Expenses; Termination Fees. (a) Subject to the application of Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses. (b) If this Agreement is terminated pursuant to Section 8.1(f), then Company shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent. (c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company.
Appears in 1 contract
Samples: Merger Agreement (United Surgical Partners International Inc)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated. Notwithstanding the foregoing, the Parties shall each pay 50% of the S-4 Expenses.
(b) If this Agreement is terminated (i) by Replidyne or the Company pursuant to Section 8.1(f9.1(d) and (A) at any time before the Replidyne Stockholders’ Meeting an Acquisition Proposal with respect to Replidyne shall have been publicly announced, disclosed or otherwise communicated to the board of directors or stockholders of Replidyne and (B) within 12 months after the termination of this Agreement, Replidyne enters into any agreement for an Acquisition Transaction contemplated by such Acquisition Proposal or consummates an Acquisition Transaction contemplated by such Acquisition Proposal, or (ii) by Replidyne or the Company pursuant to Section 9.1(f), then Company shall in either case, without duplication, Replidyne shall, within 24 hours of the earlier of entering into such agreement or such consummation, in the case of (i), or termination, in the case of (ii), pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent Company a termination non-refundable fee in an amount equal to $6,000,000 (1,500,000 and reimburse the “Parent Termination Fee”) and shall reimburse Parent Company for the documented all actual out-of-pocket legal, accounting and investment advisory fees and expenses reasonably incurred paid or payable by Parent and Merger Sub the Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to ParentContemplated Transactions.
(c) If this Agreement is terminated (i) by Replidyne or the Company pursuant to Section 8.1(b9.1(e) and (A) at any time before the time of such termination all of Company Stockholders’ Meeting an Acquisition Proposal with respect to the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) Company shall have been satisfiedpublicly announced, then Parent shall disclosed or otherwise communicated to the board of directors or stockholders of the Company and (B) within 12 months after the termination of this Agreement, the Company enters into any agreement for an Acquisition Transaction contemplated by such Acquisition Proposal or consummates an Acquisition Transaction contemplated by such Acquisition Proposal, or (ii) by Replidyne or the Company pursuant to Section 9.1(g), in either case, without duplication, the Company shall, within 24 hours after the earlier of entering into such agreement or such consummation, in the case of (i), or termination, in the case of (ii), pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company Replidyne a termination non-refundable fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) 1,500,000 and shall reimburse Company Replidyne for the documented all actual out-of-pocket legal, accounting and investment advisory fees and expenses reasonably incurred paid or payable by Company Replidyne in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions.
(d) If either Party fails to pay when due any amount payable by such Party under Section 9.3, then (i) such Party shall reimburse the other Party for 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 amounts payable to banks, investment banking firms and other financial institutionsParty of its rights under this Section 9.3, and their respective agents and counsel, and all fees of counsel, accountants and consultants (ii) such Party shall pay to Company and its affiliates the other Party interest on such overdue amount (whether or not such fees and other payments are measured by or based on a percentage for the period commencing as of the Company Termination Fee or date such overdue amount was originally required to be paid and ending on the proposed aggregate Merger Considerationdate such overdue amount is actually paid to the other Party in full) up at a rate per annum equal to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice prime rate” (as announced by Bank of America or any successor thereto) in effect on or after the date on which Parent is obligated such overdue amount was originally required to pay the Company Termination Fee to Companybe paid.
Appears in 1 contract
Samples: Merger Agreement (Replidyne Inc)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement shall be paid by the party incurring such 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 Joint Proxy Statement and any amendments or supplements thereto and (B) the filing 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 Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), then, at the time specified in the next sentence, the Company shall make a nonrefundable cash payment to Parent (in addition to any other amount that may be payable pursuant to Section 8.3(b) or otherwise) in an amount equal to the aggregate amount of all fees and expenses (including all reasonable attorneys' fees, accountants' fees, financial advisory fees and filing fees up to a maximum of $2,000,000) 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; and (iii) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e), then, at the time specified in the last sentence of this Section 8.3(a), 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 reasonable attorneys' fees, accountants fees, financial advisory fees and filing fees up to a maximum of $2,000,000) 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 the Stock Option Agreement and otherwise in connection with the Merger. 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), 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 within two business days after such termination. In the case of termination of this Agreement by Parent pursuant to Section 8.1(e), the nonrefundable payment referred to in clause "(iii)" of the proviso to the first sentence of this Section 8.3(a) shall be made by Parent prior to such termination; and in the case of termination of this Agreement by the Company pursuant to Section 8.1(e), the nonrefundable payment referred to in clause "(iii)" of the proviso to the first sentence of this Section 8.3(a) shall be paid by Parent within two business days after such termination.
(b) If (i) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) and (B) at or prior to the time of such termination an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, or (ii) this Agreement is terminated by Parent pursuant to Section 8.1(f), then then, in either such case, the Company shall pay to Parent on Parent, in cash at the date time specified in the next sentence (and in addition to any payment required to be made pursuant to Section 8.3(a)), a nonrefundable fee in the amount of $16,000,000. In the case of termination of this Agreement by the Company pursuant to Section 8.1(d), the fee referred to in the preceding sentence shall be paid by the Company prior to such termination, and in the case of termination by wire transfer of immediately available funds to an account designated this Agreement by Parent a termination pursuant to Section 8.1(d) or Section 8.1(f), the fee referred to in an amount equal to $6,000,000 (the “Parent Termination Fee”) and preceding sentence shall reimburse Parent for be paid by the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not Company within two business days after such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parenttermination.
(c) If this Agreement is terminated by the Company pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j8.1(g)) shall have been satisfied, then Parent shall pay to Company on the date of Company, in cash within two business days after such termination by wire transfer of immediately available funds to an account designated by Company termination, a termination nonrefundable fee in an the amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company16,000,000.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such 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;
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.1(e) or (B) the Company pursuant to Section 8.1(f), the Company shall make a nonrefundable cash payment to Parent in an amount equal to the aggregate amount of all reasonable out-of-pocket documented fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees, debt financing commitment fees and/or expenses) that have been paid or incurred by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the transactions contemplated hereby; provided, however, that in no event shall the Company’s obligation to pay any such fees and expenses exceed $2 million in the aggregate (the “Parent Expenses”) (in addition to any additional fee payable to Parent pursuant to this Section 8.3);
(iii) if this Agreement is terminated by the Company pursuant to Section 8.1(g), the Company shall make a nonrefundable cash payment to Parent in an amount equal to the Parent Expenses (in addition to any additional fee payable to Parent pursuant to this Section 8.3); and
(iv) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) or 8.1(d), and, 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, the Company shall make a nonrefundable cash payment to Parent in an amount equal to the Parent Expenses.
