) a merger, consolidation, recapitalization or other transaction resulting in the issuance of cash or securities of such Palatin Offeror (excluding any reincorporation or a holding company merger that results in the Palatin stockholders owning all of the equity interests in the surviving corporation) to Palatin stockholders in exchange for 40% or more of the equity or voting interests in Palatin, or (c) transfer of assets, securities or ownership interests representing 40% or more of the consolidated assets or earning power of Palatin, or (2) the Palatin Offeror commences a tender offer that results in the acquisition by ~~Parent pursuant to Section 9.1(f~~the person making the tender offer of a majority of the Palatin Common Stock (the transactions described in clauses (1) and (2) above, a "Palatin Third Party Business Combination"), then ~~the Company~~ Palatin shall pay to ~~Parent~~ MBI the ~~Expense Payment~~Termination Fee. (f) ~~Unless otherwise provided in~~ In no event shall any party hereto be required by the terms of this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails Agreement to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paidmore than one Termination Fee.

Appears in 1 contract

Samples: Merger Agreement (Palatin Technologies Inc)

Expenses; Termination Fees. (a) Except as ~~set forth in this Section 9.2~~otherwise provided herein, all ~~fees~~ costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the ~~party~~ Party incurring such ~~fees and expenses, whether~~ cost or ~~not the Merger is consummated~~expense. (b) (i) If this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~10.01(c)(i) as a result of an Adverse Recommendation Change in respect of a Superior Proposal or by the Company pursuant to Section 10.01(d)(i) and either (A) such termination occurs on or before the No-Shop Period Start Date or (B) the Company enters into a definitive agreement with an Excluded Party with respect to a Superior Proposal in accordance with Section 10.01(d)(i) on or before the date that is the later of (I) the date that is 10 days after the No-Shop Period Start Date and (II) the date that is one day after the date on which the last Negotiation Period ends, then the Company shall pay to Parent by wire transfer of immediately available funds $8,750,000 (the “Go-Shop Termination Fee”). If (x) this Agreement is terminated by Parent pursuant to Section 10.01(c)(i) or by the Company pursuant to Section 10.01(d)(i) and (y) the Go-Shop Termination Fee is not payable pursuant to the preceding sentence, or if this Agreement is terminated by the Company or Parent pursuant to Section 10.01(b)(i) and at the time of such termination Parent would have been entitled to terminate this Agreement pursuant to Section 10.01(c)(i), then the Company shall pay to Parent by wire transfer of immediately available funds $17,500,000 (the ~~Expense Payment;~~ “Termination Fee”). The Go-Shop Termination Fee and the Termination Fee, as applicable, shall be payable by the Company in the case of a termination (iI) ~~provided, however,~~ by Parent pursuant to Section 10.01(c)(i) or Section 10.01(b)(i) if at the ~~only if as~~ time of ~~the End Date all of the conditions to the Closing in ARTICLE 7~~ such termination Parent would have been ~~satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required~~ entitled to ~~pay~~ terminate this Agreement pursuant to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed10.01(c)(i), ~~(ii) the claim(s) with respect to~~ within one Business Day after such ~~Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance~~ termination and (~~iii~~II) ~~Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated~~ by ~~Parent or~~ the Company pursuant to Section ~~9.1(b) or Section 9.1(d~~10.01(d)(i), ~~(ii) at or prior~~ substantially concurrently with and as a condition to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) on or prior to 12 months after the date of such termination, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then the Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 1 contract

Samples: Merger Agreement (Zep Inc.)

Expenses; Termination Fees. (aA) Except as set forth in this Section ~~9.2~~8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that: (i) Parent shall pay all fees and expenses, other than the Company's attorneys' fees, incurred in connection with the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable non U.S. Antitrust Law; and (ii) if: (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b); (B) at or prior to the time of the termination of this Agreement, an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made; (C) prior to the time of the termination of this Agreement the Company Shareholders' Meeting shall not have been held; and (D) at or prior to the time of the termination of this Agreement the condition set forth in Section 6.3 shall have been satisfied, then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(d)), the Company shall make a nonrefundable cash payment to Parent, at the time specified in the next sentence, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the other agreements referred to in this Agreement and otherwise in connection with the Merger and the other transactions contemplated by this Agreement; provided, however, that the amount payable pursuant to this Section 8.3(a) shall in no event exceed $3,000,000. 58 In the case of termination of this Agreement by the Company pursuant to Section 8.1(b), any nonrefundable payment required to be made pursuant to clause "(ii)" of the proviso to the preceding sentence shall be made by the Company prior to the time of such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(b), any nonrefundable payment required to be made pursuant to clause "(ii)" of the proviso to the preceding sentence shall be made by the Company within two business days after such termination. (bB) If this Agreement is terminated by Parent pursuant to Section ~~9.1(b~~8.1(e), then the Company shall pay to Parent in cash a nonrefundable fee in the ~~Expense Payment;~~amount of $18,100,000 within two business days after such termination, less any expense reimbursement paid by the Company pursuant to Section 8.3(a)(ii). (C) If: (i) ~~provided~~any Specified Action shall have occurred; and (ii) following such Specified Action, ~~however~~this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), ~~if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16,~~ then the Company shall ~~not be required to~~ pay to ~~Parent~~ Parent, in cash at the ~~Expense Payment; (ii) provided~~time specified in the next sentence, ~~further~~a nonrefundable fee in the amount of $18,100,000. In the case of termination of this Agreement by the Company pursuant to Section 8.1(d), ~~however, if (i) as of~~ the ~~End Date all of~~ fee referred to in the ~~conditions~~ preceding sentence shall be paid by the Company prior to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result time of such ~~Legal Proceeding~~ termination; and ~~would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed~~in the case of termination of this Agreement by Parent pursuant to Section 8.1(d), ~~(ii)~~ the ~~claim(s) with respect~~ fee referred to ~~such Legal Proceeding has been timely and duly reported to~~ in the ~~carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement,~~ preceding sentence shall be paid by the Company ~~shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000~~within two business days after such termination. (cD) If If: (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~8.1(b) or Section ~~9.1(d~~8.1(d), ; (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, ; and (iii) on or prior to ~~12 months after~~ the ~~date~~ first anniversary of such ~~termination~~termination of this Agreement, ~~either~~ either: (A) an Acquisition Transaction is ~~consummated~~ consummated; or (B) a definitive agreement ~~relating~~ with respect to an Acquisition Transaction is entered ~~into~~into by an Acquired Corporation, then the Company shall pay to ~~Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”)~~ Parent, in cash on ~~or prior to~~ the earlier of the ~~date of~~ consummation of such Acquisition Transaction or the ~~date of~~ execution of such definitive ~~agreement; provided, however, that, solely for purposes of this~~ agreement (and in addition to any amounts payable pursuant to Section ~~9.3(b~~8.3(a)), ~~all references to “15%”~~ a nonrefundable fee in the ~~definition~~ amount of ~~“Acquisition Transaction” shall be deemed~~ $18,100,000, less any expense reimbursement that was paid by the Company pursuant to ~~refer instead to “50%~~Section 8.3(a)(ii).” (dE) If this Agreement is terminated by ~~Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or~~ the Company pursuant to ~~any other provision~~ Section 8.1(h), then, prior to the time of ~~Section 9.1 at any time after the occurrence of a Triggering Event~~such termination, ~~then~~ the Company shall pay to Parent a nonrefundable fee in the ~~Fee and the Expense Payment~~ amount of $18,100,000 in cash. (eF) If ~~this Agreement is terminated by Parent pursuant to Section 9.1(f), then~~ the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails promptly to pay when due any amount payable by the Company under this Section ~~9.3~~8.3, then: (i) ~~such party~~ the Company shall reimburse ~~the other party~~ Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by ~~the other party~~ Parent of its rights under this Section ~~9.3~~8.3; and (ii) the ~~first party~~ Company shall pay to ~~the other party~~ 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~~ through the date such overdue amount is actually paid to ~~the other party~~ Parent in full) at a rate per annum ~~500~~ equal to the lower of: (i) 175 basis points over the “"prime rate” " (as announced by ~~Bank of America~~Citibank, N.A. or any 59 successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii) the maximum rate permitted by applicable Legal Requirements.