(b) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(f)8.1(b) or Section 8.1(d) and, then Company shall pay to Parent on following the date of such this Agreement and at or prior to the time of the termination by wire transfer of immediately available funds this Agreement, an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and within twelve (12) months of the date of termination of this Agreement, the Company consummates an Acquisition Transaction, then the Company shall make a nonrefundable cash payment to an account designated by Parent a termination fee in an amount equal to $6,000,000 11 million (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts addition to any amount payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants Parent pursuant to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”Section 8.3(a). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent).
(c) If this Agreement is terminated by (A) Parent pursuant to Section 8.1(b8.1(e) and at or (B) the time Company pursuant to Section 8.1(f), then the Company shall make a nonrefundable cash payment to Parent in an amount equal to (i) if notice of such termination all of the conditions is delivered prior to Parent’s obligations under this Agreement May 6, 2005, $7 million (other than the condition set forth in addition to any amount payable to Parent pursuant to Section 7.2(j8.3(a)) shall have been satisfied, then Parent shall pay to Company on the date and (ii) if notice of such termination is delivered on or after May 6, 2005, $11 million (in addition to any amount payable to Parent pursuant to Section 8.3(a)). Nothing herein will obligate Parent to provide a notice of termination prior to May 6, 2005.
(d) If this Agreement is terminated by wire transfer of immediately available funds the Company pursuant to an account designated by Section 8.1(g), then the Company shall make a termination fee nonrefundable cash payment to Parent in an amount equal to $6,000,000 5.5 million (in addition to any amount payable to Parent pursuant to Section 8.3(a)).
(e) If this Agreement is terminated by the “Company Termination Fee” pursuant to Section 8.1(g), and within twelve (12) months of the date of termination of this Agreement, the Company consummates an Acquisition Transaction, then the Company shall make a nonrefundable cash payment to Parent in an amount equal to $5.5 million (in addition to any amount payable to Parent pursuant to Section 8.3(a) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with Section 8.3(d)).
(f) Any fee payable under Section 8.3(b), Section 8.3(c) or Section 8.3(d) pursuant to a termination of this Agreement and by the transactions contemplated hereby (including fees and other amounts payable Company shall be paid prior to banks, investment banking firms and other financial institutionsthe time of, and their respective agents as a condition to the effectiveness of, such termination; provided, that any fee payable pursuant to Section 8.3(b) shall be made prior to and counsel, and all fees of counsel, accountants and consultants as a condition to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage the consummation of the Company Termination Fee or applicable Acquisition Transaction. Any fee payable under Section 8.3(e) shall be made prior to and as a condition to the proposed aggregate Merger Consideration) up consummation of the applicable Acquisition Transaction. Any fee payable pursuant to an aggregate this Section 8.3 pursuant to a termination of $500,000 (the “Company Expenses”). this Agreement by Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after be paid within two (2) Business Days following the date on which notice of termination is given.
(g) The Company acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent is obligated to pay would not enter into this Agreement. The payment of any fee under Sections 8.3(b) through Section 8.3(f) or reimbursement of any Parent Expenses under Section 8.3(a), as the Company Termination Fee to Companycase may be, shall constitute liquidated damages.
Appears in 1 contract
Samples: Merger Agreement (Brookstone Inc)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions will be paid by the Party incurring such expenses, whether or not the Acquisition is consummated. Notwithstanding the foregoing, (A) Company and F-Star shall share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, incurred (i) in relation to the filings by the Parties under any filing requirement under any foreign antitrust Legal Requirement applicable to this Agreement and the Contemplated Transactions, (ii) by engagement of a proxy soliciting firm in connection with obtaining approval of the Company Stockholder Approval Matters, (iii) by engagement of the Exchange Agent and (iv) in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto; provided, however, that in no event shall F-Star be obligated to bear any such costs and expenses in excess of $50,000, and (B) F-Star shall be solely responsible for all listing fees payable to Nasdaq in connection with the listing of the shares of Company Common Stock to be issued in connection with the Acquisition and reasonable out-of-pocket expenses of Company incurred in connection therewith. Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the Contemplated Transactions, without which, the Parties would not enter into this Agreement. It is understood and agreed that all fees and expenses incurred or to be incurred by 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 Company in cash at or prior to the party incurring such expensesClosing.
(b) If Company will pay to F-Star a termination fee (the “Company Termination Fee”) in an amount in cash equal to $2,000,000, less any amounts previously paid pursuant to Section 8.3(c), in the event that this Agreement is terminated pursuant to (i) Section 8.1(f8.1(b), (ii) Section 8.1(d), (iii) Section 8.1(e), (iv) Section 8.1(i) or (v) Section 8.1(j); provided that, in the case of each of clauses (i), (ii) and (iii), an Acquisition Proposal has been publicly announced, disclosed or otherwise communicated to Company’s board of directors after the date hereof and prior to such termination and, within nine (9) months after the date of such termination, Company entered into a definitive agreement with respect to, or consummates, an Acquisition Transaction, such fee to be paid not later than two (2) Business Days after such entry into a definitive agreement or such Acquisition Transaction is consummated; provided that for purposes of this Section 8.3(b) all references in the definition of Acquisition Transaction to 20% shall instead refer to 50%. If this Agreement is terminated by F-Star pursuant to Section 8.1(i), then Company shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to ParentF-Star within two (2) Business Days following such termination.
(c) If Company shall no later than two (2) Business Days after receipt of reasonable supporting documentation evidencing such fees and expenses reimburse F-Star and Sellers for all fees and expenses (up to $750,000) incurred by F-Star and Sellers in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the Contemplated Transactions if this Agreement is terminated by either party pursuant to Section 8.1(b8.1(d).
(d) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied, then Parent shall F-Star will pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee (the “F-Star Termination Fee”) in an amount in cash equal to $6,000,000 2,000,000 in the event that this Agreement is terminated by Company pursuant to Section 8.1(k).