Appears in 1 contract

Samples: Merger Agreement (Applied Films Corp)

Expenses; Termination Fees. (a) ~~Except as set forth in this Section 9.2~~Subject to Sections 12.3(b), (c) and (e), whether or not the Merger is consummated, all ~~fees~~ costs and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated herein shall be paid by the party incurring such ~~fees and~~ expenses~~, whether or not the Merger is consummated~~. (b) If this Agreement is terminated by ~~Parent~~ Sub pursuant to Sections 11.1(c), (e), (f) or (g), then the Company shall, by wire transfer of immediately available funds to an account designated by Sub, reimburse Sub and its affiliates, not later than two business days after Sub submits to the Company statements therefor, for all reasonable and necessary out-of-pocket fees and expenses (including, without limitation, all reasonable fees and expenses of counsel, accountants, financial institutions, experts and consultants) incurred in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the arranging of financing for the Merger and all other matters related to the consummation of the transactions contemplated hereby up to a maximum amount of $750,000 (exclusive of any expenses and fees specifically agreed to by the Company and incurred in connection with any proposed placement of subordinated debt to finance or refinance the transactions contemplated hereby) in the case of a termination pursuant to Sections 11.1(c), (e) or (g) and up to a maximum amount of $500,000 (exclusive of any expenses and fees specifically agreed to by the Company and incurred in connection with any proposed placement of subordinated debt to finance or refinance the transactions contemplated hereby) in the case of a termination pursuant to Section ~~9.1(b~~11.1(f). A payment under this Section 12.3(b) shall not limit Sub's or JEDI's right to pursue all other available remedies if the Company has breached this Agreement, although neither JEDI nor Sub shall be permitted to recover such fees and expenses more than once. (c) If this Agreement is terminated by the Company pursuant to Section 11.1(c), then JEDI shall, by wire transfer of immediately available funds to an account designated by the Company, reimburse the Company, not later than two business days after the Company submits to JEDI statements therefor, for all reasonable and necessary out-of-pocket fees and expenses (including, without limitation, all reasonable fees and expenses of counsel, accountants, financial institutions, experts and consultants) incurred in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, and all other matters related to the consummation of the transactions contemplated hereby up to a maximum amount of $750,000 (exclusive of any expenses and fees specifically agreed to by the Company and JEDI and incurred in connection with any proposed placement of subordinated debt to finance or refinance the transactions contemplated hereby). A payment under this Section 12.3(c) shall not limit the Company's right to pursue all other available remedies if Sub or JEDI has breached this Agreement, although the Company shall not be permitted to recover such fees and expenses more than once. (d) In addition to any amounts payable pursuant to Section 12.3(b), if this Agreement is terminated for any reason other than a termination by Sub pursuant to Section 11.1(b), (h) or (i) or by the Company pursuant to Section 11.1(c), then if (i) a Terminating Other Acquisition Transaction is consummated or (ii) an Other Acquisition Transaction that provides a better value to the holders of Company Common Stock than the Merger would have provided is consummated prior to the first anniversary of the date of this Agreement, then the Company shall pay to ~~Parent~~ Sub, by wire transfer of immediately available funds to an account designated by Sub, $3.5 million not later than the ~~Expense Payment; (i~~second business day following such consummation. A payment under this Section 12.3(d) ~~provided, however,~~ shall not limit Sub's right to pursue all other available remedies if the ~~only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the~~ Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has ~~been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates~~ breached this Agreement~~, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000~~. (ce) If (i) prior to the termination of this Agreement, any person (other than Sub or any affiliate thereof) or group (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of more than 20% or more of the outstanding Company Common Stock; (ii) either this Agreement is terminated ~~by Parent or the Company~~ pursuant to Section ~~9.1(b~~11.1(f) or ~~Section 9.1(d), (ii) at~~ such beneficial owner takes any action to oppose or ~~prior to~~ prevent the ~~time~~ consummation of the ~~termination of~~ Merger and this Agreement ~~an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made,~~ is terminated for any reason; and (iii) ~~on or prior to 12 months after the date of such termination, either~~ an Other Acquisition Transaction is consummated ~~or a definitive agreement relating to an Acquisition Transaction is entered into~~within one calendar year of the date of the Company Meeting, then the Company shall pay to ~~Parent~~ Sub, by wire transfer of immediately available funds to an account designated by Sub $3.5 million plus all out-of-pocket fees and expenses (of the ~~Expense Payment~~ type referred to in Section 12.3(b) and ~~a non-refundable fee in the amount of $600,000 (the “Fee”) in cash on or prior~~ subject to the ~~earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this~~ limitations set forth in Section ~~9.3(b~~12.3(b)~~, all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d~~) If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within not later than two business days after ~~such termination. (g~~Sub submits to the Company a request therefore. Notwithstanding the foregoing, no payment shall be required under Sections 12.3(b) ~~Each party acknowledges and agrees that~~ or 12.3(d), if the ~~covenants and obligations contained in~~ payment specified by this Section ~~9.3 are an integral part of the Transactions~~12.3(e) has been made to Sub, and ~~that, without these covenants~~ no payment shall be required under this Section 12.3(e) if the payments specified by Sections 12.3(b) and ~~obligations, such party would~~ (d) have been made to Sub. A payment under this Section 12.3(e) shall not ~~have entered into~~ limit Sub's right to pursue all other available remedies if the Company has breached this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Appears in 1 contract