(e) In the “event that F-Star shall be entitled to receive the Company Termination Fee or Company shall be entitled to receive the F-Star Termination Fee” ) , such fee is not a penalty but shall be liquidated damages in a reasonable amount for any and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably all losses or damages suffered or incurred by Company F-Star and Sellers, on the one hand, Company, on the other hand, or in connection with the matter forming the basis for such termination. Notwithstanding any other provision of this Agreement to the contrary, other than as provided in this Section 8.3(e), the Parties agree that the payments contemplated by this Section 8.3 represent the sole and exclusive remedies of F-Star and Sellers, on the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutionsone hand, and their respective agents and counselCompany, and all fees on the other hand, in respect of counsel, accountants and consultants a termination pursuant to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage Section 8.1 under circumstances requiring the payment of the Company Termination Fee or the proposed aggregate Merger ConsiderationF-Star Termination Fee, as applicable; provided, that this Section 8.3(e) up shall not apply where F-Star’s right to an aggregate terminate this Agreement pursuant to Section 8.1(d), 8.1(e) or 8.1(i) results from, or Company terminates this Agreement pursuant to Section 8.1(j) following, a knowing breach by Company of $500,000 this Agreement.
(f) If Company or F-Star, as applicable, fails to pay when due any amount payable by Company or F-Star, as applicable, under this Section 8.3, then (i) Company or F-Star will, as applicable, reimburse F-Star and Sellers, on the one hand, and Company, on the other hand, 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 Parties of their rights under this Section 8.3, and (ii) Company or F-Star, as applicable, will pay to F-Star and Sellers, on the one hand, or Company, on the other hand, 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 Parties entitled thereto in full) at a rate per annum equal to the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice prime rate” (as announced by Bank of America or any successor thereto) in effect on or after the date on which Parent is obligated such overdue amount was originally required to pay the Company Termination Fee to Companybe paid.
Appears in 1 contract
Samples: Share Exchange Agreement (Spring Bank Pharmaceuticals, Inc.)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Tigris and Potomac shall share equally 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 transactions contemplated hereby; provided, further however, that Tigris and Potomac shall also share equally all fees and expenses incurred (up to a maximum of $125,000 payable by Potomac) in relation to the printing and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC.
(b) (i) If (x) this Agreement is terminated by Tigris or Potomac pursuant to Section 9.1(e) or (f), (y) at any time before the Tigris Stockholders’ Meeting an Acquisition Proposal with respect to Tigris shall have been publicly announced, disclosed or otherwise communicated to Tigris’ Board of Directors and (z) in the event this Agreement is terminated pursuant to Section 8.1(f9.1(e), then Company shall pay to Parent on within 12 months after the date of such termination by wire transfer of immediately available funds termination, Tigris enters into a definitive agreement with respect to an account designated by Parent a termination Subsequent Transaction or consummates a Subsequent Transaction, Tigris shall pay to Potomac, within ten (10) Business Days after termination, a nonrefundable fee in an amount equal to $6,000,000 6,300,000 (the “Parent Potomac Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub ), in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts addition to any amount payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated Potomac pursuant to Section 8.1(bSections 9.3(c) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(jor 9.3(e)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company.;
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party incurring such 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’ and accountant’s fees, incurred in connection with (A) the filing, printing and mailing of the Form F-4 Registration Statement and the 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; and
(ii) if this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d) and, 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 (which shall not have been withdrawn prior to termination of this Agreement by the Company or Parent), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 9.3(c)) the 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, filing fees and printing and mailing expenses) 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 each Stockholder Agreement and otherwise in connection with the Contemplated Transactions or its consideration of the Contemplated Transactions; provided that the aggregate amount of such fees and expenses shall not exceed $2,000,000 and such amounts shall be credited against any fees payable to Parent pursuant to Sections 9.3(b) and 9.3(c).
(b) If (i) a Material Adverse Effect occurs in relation to the Acquired Corporations, (ii) such Material Adverse Effect is not cured and (iii) this Agreement is subsequently terminated pursuant to Section 8.1(f)9.1(b) and, then Company shall pay to Parent on at the date of termination, such termination by wire transfer of immediately available funds Material Adverse Effect has not been cured, then the Company shall make a nonrefundable cash payment to an account designated by Parent a termination fee Parent, within two business days after such termination, in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket aggregate amount of all fees and expenses reasonably incurred (including all attorneys’ fees, accountants’ fees, financial advisory fees, filing fees and printing and mailing expenses) that have been paid or that may become payable by or on behalf of Parent and Merger Sub in connection with the preparation and negotiation of this Agreement and each Stockholder Agreement and otherwise in connection with the transactions contemplated hereby (including fees Contemplated Transactions or its consideration of the Contemplated Transactions that were incurred during that period commencing on the date of the occurrence of the Material Adverse Effect and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees ending on the date of counsel, accountants and consultants to Parent and its affiliates (whether or not termination of this Agreement; provided that the aggregate amount of such fees and other payments are measured by or based on a percentage of the expenses shall not exceed $2,000,000 and such amounts shall be credited against any fees payable to Parent Termination Fee or the proposed aggregate Merger Considerationpursuant to Sections 9.3(a)(ii) up to an aggregate of $500,000 (the “Parent Expenses”and 9.3(c). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement If: (other than the condition set forth in Section 7.2(ji)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Opexa and Acer shall share equally 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 Opexa and Acer shall also share equally all fees and expenses (i) incurred in relation to the filing of the NASDAQ Listing Application with NASDAQ, (ii) by engagement of the Exchange Agent and (iii) in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto.
(b) (i) If (A) this Agreement is terminated by Opexa or Acer pursuant to Section 9.1(e) or by Acer pursuant to Section 9.1(f), (B) at any time before the date of termination an Acquisition Proposal with respect to Opexa has been publicly announced or disclosed or otherwise communicated by the Opexa Board of Directors to the Opexa Shareholders, and (C) in the event this Agreement is terminated pursuant to Section 8.1(f9.1(e), then Company shall pay to Parent on within twelve (12) months after the date of such termination, Opexa enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Opexa shall pay to Acer, within ten (10) Business Days after termination by wire transfer (or, if applicable, upon the earlier of immediately available funds such entry into a definitive agreement with respect to an account designated by Parent a termination Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $6,000,000 250,000 (the “Parent Acer Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub ), in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts addition to any amount payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated Acer pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j9.3(e)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, further, that Cellect shall pay for all fees and expenses incurred by engagement of the Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Proxy Statement (including any financial statements and exhibits) and any amendments or supplements thereto.
(b) If this Agreement is terminated pursuant to Section 8.1(f), 9.1(f) then Company Cellect shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent Quoin, within 10 Business Days after termination, a termination nonrefundable fee in an amount equal to $6,000,000 500,000 (the “Parent Quoin Termination Fee”).
(c) If (A) this Agreement is terminated by Cellect pursuant to Section 9.1(d) then Quoin shall pay to Cellect, within 10 Business Days after termination, a nonrefundable fee in an amount equal to $500,000 (the “Cellect Termination Fee”).
(d) If this Agreement is terminated by Quoin pursuant to Section 9.1(g), (provided, that at such time all of the other conditions precedent to Cellect’s obligation to close set forth in Article 6 and Article 7 of this Agreement have been satisfied by Quoin, are capable of being satisfied by Quoin or have been waived by Cellect), then Cellect shall reimburse Parent Quoin for the documented out-of-pocket all reasonable fees and expenses reasonably incurred by Parent and Merger Sub Quoin in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable collectively referred to banksas the “Third-Party Expenses”) provided, investment banking firms and other financial institutionshowever, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on the Third-Party Expenses shall be capped at a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate maximum of $500,000 (the “Parent Expenses”)250,000. Company Such payment shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after be made by wire transfer of same-day funds within 10 Business Days following the date on which Company is obligated Quoin submits to pay the Parent Termination Fee to ParentCellect true and correct copies of reasonable documentation supporting such Third-Party Expenses.
(ce) If this Agreement is terminated by Cellect pursuant to Section 8.1(b) and 9.1(h), (provided, that at the such time of such termination all of the other conditions precedent to ParentQuoin’s obligations under this Agreement (other than the condition obligation to close set forth in Section 7.2(j)) shall Article 6 and Article 8 of this Agreement have been satisfiedsatisfied by Cellect, are capable of being satisfied by Cellect or have been waived by Quoin), then Parent Quoin shall pay reimburse Cellect for all Third-Party Expenses incurred by Cellect up to Company on the date a maximum of such termination $250,000, by wire transfer of immediately available same-day funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after within 10 Business Days following the date on which Parent is obligated Cellect submits to Quoin true and correct copies of reasonable documentation supporting such Third-Party Expenses.
(f) The Parties agree that the payment of the fees and expenses set forth in this Section 9.3, subject to Section 9.2, shall be the sole and exclusive remedy of each Party following a termination of this Agreement, it being understood that in no event shall either Cellect or Quoin be required to pay fees or damages payable pursuant to this Section 9.3 on more than one occasion. Except in the Company Termination Fee event of fraud, the payment of the fees and expenses set forth in this Section 9.3, and the provisions of Section 10.10, each of the Parties and their respective Affiliates will not have any liability, will not be entitled to Companybring 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 Contemplated Transactions to be consummated. 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 Parties in the circumstances in which such amount is payable.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated (including any attorney’s, accountant’s, financial advisor’s or finder’s fees); provided that regardless of which Party incurs such expenses, (i) MTS shall pay all fees and expenses incurred in relation to the drafting, 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, and (ii) the Company shall pay all expenses with respect to the Closing Financing. 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 and that it is understood and agreed that all fees and expenses incurred or to be incurred by MTS or the Merger Sub in connection with the Contemplated Transactions (except for the Closing Financing) and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by MTS prior to the Closing.
(bi) If this Agreement is terminated by the Company pursuant to Section 8.1(f9.1(e)or by MTS pursuant to Section 9.1(g), then Company MTS shall pay to Parent on Company, within 10 Business Days after the date termination of such termination by wire transfer of immediately available funds to an account designated by Parent this Agreement, a termination nonrefundable fee in an amount equal to $6,000,000 1,300,000 (the “Parent Company Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(cii) If (A) this Agreement is terminated by MTS pursuant to Section 8.1(b9.1(f) and at or by the time of such termination all of the conditions Company pursuant to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j9.1(h)) shall have been satisfied, then Parent the Company shall pay to Company on the date MTS, within 10 Business Days after termination of such termination by wire transfer of immediately available funds to an account designated by Company this Agreement, a termination nonrefundable fee in an amount equal to $6,000,000 1,300,000 (the “Company MTS Termination Fee” ”).
(c) and shall reimburse Company for The Parties agree that the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage payment of the Company Termination Fee or MTS Termination Fee, as the proposed aggregate Merger Consideration) up to an aggregate case may be, shall be the sole and exclusive remedy of $500,000 (MTS or the “Company, as the case may be, following a termination of this Agreement under the circumstances described in Section 9.3(b), it being understood that in no event shall MTS or the Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated be required to pay fees or damages payable pursuant to Section 9.3(b) on more than one occasion. Each of the Company Termination Fee Parties acknowledges that (a) the agreements contained in Sections 9.3(b)-(c) are an integral part of the Contemplated Transactions, (b) without these agreements, the Parties would not enter into this Agreement and (c) any amount payable pursuant to CompanySection 9.3(b) 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 (Mer Telemanagement Solutions LTD)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Pivot and Merger Partner shall share equally 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 transactions contemplated hereby; provided, further however, that Pivot and Merger Partner shall also share equally all fees and expenses incurred (up to a maximum of $125,000 payable by Merger Partner) in relation to the printing and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC.
(b) (i) If this Agreement is terminated by Pivot or Merger Partner pursuant to Section 8.1(f9.1(e) or (f) (provided, that, section (iii) of the definition of Pivot Triggering Event, which relates to Pivot’s holding of a stockholders meeting, shall not be considered a Pivot Triggering Event for the purposes of this Section 9.3(b)) and (1) at any time before the Pivot Stockholders’ Meeting an Acquisition Proposal with respect to Pivot shall have been publicly announced, then Company disclosed or otherwise communicated to Pivot’s Board of Directors and (2) and within 12 months after the date of termination of this Agreement, Pivot enters into a definitive agreement with respect to an Acquisition Transaction or consummates an Acquisition Transaction, Pivot shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent Merger Partner, within ten (10) Business Days after termination, a termination nonrefundable fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and 4,200,000, in addition to any amount paid to Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable Partner pursuant to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”Section 9.3(c). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(cii) If this Agreement is terminated by Pivot pursuant to Section 8.1(b9.1(d) or (g) and (1) at any time before obtaining the time of such termination all of the conditions Required Merger Partner Stockholder Vote an Acquisition Proposal with respect to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) Merger Partner shall have been satisfiedpublicly announced, then Parent disclosed or otherwise communicated to Merger Partner’s Board of Directors and (2) within 12 months after the date of termination of this Agreement, Merger Partner enters into a definitive agreement with respect to an Acquisition Transaction or consummates an Acquisition Transaction, Merger Partner shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company Pivot, within ten (10) Business Days after termination, a termination nonrefundable fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company4,200,000.
Appears in 1 contract
Samples: Merger Agreement (Novacea Inc)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, further, that Alcobra shall pay for all fees and expenses incurred by engagement of the Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Proxy Statement (including any financial statements and exhibits) and any amendments or supplements thereto.