Samples: Merger Agreement (Coda Energy Inc)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~7.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated; provided, however, that if this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d), then the Company shall make a nonrefundable cash payment to Parent, at the time specified in the next sentence, in an amount equal to the lesser of (i) $3,500,000 or (ii) the aggregate amount of all reasonable and documented out-of-pocket fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) actually incurred by or on behalf of Parent on or prior to the date of such termination in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger (such lesser amount, herein, the “Expense Level Fee”). Any nonrefundable payment required to be made pursuant to the proviso to the preceding sentence shall be made by the Company within two Business Days from the date on which Parent provides the Company with appropriate documentation of such fees and expenses. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~7.1(d) ~~or Section 9.1(d), (ii)~~ and at or prior to the time of the termination of this ~~Agreement~~ Agreement: (i) the commencement, submission or making of an Acquisition Proposal shall have been ~~disclosed,~~ publicly disclosed or announced~~, commenced, submitted~~ ; (ii) such Acquisition Proposal shall not have been publicly withdrawn as of the date five Business Days prior to the date of the Company Stockholders Meeting (as it may have been adjourned or ~~made,~~ postponed) and (iii) on or prior to ~~12 months after~~ the day 270 days following the date of ~~such termination~~the termination of this Agreement, ~~either~~ the Company consummates an Acquisition Transaction ~~is consummated~~ or executes a definitive agreement ~~relating to~~ contemplating an Acquisition ~~Transaction is entered into,~~ Transaction; then the Company shall pay to ~~Parent the Expense Payment and a non-refundable fee in the amount of $600,000 (the “Fee”)~~ Parent, in cash ~~on or prior to~~ at the ~~earlier of~~ time the ~~date of consummation of such~~ Acquisition Transaction or is consummated, the ~~date of execution of such definitive agreement~~Company Termination Fee; provided, however, ~~that, solely for purposes of this~~ that if Parent shall have previously received a nonrefundable payment from the Company pursuant to Section ~~9.3(b~~7.3(a), ~~all references~~ then the amount of the Company Termination Fee payable pursuant to ~~“15%” in the definition of “Acquisition Transaction”~~ this sentence shall be ~~deemed to refer instead to “50%~~reduced by the amount of such Expense Level Fee paid.” (dc) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e),~~ 7.1(e) or ~~if this Agreement is terminated~~ by ~~Parent or~~ the Company pursuant to ~~any other provision of~~ Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f7.1(h), then the Company shall pay to Parent, in cash at the time specified in the next sentence, the Company Termination Fee. In the case of termination of this Agreement by Parent ~~the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid~~ pursuant to ~~this~~ Section ~~9.3~~ 7.1(e), the fee referred to in the preceding sentence shall be paid ~~and made~~ by the Company within two ~~business days~~ Business Days after such termination, and in the case of termination of this Agreement by the Company pursuant to Section 7.1(h), the fee referred to in the preceding sentence shall be paid by the Company at or prior to the time of such termination. (gd) If this Agreement is terminated by the Company pursuant to Section 7.1(g) and at the time of such termination the conditions set forth in Sections 6.1 and 6.2 (other than Section 6.2(c)) have been satisfied, then Parent shall pay the Company the Parent Termination Fee as promptly as possible (but in any event within two Business Days) following such termination by the Company. 52 (e) Each ~~party~~ of the Company, Parent and Merger Sub acknowledges ~~and agrees~~ that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 7.3 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, ~~and that,~~ that without these ~~covenants~~ agreements the Company, Parent and ~~obligations, such party~~ Merger Sub would not have entered into this Agreement~~. (h)~~ , and that any amounts payable pursuant to this Section 7.3 do not constitute a penalty. If ~~either party~~ the Company fails to pay ~~when~~ as directed in writing by Parent any amounts due ~~any amount payable under~~ to Parent or Merger Sub pursuant to this Section ~~9.3~~7.3 within the time periods specified in Section 7.3 or Parent fails to pay the Company any amounts due to the Company pursuant to this Section 7.3 within the time periods specified in this Section 7.3, ~~then: (i) such party~~ the Company or Parent, as applicable, shall ~~reimburse~~ pay the ~~other party for all~~ costs and expenses (including reasonable legal fees and ~~disbursements of counsel~~expenses) incurred by Parent or the Company, as applicable, in connection with any action, including the ~~collection~~ filing of any lawsuit, taken to collect payment of such ~~overdue amount and the enforcement by the other party of its rights under this Section 9.3; and (ii) the first party shall pay to the other party~~ amounts, together with interest on such ~~overdue amount (for~~ unpaid amounts at the prime lending rate prevailing during such period ~~commencing~~ as of published in The Wall Street Journal, calculated on a daily basis from the date such ~~overdue amount was originally~~ amounts were required to be paid ~~and ending on~~ until the date ~~such overdue amount is actually paid~~ of actual payment. Notwithstanding anything to the ~~other party~~ contrary in ~~full) at a rate per annum 500 basis points over~~ this Agreement, in no event shall Parent, Merger Sub, the ~~“prime rate” (as announced by Bank of America, N.A.