(bi) If this Agreement is terminated by Alcobra or Arcturus pursuant to (A) Section 8.1(f)9.1(e) or (B) Section 9.1(f) and at any time before the Alcobra Shareholders’ Meeting an Acquisition Proposal with respect to Alcobra has been publicly announced, disclosed or otherwise communicated to the Alcobra Board of Directors, then Company Alcobra shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent Arcturus, within 10 Business Days after termination, a termination nonrefundable fee in an amount equal to $6,000,000 3,000,000 (the “Parent Arcturus Termination Fee”), in addition to any amount payable to Arcturus pursuant to Section 9.3(c) or Section 9.3(e).
(ii) If (A) this Agreement is terminated by Alcobra pursuant to Section 9.1(d) or Section 9.1(g), (B) at any time before obtaining the Required Arcturus Stockholder Vote an Acquisition Proposal with respect to Arcturus has been publicly announced, disclosed or otherwise communicated to the Arcturus Board of Directors, and (C) in the event this Agreement is terminated pursuant Section 9.1(d), within 12 months after the date of such termination, Arcturus enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Arcturus shall pay to Alcobra, within 10 Business Days after termination (or, if applicable, upon the earlier of such entry into a definitive agreement with respect to a Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $3,000,000 (the “Alcobra Termination Fee”), in addition to any amount payable to Alcobra pursuant to Section 9.3(d) or Section 9.3(e).
(c) (i) If this Agreement is terminated by Arcturus pursuant to Section 9.1(e), Section 9.1(f) or Section 9.1(h), or (ii) if this Agreement is terminated by Alcobra pursuant to Section 9.1(e), or (iii) in the event of a failure of Arcturus to consummate the transactions to be consummated at the Closing solely as a result of an Alcobra Material Adverse Effect as set forth in Section 8.3 (provided, that at such time all of the other conditions precedent to Alcobra’s obligation to close set forth in Article 6 and Article 7 of this Agreement have been satisfied by Arcturus, are capable of being satisfied by Arcturus or have been waived by Alcobra), then Alcobra shall reimburse Parent Arcturus for the documented out-of-pocket all reasonable fees and expenses reasonably incurred by Parent and Merger Sub Arcturus in connection with this Agreement and the transactions contemplated hereby hereby, including: (A) all fees and expenses incurred in connection with the preparation, printing and filing, as applicable, of the Proxy Statement and Information Statement (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto), excluding legal fees and other amounts payable to banks, investment banking firms expenses; and other financial institutions, and their respective agents and counsel, and (B) all fees and expenses incurred in connection with the preparation and filing under any filing requirement of counselany Governmental Body applicable to this Agreement and the transactions contemplated hereby; provided, accountants and consultants to Parent and its affiliates (whether or not such however, the fees and other payments are measured by or based on expenses for clauses (A) and (B) above (collectively referred to as the “Third-Party Expenses”) shall be capped at a percentage maximum of $300,000 for such Third-Party Expenses; plus (C) reimbursement of all fees and expenses of Arcturus’s legal counsel in connection with preparation of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 Proxy Statement (the “Parent Proxy Statement and Information Statement Expenses”). Company Such payment shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after be made by wire transfer of same-day funds within 10 Business Days following the date on which Company is obligated Arcturus submits to pay the Parent Termination Fee to ParentAlcobra true and correct copies of reasonable documentation supporting such Third-Party Expenses and Proxy Statement and Information Statement Expenses.
(cd) (i) If this Agreement is terminated by Alcobra pursuant to Section 8.1(b9.1(d), Section 9.1(g), or Section 9.1(i), or (ii) and in the event of a failure of Alcobra to consummate the transactions to be consummated at the time Closing solely as a result of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition an Arcturus Material Adverse Effect as set forth in Section 7.2(j)) shall 7.3 (provided, that at such time all of the other conditions precedent to Arcturus’s obligation to close set forth in Article 6 and Article 8 of this Agreement have been satisfiedsatisfied by Alcobra, are capable of being satisfied by Alcobra or have been waived by Arcturus), then Parent Arcturus shall pay reimburse Alcobra for all Third-Party Expenses incurred by Alcobra up to Company on the date a maximum of such termination $300,000, by wire transfer of immediately available same-day funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after within 10 Business Days following the date on which Parent is obligated Alcobra submits to Arcturus true and correct copies of reasonable documentation supporting such Third-Party Expenses.
(e) If either Party fails to pay when due any amount payable by such Party under Section 9.3(b), Section 9.3(c), or Section 9.3(d), then (i) such Party shall reimburse the Company Termination Fee other Party for 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, and (ii) such Party shall pay to Companythe 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 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.
(f) The Parties agree that the payment of the fees and expenses set forth in this Section 9.3, 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 Alcobra or Arcturus be required to 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 10.10, 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 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 Contemplated Transactions to be consummated. 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 Parties in the circumstances in which such amount is payable.
Appears in 1 contract
Samples: Merger Agreement (Alcobra Ltd.)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated.
(b) If this Agreement is terminated (i) by Deerfield pursuant to Section 8.1(f), then Company shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b9.1(e) and at the time of such termination all Deerfield is not in breach of this Agreement in a manner which would prevent the satisfaction of any condition in Section 6 and 7 required to be satisfied by Deerfield, (ii) by Deerfield pursuant to Section 9.1(g), (iii) by NitroMed pursuant to Section 9.1(h) or (iv) by NitroMed or Deerfield pursuant to Section 9.1(d), then NitroMed shall reimburse Deerfield for its documented fees and expenses incurred from and after January 9, 2009 associated with the Agreement and the Contemplated Transactions, including fees and expenses of legal counsel and accountants and any fees and expenses incurred in the preparation of the conditions Proxy Statement (including any preliminary materials related thereto) and any amendments or supplements thereto; provided, however, that such fees and expenses shall not exceed $750,000.
(c) If NitroMed fails to Parent’s obligations pay when due any amount payable by NitroMed under Section 9.3(b), then (i) NitroMed shall reimburse Deerfield for 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 Deerfield of its rights under this Agreement Section 9.3, and (other than the condition set forth in Section 7.2(j)ii) shall have been satisfied, then Parent NitroMed shall pay to Company Deerfield 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 of such termination by wire transfer of immediately available funds overdue amount is actually paid to an account designated by Company Deerfield in full) at a termination fee in an amount rate per annum equal to $6,000,000 the "prime rate" (the “Company Termination Fee” as announced by Bank of America or any successor thereto) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based effect on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated such overdue amount was originally required to pay the Company Termination Fee to Companybe paid.