~~ Guarantor or any ~~successor thereto~~of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents in the aggregate be subject to liability in excess of the Parent Termination Fee (exclusive of any amounts payable pursuant to the second sentence of this Section 7.3(e)) for all damages arising from or in ~~effect on~~ connection with breaches by Parent and Merger Sub of their representations, warranties, covenants and agreements contained in this Agreement and the ~~date such overdue amount was originally required~~ transactions contemplated hereby, including for any loss suffered as a result of the failure of the Merger to be ~~paid~~consummated, under any theory or for any reason, and upon payment of such amount in full by Parent or the Guarantor, none of Parent, Merger Sub, the Guarantor or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Catalina Marketing Corp/De)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~9.03, all fees and expenses incurred in connection with the preparation, negotiation and performance of this Agreement and the ~~Transactions~~ consummation of the transactions contemplated by this Agreement shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Transaction is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with the filing by the parties hereto of the premerger notification and report forms relating to the Transaction under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation. (b) If If, but only if, this Agreement is ~~terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment;~~ terminated: (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (iix) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~9.01(b) ~~or Section 9.1(d),~~ and (iiy) ~~at or~~ (A) an Acquisition Proposal has been made to the Company after the date hereof and has not been withdrawn prior to the ~~time~~ termination of this Agreement and (B) within 12 months of the termination of this ~~Agreement~~ Agreement, the Company (1) enters into a definitive agreement for the consummation of an Acquisition Proposal ~~shall have been disclosed, announced, commenced, submitted~~ and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within the 12-month period) or ~~made, and~~ (~~iii~~2) ~~on or prior to 12 months after the date of such termination, either~~ consummates an Acquisition ~~Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into~~Proposal, then the Company shall ~~pay~~ pay, or cause to be paid, to Parent the ~~Expense Payment and a non-refundable fee in~~ Company Termination Fee concurrently with the ~~amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of~~ consummation of such ~~Acquisition Transaction or~~ transaction if such consummation takes place on a Business Day, and on the ~~date of execution of such definitive agreement;~~ next Business Day if the consummation takes place on a day other than a Business Day (provided, however, ~~that, solely~~ that for purposes of this Section ~~9.3(b~~9.03(b)(i), ~~all~~ the references to “15%” in the definition of “Acquisition ~~Transaction”~~ Proposal shall be deemed to ~~refer instead~~ be references to “50%.”); (dii) ~~If this Agreement is terminated by Parent pursuant to Section 9.1(e), or if this Agreement is terminated~~ (x) by Parent or the Company pursuant to ~~any other provision of~~ Section ~~9.1 at any time~~ 9.01(e) and (y) (A) an Acquisition Proposal has been made to the Company after the ~~occurrence~~ date hereof and has not been withdrawn prior to the date of the Company Stockholders Meeting (including any adjournments and postponements thereof), (B) such Acquisition Proposal was publicly disclosed prior to the date of the Company Stockholders Meeting (including any adjournments and postponements thereof) and (C) within 12 months of the termination of this Agreement, the Company (1) enters into a ~~Triggering Event~~definitive agreement for the consummation of an Acquisition Proposal and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within the 12-month period) or (2) consummates an Acquisition Proposal, then the Company shall ~~pay~~ pay, or cause to be paid, to Parent the Company Termination Fee concurrently with the consummation of such transaction if such consummation takes place on a Business Day, and on the ~~Expense Payment in cash.~~ next Business Day if the consummation takes place on a day other than a Business Day (~~e) If~~ provided, however, that for purposes of this ~~Agreement is terminated by Parent pursuant to~~ Section ~~9.1(f~~9.03(b)(ii), ~~then~~ the ~~Company~~ references to “15%” in the definition of Acquisition Proposal shall ~~pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required~~ be deemed to be ~~paid pursuant~~ references to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable under this Section 9.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section 9.3“50%”); and (ii) the first party shall pay to the other party 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 the other party in full) at a rate per annum 500 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.or

Appears in 1 contract

Samples: Merger Agreement (Avago Technologies LTD)

Expenses; Termination Fees. (a) Except as ~~set forth~~ otherwise provided in this Section ~~9.2~~7.3 and except for (i) the expenses in connection with printing and mailing the Joint Proxy Statement and the Form S-4 required in connection with the actions specified in Section 5.3, (ii) all SEC filing fees relating to the Transactions and (iii) the filing fees in connection with the approvals required under Section 6.1(e) related to the Transactions (each of which fees and expenses shall be borne, in each case, equally by Omnicom and IPG), all fees and expenses incurred ~~in connection with this Agreement~~ by the parties shall be borne solely by the party that has incurred such fees and ~~the Transactions~~ expenses and all such fees and expenses shall be paid by the applicable responsible party ~~incurring such fees and expenses, whether or not~~ concurrently with the ~~Merger is consummated~~Closing. (b) If this Agreement is terminated by ~~Parent~~ Omnicom pursuant to Section ~~9.1(b~~7.1(d)(ii) (or pursuant to any other provision of Section 7.1 at a time when Omnicom would have been entitled to terminate this Agreement pursuant to Section 7.1(d)(ii)), then ~~the Company~~ IPG shall pay to ~~Parent~~ Omnicom $439,000,000 (the ~~Expense Payment;~~ “IPG Termination Fee”) no later than two (i2) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of Business Days following such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000termination. (c) (x) If ~~(i)~~ this Agreement is terminated ~~by Parent or the Company~~ (A) pursuant to Section ~~9.1(b~~7.1(b)(iii) or pursuant to Section ~~9.1(d~~7.1(d)(i), and (iiy) ~~at or prior to the time of the termination of this Agreement an Acquisition~~ in any such case a Competing Proposal shall have been ~~disclosed~~publicly announced (and not withdrawn) after the date of this Agreement and prior to the date of the IPG Stockholders Meeting, ~~announced~~in the case of clause (A), ~~commenced~~or the date of termination, ~~submitted or made~~in the case of clause (B), and (~~iii~~z) ~~on or prior to 12~~ if within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction~~ a transaction in respect of a Competing Proposal is consummated or IPG enters into a definitive agreement ~~relating to an Acquisition Transaction is entered into~~in respect of a Competing Proposal, then ~~the Company~~ IPG shall pay to ~~Parent~~ Omnicom the ~~Expense Payment and a non-refundable fee in~~ IPG Termination Fee, less any Expenses previously paid, no later than three (3) Business Days following the ~~amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of~~ consummation of such ~~Acquisition Transaction or the date of execution of such definitive agreement~~transaction; provided~~, however~~, that, solely for purposes of this Section ~~9.3(b~~7.3(c), the term “Competing Proposal” shall have the meaning ascribed thereto in Section 5.4(g)(i), except that all references to “15~~%” in the definition of “Acquisition Transaction”~~ % shall be ~~deemed~~ changed to ~~refer instead to “~~50%.” (d) If this Agreement is terminated by ~~Parent~~ IPG pursuant to Section ~~9.1(e),~~ 7.1(c)(ii) (or ~~if this Agreement is terminated by Parent or the Company~~ pursuant to any other provision of Section ~~9.1~~ 7.1 at ~~any~~ a time ~~after the occurrence of a Triggering Event~~when IPG would have been entitled to terminate this Agreement pursuant to Section 7.1(c)(ii)), then ~~the Company~~ Omnicom shall pay to ~~Parent~~ IPG $676,000,000 (the ~~Fee and the Expense Payment in cash~~“Omnicom Termination Fee”) no later than three (3) Business Days following such termination. (e) (x) If this Agreement is terminated ~~by Parent~~ (A) pursuant to Section ~~9.1(f~~7.1(b)(iv) or (B) pursuant to Section 7.1(c)(i), and (y) in any such case a Competing Proposal shall have been publicly announced (and not withdrawn) after the date of this Agreement and prior to the date of the Omnicom Stockholders Meeting, in the case of clause (A), or the date of termination, in the case of clause (B), and (z) if within twelve (12) months after the date of such termination, a transaction in respect of a Competing Proposal is consummated or Omnicom enters into a definitive agreement in respect of a Competing Proposal, then ~~the Company~~ Omnicom shall pay to ~~Parent~~ IPG the ~~Expense Payment~~Omnicom Termination Fee, less any Expenses previously paid, no later than three (3) Business Days following the consummation of such transaction; provided, that, solely for purposes of this Section 7.3(e), the term “Competing Proposal” shall have the meaning ascribed thereto in Section 5.4(g)(i), except that all references to 15% shall be changed to 50%. (f) ~~Unless otherwise provided in~~ If either Omnicom or IPG terminates this Agreement pursuant to Section ~~9.3~~7.1(b)(iii) and at the time of such termination the Omnicom Stockholders Meeting has been held and the Omnicom Stockholder Approval was obtained, ~~any fee required~~ then IPG shall pay or cause to be paid ~~pursuant~~ to ~~this Section 9.3 shall be paid and made within two business days~~ Omnicom the Expenses of IPG no later than three (3) Business Days after such termination. (g) ~~Each party acknowledges~~ If either Omnicom or IPG terminates this Agreement pursuant to Section 7.1(b)(iv) and ~~agrees~~ at the time of such termination the IPG Stockholders Meeting has been held and the IPG Stockholder Approval was obtained, then Omnicom shall pay or cause to be paid to IPG the Expenses of Omnicom no later than three (3) Business Days after such termination. (h) Any IPG Termination Fee, Omnicom Termination Fee or Expenses due under this Section 7.3 shall be paid by wire transfer of immediately available funds. (i) The parties each agree that the ~~covenants and obligations~~ agreements contained in this Section ~~9.3~~ 7.3 are an integral part of the Transactions, and that, without these ~~covenants and obligations~~agreements, ~~such party~~ the parties would not ~~have entered~~ enter into this Agreement~~. (h) If either~~ . Accordingly, if a party fails to pay ~~when~~ any amounts due ~~any amount payable~~ under this Section ~~9.3~~7.3 and, ~~then: (i)~~ in order to obtain such payment, IPG or Omnicom, as the case may be, commences a suit that results in a judgment against such party for such amounts, such party shall ~~reimburse~~ pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate equal to the prime rate published in the Wall Street Journal for the relevant period, together with the costs and expenses of the other party ~~for all costs and expenses~~ (including reasonable legal fees and ~~disbursements of counsel~~expenses) ~~incurred~~ in connection with such suit. For the ~~collection~~ avoidance of doubt, in no event shall IPG be required to pay the IPG Termination Fee, nor shall Omnicom be required to pay the Omnicom Termination Fee, on more than one occasion. Notwithstanding anything to the contrary in this Agreement, in the event that the Omnicom Termination Fee or IPG Termination Fee is payable and actually paid to Omnicom or IPG in accordance with this Section 7.3, payment of such ~~overdue amount~~ Omnicom Termination Fee or IPG Termination Fee, as applicable, shall be the sole and exclusive remedy of the ~~enforcement by the~~ non-terminating party and its respective affiliates against any other party or such other party’s stockholders, directors, officers, affiliates and other Representatives, for any loss or damage based upon, arising out of ~~its rights under~~ or relating to this ~~Section 9.3;~~ Agreement or the negotiation, execution or performance hereof or the Transactions contemplated hereby, except in the case of Willful and ~~(ii)~~ Material Breach or fraud. Solely for purposes of establishing the ~~first party shall pay to the other party interest on such overdue amount (~~basis for the ~~period commencing as~~ amount thereof, and without in any way increasing the amount of the ~~date such overdue amount was originally required~~ Omnicom Termination Fee or IPG Termination Fee, expanding the circumstances in which the Omnicom Termination Fee or IPG Termination Fee are to be paid ~~and ending on~~ or restricting or modifying the ~~date~~ other rights of any party hereunder, in the event of the valid termination of this Agreement under circumstances in which the Omnicom Termination Fee or IPG Termination Fee are payable pursuant to this Section 7.3, it is agreed that each of such ~~overdue~~ amount is ~~actually paid to~~ liquidated damages, and not a penalty, and the ~~other party~~ payment thereof in ~~full) at~~ such circumstances is supported by due and sufficient consideration; provided, that no payment of the Omnicom Termination Fee or IPG Termination Fee shall be considered in lieu of, or a ~~rate per annum 500 basis points over~~ replacement or substitution for, damages incurred in the ~~“prime rate” (as announced by Bank~~ event of ~~America, N.A.~~ Willful and Material Breach or ~~any successor thereto) in effect on the date such overdue amount was originally required to be paid~~fraud.