Appears in 1 contract
Samples: Merger Agreement (Nitromed Inc)
Expenses; Termination Fees. (a) Subject to Except as set forth in this Section 8.3 and/or the application of Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummatedBinding LOI Amendment, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions will be paid by the Party incurring such expenses, whether or not the Acquisition is consummated. Notwithstanding the foregoing, (A) BLBX and Evtec shall share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, incurred (i) in relation to the filings by the Parties under any filing requirement under any foreign antitrust Legal Requirement applicable to this Agreement and the Contemplated Transactions, (ii) by engagement of the Exchange Agent and (iii) in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto; and (B) Evtec shall be solely responsible for all listing fees payable to Nasdaq in connection with the listing of the shares of BLBX Common Stock to be issued in connection with the Acquisition and reasonable out-of-pocket expenses of BLBX incurred in connection therewith. Notwithstanding the above, Evtec shall be responsible for up to $175,000 of BLBX legal fees and expenses as set forth in the Binding LOI Amendment, regardless of whether or not this Agreement is terminated. Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the Contemplated Transactions, without which, the Parties would not enter into this Agreement. It is understood and agreed that all fees and expenses incurred or to be incurred by BLBX 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 BLBX in cash at or prior to the party incurring such expensesClosing.
(b) If this Agreement is terminated pursuant to Section 8.1(f8.1(d) or Section 8.1(g), then Company shall BLBX will pay to Parent on the date of such termination Evtec (by wire transfer of immediately available funds to an account designated by Parent funds), within two Business Days after such termination, a termination fee in an amount equal to $6,000,000 (the “Parent BLBX Termination Fee”) and shall reimburse Parent for the documented out-of-pocket in an amount in cash equal to $500,000, plus, all fees and expenses reasonably (up to $250,000) incurred by Parent and Merger Sub Evtec in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to ParentContemplated Transactions.
(c) If this Agreement is terminated pursuant to Section 8.1(b8.1(e) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in or Section 7.2(j8.1(f)) shall have been satisfied, then Parent shall Evtec will pay to Company on the date of such termination BLBX (by wire transfer of immediately available funds to an account designated by Company funds), within two Business Days after such termination, a termination fee (the “Evtec Termination Fee”) in an amount in cash equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket 500,000, plus, all fees and expenses reasonably (up to $250,000) incurred by Company BLBX in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions Contemplated Transactions.
(d) In the event that Evtec shall be entitled to receive the BLBX Termination Fee or BLBX shall be entitled to receive the Evtec Termination Fee, such fee is not a penalty but shall be liquidated damages in a reasonable amount for any and all losses or damages suffered or incurred by Evtec and Sellers, on the one hand, BLBX, on the other hand, or in connection with the matter forming the basis for such termination. Notwithstanding any other provision of this Agreement to the contrary, other than as provided in this Section 8.3(d), the Parties agree that the payments contemplated hereby by this Section 8.3 represent the sole and exclusive remedies of Evtec and Sellers, on the one hand, and BLBX, on the other hand, in respect of a termination pursuant to Section 8.1 under circumstances requiring the payment of the BLBX Termination Fee or the Evtec Termination Fee, as applicable.
(e) If BLBX or Evtec, as applicable, fails to pay when due any amount payable BLBX or Evtec, as applicable, under this Section 8.3, then (i) BLBX or Evtec will, as applicable, reimburse Evtec and Sellers, on the one hand, and BLBX, on the other hand, for all costs and expenses (including fees and other amounts payable to banks, investment banking firms disbursements of counsel) incurred in connection with the collection of such overdue amount and other financial institutionsthe enforcement by the Parties of their rights under this Section 8.3, and their respective agents (ii) BLBX or Evtec, as applicable, will pay to Evtec and counselSellers, and all fees of counselon the one hand, accountants and consultants to Company and its affiliates or BLBX, on the other hand, interest on such overdue amount (whether or not such fees and other payments are measured by or based on a percentage for the period commencing as of the Company Termination Fee or date such overdue amount was originally required to be paid and ending on the proposed aggregate Merger Considerationdate such overdue amount is actually paid to the Parties entitled thereto in full) up at a rate per annum equal to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice prime rate” (as announced by Bank of America or any successor thereto) in effect on or after the date on which Parent is obligated such overdue amount was originally required to pay the Company Termination Fee to Companybe paid.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Tigris and Potomac shall share equally 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 transactions contemplated hereby; provided, further however, that Tigris and Potomac shall also share equally all fees and expenses incurred (up to a maximum of $125,000 payable by Potomac) in relation to the printing and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC.
(b) (i) If (x) this Agreement is terminated by Tigris or Potomac pursuant to Section 9.1(e) or (f), (y) at any time before the Tigris Stockholders’ Meeting an Acquisition Proposal with respect to Tigris shall have been publicly announced, disclosed or otherwise communicated to Tigris’ Board of Directors and (z) in the event this Agreement is terminated pursuant to Section 8.1(f9.1(e), then Company shall pay to Parent on within 12 months after the date of such termination by wire transfer of immediately available funds termination, Tigris enters into a definitive agreement with respect to an account designated by Parent a termination Subsequent Transaction or consummates a Subsequent Transaction, Tigris shall pay to Potomac, within ten (10) Business Days after termination, a nonrefundable fee in an amount equal to $6,000,000 6,300,000 (the “Parent Potomac Termination Fee”), in addition to any amount payable to Potomac pursuant to Sections 9.3(c) or 9.3(e);
(i) If (x) this Agreement is terminated by Tigris pursuant to Section 9.1(d) or (g), (y) at any time before obtaining the Required Potomac Stockholder Vote an Acquisition Proposal with respect to Potomac shall have been publicly announced, disclosed or otherwise communicated to Potomac’s Board of Directors, and (z) in the event this Agreement is terminated pursuant Section 9.1(d), within 12 months after the date of such termination, Potomac enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, Potomac shall pay to Tigris, within ten (10) Business Days after termination, a nonrefundable fee in an amount equal to $6,300,000 (the “Tigris Termination Fee”), in addition to any amount payable to Tigris pursuant to Sections 9.3(d) or 9.3(e); or
(ii) If this Agreement is terminated by Tigris pursuant to Section 9.1(j) and prior to such termination, a requisite group of Purchasers (as defined in the Subscription Agreement) have not irrevocably confirmed by written notice to Tigris that such Purchasers are prepared to consummate an acquisition of Potomac Common Stock on the terms and conditions set forth in the Subscription Agreement with aggregate gross cash proceeds to Potomac of at least $93,000,000, Potomac shall pay to Tigris, within ten (10) Business Days after termination, the Tigris Termination Fee, in addition to any amount payable to Tigris pursuant to Sections 9.3(d) or 9.3(e).