Appears in 1 contract

Samples: Merger Agreement (Omnicom Group Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~13.3, all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated by this Agreement shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Closing is consummated.; provided, however, that: (bi) If Buyer and the Seller shall share equally the filing fees incurred in connection with the filing by the Parties hereto of any notice or other document under any applicable antitrust law; and (ii) Seller shall make a nonrefundable cash payment to Buyer, in an amount equal to the aggregate amount of all reasonable fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Buyer in connection with the preparation and negotiation and performance of this Agreement (the "Expense Reimbursement") if this Agreement is terminated (A) by ~~Parent~~ Buyer or the Seller pursuant to Section ~~9.1(b)~~13.1(b) and on or before the date of any such termination, then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been ~~disclosed~~publicly announced or disclosed or an Acquisition Proposal has otherwise been communicated to the Seller Board, ~~announced, commenced, submitted~~ or ~~made, and~~ (~~iii~~B) on by Buyer or the Seller pursuant to Section 13.1(d) or (C) by Buyer pursuant to either Section 13.1(e) or Section 13.1(f). Any Expense Reimbursement required to be made (A) as the result of a termination of this Agreement by the Seller pursuant to Section 13.1(b) or Section 13.1(d) shall be paid by the Seller prior to ~~12 months after~~ the ~~date~~ time of such termination~~, either an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into, then~~ ; and (B) as the ~~Company shall pay to Parent the Expense Payment and a non-refundable fee in the amount~~ result of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes termination of this ~~Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%.” (d) If this~~ Agreement ~~is terminated~~ by ~~Parent~~ Buyer pursuant to Section ~~9.1(e~~13.1(b), ~~or if this Agreement is terminated by Parent or the Company pursuant to any other provision of~~ Section 9.1 at any time after the occurrence of a Triggering Event, then the Company shall pay to Parent the Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f13.1(d), ~~then the Company shall pay to Parent the Expense Payment. (f~~Section 13.1(e) ~~Unless otherwise provided in this~~ or Section ~~9.3, any fee required to be paid pursuant to this Section 9.3~~ 13.1(f) shall be paid ~~and made~~ by the Seller within two ~~business days~~ Business Days after such termination. (gb) ~~Each party acknowledges~~ The Seller agrees to pay Buyer (or its designees) an amount equal to US$60,000 (the "Termination Fee") if this Agreement is terminated: (i) by Buyer pursuant to Section 13.1(e); (ii) by Buyer or the Seller pursuant to Section 13.1(b) or by Buyer pursuant to Section 13.1(f) and, in either case, (x) on or before the date of any such termination an Acquisition Proposal shall have been announced, disclosed or otherwise communicated to the Seller Board, and ~~agrees that~~ (y) a definitive agreement is entered into by the ~~covenants and obligations contained in this Section 9.3 are~~ Seller with respect to an ~~integral part~~ Acquisition Transaction or an Acquisition Transaction is consummated within 18 months of such termination of the ~~Transactions~~Agreement; (iii) by Buyer or the Seller pursuant to Section 13.1(d) and (x) on or before the date of the Seller Stockholders' Meeting by the Required Stockholder Vote an Acquisition Proposal shall have been announced, disclosed or otherwise communicated to the Seller Board, and ~~that, without these covenants and obligations, such party would not have~~ (y) a definitive Agreement is entered into ~~this~~ by the Seller with respect to an Acquisition Transaction or an Acquisition Transaction is consummated within 18 months of such termination of the Agreement; or (iv) by any Party at any time during which the Agreement was otherwise terminable in a circumstance in which Buyer would be entitled to payment of the Termination Fee pursuant to Section 13.3(b)(i), (ii) or (iii). (hc) Any Termination Fee required to be paid (i) pursuant to Section 13.3(b)(i) shall be paid within two Business Days after termination by Buyer, (ii) pursuant to Section 13.3(b)(ii) or (iii) shall be paid within two Business Days after the event giving rise to such payment, and (iii) pursuant to Section 13.3(b)(iv), at the time such fee would be payable pursuant to Section 13.3(b)(i), (ii) or (iii), as applicable. (d) If ~~either party~~ the Seller fails to pay when due any amount payable under this Section ~~9.3~~13.3, ~~then:~~ then (i) ~~such party~~ the Seller shall reimburse ~~the other party~~ Buyer for all costs and expenses (including fees ~~and disbursements~~ of counsel) incurred in connection with the ~~collection of such overdue amount and the~~ enforcement by ~~the other party~~ Buyer of its rights under this Section ~~9.3;~~ 13.3, and (ii) the ~~first party~~ Seller shall pay to ~~the other party~~ 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 ~~the other party~~ Buyer in full) at a rate per annum ~~500 basis points~~ equal to 3% over the “"prime rate” " (as announced by ~~Bank of America~~the Wall Street Journal or, ~~N.A. or any successor thereto~~in the event the Wall Street Journal is no longer published, a comparable publication) in effect on the date such overdue amount was originally required to be paid. (e) The Parties acknowledge that the agreements contained in this Section 13.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement. Payment of the fees and expenses described in this Section 13.3 shall not be in lieu of liability pursuant to Section 13.2(b).

Appears in 1 contract

Samples: Asset Purchase Agreement (Inksure Technologies Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2,~~ 9.3 all fees and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated hereby shall be paid by the party incurring such ~~fees and~~ expenses, whether or not the Merger is consummated, provided however, that the Company shall pay the fees associated with the Nasdaq Listing Application and any filing fees pursuant to Section 7.4(a) and Section 7.4(b) and Parent shall pay, among other things, all other costs, fees, and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. (b) If this Agreement is terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment; (i) provided, however, if the only if as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment; (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section ~~9.1(b~~9.1(e) or by the Company pursuant to Section ~~9.1(d~~9.1(h), (ii) at or any time after the date of this Agreement and prior to the ~~time of the termination of this Agreement~~ Parent Stockholder Meeting an Acquisition Proposal with respect to Parent shall have been ~~disclosed,~~ publicly announced, ~~commenced, submitted~~ disclosed or ~~made,~~ otherwise communicated to the Parent Board (and shall not have been withdrawn) and (iii) ~~on or prior to 12~~ within twelve (12) months after the date of such termination, ~~either an Acquisition Transaction is consummated or~~ Parent enters into a definitive agreement ~~relating~~ with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Parent shall pay the Company, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $7,500,000 (the “Termination Fee” ). If this Agreement is terminated by the Company pursuant to Section 9.1(f) (or, at the time this Agreement is terminated, the Company had the right to terminate this Agreement pursuant to Section 9.1(f)), then Parent shall pay to the Company, within five (5) Business Days of such termination the Termination Fee. (c) If (i) this Agreement is terminated by Parent pursuant to Section 9.1(d) or Section 9.1(i), (ii) at any time after the date of this Agreement and before obtaining the Company Stockholder Approval, an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction ~~is entered into~~or consummates a Subsequent Transaction, then the Company shall pay to ~~Parent the Expense Payment and~~ Parent, upon such entry into a ~~non-refundable fee in the~~ definitive agreement and/or consummation of a Subsequent Transaction, an amount ~~of $600,000 (the “Fee”) in cash on or prior~~ equal to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of such definitive agreement; provided, however, that, solely for purposes of this Section 9.3(b), all references to “15%” in the definition of “Acquisition Transaction” shall be deemed to refer instead to “50%Termination Fee.” (d) If this Agreement is terminated by Parent pursuant to Section ~~9.1(e)~~9.1(g) (or, ~~or if~~ at the time this Agreement is ~~terminated by~~ terminated, Parent or had the ~~Company~~ right to terminate this Agreement pursuant to ~~any other provision of~~ Section ~~9.1 at any time after the occurrence of a Triggering Event~~9.1(g)), then ~~the~~ Company shall pay to ~~Parent~~ Parent, within five (5) Business Days of such termination the ~~Fee and the Expense Payment in cash~~Termination Fee. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section 9.3 shall be paid and made within two business days after such termination. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (h) If either party fails to pay when due any amount payable by it under this Section 9.3, ~~then:~~ then (i) such party shall reimburse the other party for ~~all~~ reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other party of its rights under this Section ~~9.3;~~ 9.3 and (ii) ~~the first~~ such party shall pay to the other party 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 the other party in full) at a rate per annum ~~500 basis points over~~ equal to the “prime rate” (as announced by Bank of ~~America, N.A.~~ America or any successor thereto) in effect on the date such overdue amount was originally required to be ~~paid~~paid plus three percent. (f) The parties agree that, subject to Section 9.2, the payment of fees and expenses set forth in this Section 9.3 shall be the sole and exclusive remedy of each party following a termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall either Parent or the Company be required to pay the individual fees or damages payable pursuant to this Section 9.3 on more than one occasion. Subject to Section 9.2, following the payment of the fees and expenses set forth in this Section 9.3 by a party, (i) such party shall have no further liability to the other party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other party giving rise to such termination, or the failure of the transactions contemplated hereby to be consummated, (ii) no other party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such party or seek to obtain any recovery, judgment or damages of any kind against such party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such party) in connection with or arising out of this Agreement or the termination thereof, any breach by such party giving rise to such termination or the failure of the transactions contemplated hereby to be consummated and (iii) all other parties and their respective Affiliates shall be precluded from any other remedy against such party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such party giving rise to such termination or the failure of the transactions contemplated hereby to be consummated. Each of the parties acknowledges that (x) the agreements contained in this Section 9.3 are an integral part of the transactions contemplated hereby, (y) without these agreements, the parties would not enter into this Agreement and (z) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the parties in the circumstances in which such amount is payable; provided, however, that nothing in this Section 9.3(f) shall limit the rights of the parties under Section 10.3.

Appears in 1 contract

Samples: Merger Agreement (Graphite Bio, Inc.)