(c) (i) If this Agreement is terminated by Potomac pursuant to Sections 9.1(e), (f) or (h), or (ii) if this Agreement is terminated by Tigris pursuant to Section 9.1(e), or (iii) in the event of a failure of Potomac to consummate the transactions to be consummated at the Closing solely as a result of a Tigris Material Adverse Effect as set forth in Section 8.8 (provided that at such time all of the other conditions precedent to Tigris’ obligation to close set forth in Sections 6 and 7 of this Agreement have been satisfied by Potomac, are capable of being satisfied by Potomac or have been waived by Tigris), Tigris shall reimburse Parent Potomac for the documented out-of-pocket all reasonable fees and expenses reasonably incurred by Parent and Merger Sub Potomac in connection with this Agreement and the transactions contemplated hereby hereby, including (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and x) all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company 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 Authority applicable to this Agreement and the transactions contemplated hereby (such expenses, including fees (x) and other amounts payable to banks(y) above, investment banking firms and other financial institutionscollectively, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Third Party Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after up to a maximum of $1,000,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Parent Potomac submits to Tigris 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 a financial advisor to Potomac except for reasonably documented out-of-pocket expenses otherwise reimbursable by Potomac to such financial advisor pursuant to the terms of Potomac’s engagement letter or similar arrangement with financial advisor.
(i) If this Agreement is obligated terminated by Tigris pursuant to Sections 9.1(d), (g), (i) or (j) or (ii) in the event of a failure of Tigris to consummate the transactions to be consummated at the Closing solely as a result of a Potomac Material Adverse Effect as set forth in Section 7.8 (provided that at such time all of the other conditions precedent to Potomac’s obligation to close set forth in Sections 6 and 8 of this Agreement have been satisfied by Tigris, are capable of being satisfied by Tigris or have been waived by Potomac), Potomac shall reimburse Tigris for all Third Party Expenses incurred by Tigris up to a maximum of $1,000,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Tigris submits to Potomac 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 a financial advisor to Tigris except for reasonably documented out-of-pocket expenses otherwise reimbursable by Tigris to such financial advisor pursuant to the terms of Tigris’ engagement letter or similar arrangement with financial advisor.
(e) If either Party fails to pay when due any amount payable by such Party under Section 9.3(b), (c) or (d), then (i) such Party shall reimburse the Company Termination Fee other Party for 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, and (ii) such Party shall pay to Companythe 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 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.
(f) The Parties agree that the payment of the fees and expenses set forth in this Section 9.3, 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 Tigris or Potomac be required to 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 Section 10.11, each of the Parties and their respective affiliates (as that term is used in Rule 145 under the Securities Act) 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 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 Parties in the circumstances in which such amount is payable.
(g) Notwithstanding anything to the contrary in this Section 9.3, any amount payable by Tigris to Potomac pursuant to this Section 9.3 shall be reduced and offset by any amounts owed by Potomac to Tigris pursuant to the Tigris Notes.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b9.3(b) and (c) belowSection 9.3(c), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expensesexpense.
(b) If this Agreement is terminated pursuant Buyer shall pay the filing fees incurred in connection with 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.
(c) In the event that the Company elects to pursue discussions or negotiations with any Person relating to any Acquisition Proposal as contemplated by Section 8.1(f5.4(c), then the Company shall pay to Parent on promptly reimburse Buyer for all of the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket costs and expenses (including the fees and expenses of its advisors, accountants and legal counsel) reasonably incurred by Parent and Merger Sub Buyer in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage the due diligence review of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”)Acquired Companies by Buyer. Company Any such payment shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied, then Parent shall pay to Company on the date of such termination be made by wire transfer of immediately available same day funds to an account designated by the Buyer within three (3) Business Days after the Company a termination fee in an amount equal elects to $6,000,000 pursue any such negotiations or discussions.
(d) In the “event that Buyer or the Company Termination Fee” shall terminate this Agreement pursuant to Section 9.1(e) and or clause (ii) of Section 9.1(i), the Company shall (i) promptly reimburse Company Buyer for all of the documented out-of-pocket costs and expenses (including the fees and expenses of its advisors, accountants and legal counsel) reasonably incurred by Company Buyer in connection with this Agreement and the transactions contemplated hereby and the due diligence review of the Acquired Companies by Buyer (including fees and other amounts payable but only to banks, investment banking firms and other financial institutionsthe extent not previously reimbursed pursuant to Section 9.3(c)), and their respective agents and counsel(ii) promptly pay Buyer a non-refundable fee equal to Twenty-Six Million Dollars ($26,000,000), but only if within twelve (12) months of such termination the transaction contemplated by such Superior Proposal or Acquisition Transaction, as the case may be, is consummated. Any payment required to be paid pursuant to clause (i) of this Section 9.3(c) will be made by wire transfer of same day funds within three (3) Business Days following such termination, and any payment required to be paid pursuant to clause (ii) of this Section 9.3(c) will be made by wire transfer of same day funds within three (3) Business Days after the consummation of such Superior Proposal or Acquisition Transaction, as the case may be. For purposes of this Section 9.3(c), “consummation” of a Superior Proposal or Acquisition Transaction shall occur on the closing date with respect to a merger or other business combination involving the Company or the acquisition of 50% or more of the outstanding shares of Company Capital Stock, or sale or transfer of all fees or substantially all assets (excluding the sale or disposition of counsel, accountants and consultants to assets in the Ordinary Course of Business) of the Company and its affiliates Subsidiaries.
(whether or not such fees e) The parties agree that the agreement contained in Section 9.3(d) and other payments are measured by or based on a percentage the payment contemplated thereby is an integral part of the Company Termination Fee transaction contemplated by this Agreement and that such payment represents the damages that Buyer and Acquisition Corporation will incur if the conditions giving rise to such payment shall occur and constitute liquidated damages and not a penalty and represent the sole and exclusive remedy of Buyer and Acquisition Corporation in the circumstances contemplated by such payment event (including any remedy related to the Stockholder Voting Agreements or the proposed aggregate Merger Consideration) up with respect to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Companyand its officers, directors, stockholders, affiliates, employees, agents and representatives).