Expenses; Termination Fees. (a) Except as set forth in this Section ~~9.2~~10.3, all ~~fees~~ costs and expenses incurred in connection with this Agreement and the Contemplated Transactions (including, without limitation, the fees, costs and expenses of its advisers, accountants and legal counsel) shall be paid by the ~~party~~ Party incurring such ~~fees and~~ expenses, whether or not the ~~Merger~~ Contemplated Transactions are consummated; provided however that the Company shall make a nonrefundable cash payment to the Purchaser, in an amount equal to the aggregate amount of all fees and expenses that have been paid or that may become payable by or on behalf of the Purchaser in connection with the preparation and negotiation of this Agreement, the Contemplated Transactions, and the Transaction Agreements (the “Expense Reimbursement”) if this Agreement is ~~consummated~~terminated by the Purchaser in accordance with either Section 10.1(a) or by either the Company or the Purchaser pursuant to Section 10.1(b)(iii) hereof. Any Expense Reimbursement required under this Section 10.3(a) shall be paid by the Company by wire transfer of immediately available funds to such account as the Purchaser may designate within ten (10) Business Days after such termination by the Purchaser. Notwithstanding the foregoing, in no event shall the Company be obligated to make any Expense Reimbursements in excess of $500,000 in the aggregate under this Section 10.3(a); and provided further that, in no event shall the Company be required to make any Expense Reimbursements under this Section 10.3(a) following any termination of this Agreement pursuant to Section 10.1(b)(iii) hereof if on or before the date of the Company Stockholders Meeting Parent shall not have received the Chinese Government Approvals or any such Chinese Government Approvals shall have been denied. (b) If The Company agrees to pay the Purchaser (or its designees) $860,000 (the “Termination Fee”) if this Agreement is ~~terminated by Parent pursuant to Section 9.1(b), then the Company shall pay to Parent the Expense Payment;~~terminated: (i) ~~provided, however, if~~ by the ~~only if as of the End Date all of the conditions~~ Purchaser pursuant to ~~the Closing in ARTICLE 7 have been satisfied or waived except those set forth in Sections 7.7 or 7.16, the Company shall not be required to pay to Parent the Expense Payment~~Section 10.1(b)(iv); (ii) provided, further, however, if (i) as of the End Date all of the conditions to the Closing in ARTICLE 7 have been satisfied or waived except there is a Legal Proceeding described in clause (b) of Section 7.8 pending or threatened (or any other conditions of ARTICLE 7 have not been satisfied solely as a result of such Legal Proceeding and would be immediately satisfied if such Legal Proceeding did not exist, was settled or otherwise dismissed), (ii) the claim(s) with respect to such Legal Proceeding has been timely and duly reported to the carrier for the Company’s directors and officers and/or errors and omissions insurance and (iii) Parent terminates this Agreement, the Company shall not pay to Parent the Expense Payment and Parent shall pay to the Company $400,000. (c) If (i) this Agreement is terminated by ~~Parent or~~ the Company pursuant to Section ~~9.1(b~~10.1(b)(vii); (iii) or by either Party pursuant to Section ~~9.1(d)~~10.1(d) and, (iiA) at on or ~~prior to~~ before the ~~time~~ date of ~~the~~ any such termination ~~of this Agreement~~ an Acquisition Proposal shall have been publicly announced or disclosed~~, announced, commenced, submitted or made~~, and (~~iii~~B) on a definitive agreement is entered into by the Company with respect to an Acquisition Transaction or ~~prior to 12 months after the date of such termination, either~~ an Acquisition Transaction is consummated within twelve (12) months of such termination of the Agreement; or (iv) by either Party pursuant to Section 10.1(b)(iii) and (A) on or before the date of the Company Stockholders Meeting an Acquisition Proposal shall have been publicly announced or disclosed, and (B) a definitive agreement ~~relating~~ is entered into by the Company with respect to an Acquisition Transaction or an Acquisition Transaction is ~~entered into, then~~ consummated within twelve (12) months of such termination of the Agreement. (c) Any Termination Fee required to be paid pursuant to any of Sections 10.3(b)(i)-(iii) shall be paid by the Company ~~shall pay~~ by wire transfer of immediately available funds to ~~Parent~~ such account as the ~~Expense Payment and a non-refundable fee in~~ Purchaser may designate within ten (10) Business Days after termination by the ~~amount of $600,000 (the “Fee”) in cash on or prior to the earlier of the date of consummation of such Acquisition Transaction~~ Purchaser or the ~~date of execution of such definitive agreement; provided~~Company, ~~however~~as the case may be, ~~that, solely for purposes of this Section 9.3(b), all references~~ and any Termination Fee required to ~~“15%” in the definition of “Acquisition Transaction” shall~~ be ~~deemed to refer instead to “50%.” (d) If this Agreement is terminated by Parent~~ paid pursuant to Section ~~9.1(e)~~10.3(b)(iv) shall be paid by the Company by wire transfer of immediately available funds to such account as the Purchaser may designate within ten (10) Business Days after the date the Company enters into a definitive agreement providing for, or ~~if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Triggering Event~~consummates, ~~then the Company shall pay to Parent the~~ such Acquisition Transaction. Any Termination Fee and the Expense Payment in cash. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(f), then the Company shall pay to Parent the Expense Payment. (f) Unless otherwise provided in this Section 9.3, any fee required to be paid pursuant to this Section ~~9.3~~ 10.3(b) shall be ~~paid and~~ reduced by the amount of any Expense Reimbursement made ~~within two business days after such termination~~by the Company pursuant to Section 10.3(a) hereof. (g) Each party acknowledges and agrees that the covenants and obligations contained in this Section 9.3 are an integral part of the Transactions, and that, without these covenants and obligations, such party would not have entered into this Agreement. (hd) If ~~either party~~ the Company fails to pay when due any amount payable under this Section ~~9.3~~10.3, ~~then:~~ then (i) ~~such party~~ the Company shall reimburse the ~~other party~~ Purchaser for all costs and expenses (including fees ~~and disbursements~~ of counsel) incurred in connection with the ~~collection of such overdue amount and the~~ enforcement by the ~~other party~~ Purchaser of its rights under this Section ~~9.3;~~ 10.3, and (ii) the ~~first party~~ Company shall pay to the ~~other party~~ Purchaser 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 the ~~other party~~ Purchaser in full) at a rate per annum ~~500 basis points~~ equal to three-percent (3%) over the “prime rate” (as ~~announced by Bank of America, N.A. or any successor thereto~~published in The Wall Street Journal) in effect on the date such overdue amount was originally required to be paid. (e) The Parties acknowledge that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (STR Holdings, Inc.)

Common use of Expenses; Termination Fees Clause in Contracts