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement shall be paid by the party incurring such expenses, whether or not the sale of the Transferred Assets is consummated; provided, however, that if this Agreement is terminated by Seller pursuant to Section 9.1(c) by reason of the failure of any Purchaser to satisfy any of the conditions set forth in Section 8.1 or Section 8.2, or by any Purchaser pursuant to Section 9.1(b) by reason of the failure of any Purchaser to satisfy the condition set forth in Section 7.3, then Purchasers shall make a nonrefundable cash payment to Seller, at the time specified in Section 9.3(b), in an amount equal to the sum of (i) the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, and financial advisory fees) that have been paid or that may become payable by or on behalf of Seller in connection with the preparation and negotiation of this Agreement and otherwise in connection with the sale of the Transferred Assets and (ii) US$960,000 (the amounts set forth in clauses (i) and (ii) being together referred to as the “Termination Fee”).
(b) If this Agreement is terminated Any nonrefundable cash payment required to be made pursuant to Section 8.1(f), then Company 9.3(a) shall pay to Parent on be made by Purchasers within five (5) Business Days following the date time of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parenttermination.
(c) If this Agreement is terminated pursuant Purchasers fail to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations pay when due any amount payable under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied9.3, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” i) and Purchasers shall reimburse Company Seller for the documented out-of-pocket fees all costs and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms disbursements of counsel) incurred in connection with the collection of such overdue amount and other financial institutionsthe enforcement by Seller of its rights under this Section 9.3, and their respective agents and counsel, and all fees of counsel, accountants and consultants (ii) Purchasers shall pay to Company and its affiliates Seller interest on such overdue amount (whether or not such fees and other payments are measured by or based on a percentage for the period commencing as of the Company Termination Fee or date such overdue amount was originally required to be paid and ending on the proposed aggregate Merger Considerationdate such overdue amount is actually paid to Seller in full) up to at an aggregate of $500,000 (annual rate two percentage points above the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice prime rate” (as announced by Bank of America or any successor thereto) in effect on or after the date on which Parent is obligated such overdue amount was originally required to pay the Company Termination Fee to Companybe paid.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Discovery Partners International Inc)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party incurring such 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' and accountant's fees, incurred in connection with (A) the filing, printing and mailing of the Form F-4 Registration Statement and the 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; and
(ii) if this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d) and, 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 (which shall not have been withdrawn prior to termination of this Agreement by the Company or Parent), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 9.3(c)) the 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, filing fees and printing and mailing expenses) 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 each Stockholder Agreement and otherwise in connection with the Contemplated Transactions or its consideration of the Contemplated Transactions; provided that the aggregate amount of such fees and expenses shall not exceed $2,000,000 and such amounts shall be credited against any fees payable to Parent pursuant to Sections 9.3(b) and 9.3(c).
(b) If (i) a Material Adverse Effect occurs in relation to the Acquired Corporations, (ii) such Material Adverse Effect is not cured and (iii) this Agreement is subsequently terminated pursuant to Section 9.1(b) and, at the date of termination, such Material Adverse Effect has not been cured, then the Company shall make a nonrefundable cash payment to Parent, within two business days after such termination, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees, filing fees and printing and mailing expenses) 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 each Stockholder Agreement and otherwise in connection with the Contemplated Transactions or its consideration of the Contemplated Transactions that were incurred during that period commencing on the date of the occurrence of the Material Adverse Effect and ending on the date of termination of this Agreement; provided that the aggregate amount of such fees and expenses shall not exceed $2,000,000 and such amounts shall be credited against any fees payable to Parent pursuant to Sections 9.3(a)(ii) and 9.3(c).
(c) If:
(i) (x) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(f9.1(d) or by the Company pursuant to Section 9.1(b), then or (y) this Agreement is terminated by Parent pursuant to Section 9.1(b), unless
(A) the Merger has not been consummated due to the failure of either party to obtain a Required Consent or Governmental Authorization, and
(B) the Company has offered to extend the termination date set forth in Section 9.1 (b) and Parent has declined to extend such termination date, and, in the case of either clause (x) or (y) above,
(1) 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 (which shall not have been withdrawn prior to such termination) and
(2) within one year after the termination of this Agreement an Acquisition Proposal is consummated or the Company shall have entered into an agreement relating to the consummation of an Acquisition Proposal and that Acquisition Proposal or a different Acquisition Proposal is consummated within two years after the termination of this Agreement, or
(ii) this Agreement is terminated by Parent pursuant to Section 9.1(e) or by the Company pursuant to Section 9.1(f); then, in the case of either clause (i) or (ii) above, the Company shall pay to Parent, in cash at the time specified in the next sentence (against which any amounts payable pursuant to Section 9.3(a) and 9.3(b) shall be credited), a nonrefundable fee in the amount equal to $10,000,000. In the case of termination of this Agreement by the Company pursuant to Section 9.1(f), the fee referred to in the preceding sentence shall be paid by the Company prior to the time of, and as a condition to the effectiveness of, such termination; in the case of termination of this Agreement by Parent pursuant to Section 9.1(e), the fee referred to in the preceding sentence shall be paid by the Company within two business days after such termination; and in the case of a termination of this Agreement pursuant to Section 9.1(b) or Section 9.1(d) as described in clause (i) of the first sentence of this Section 9.3(c), the fee referred to in the preceding sentence shall be paid by the Company upon consummation of the Acquisition Proposal.
(d) If the Company fails to pay when due any amount payable under this Section 9.3, then, in addition to any such amounts, (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 overdue amount and the enforcement by Parent of its rights under this Section 9.3, 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 of such termination by wire transfer of immediately available funds overdue amount is actually paid to an account designated by Parent in full) at a termination fee in an amount rate per annum equal to $6,000,000 1% over the "prime rate" (the “Parent Termination Fee”as announced by Bank of America, N.A.) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied, then Parent shall pay to Company effect on the date of such termination by wire transfer of immediately available funds overdue amount was originally required to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Companybe paid.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party incurring such 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' and accountant's fees, incurred in connection with (A) the filing, printing and mailing of the Form F-4 Registration Statement and the 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; and
(ii) if this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d) and, 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 (which shall not have been withdrawn prior to termination of this Agreement by the Company or Parent), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 9.3(c)) the 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, filing fees and printing and mailing expenses) 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 each Stockholder Agreement and otherwise in connection with the Contemplated Transactions or its consideration of the Contemplated Transactions; provided that the aggregate amount of such fees and expenses shall not exceed $2,000,000 and such amounts shall be credited against any fees payable to Parent pursuant to Sections 9.3(b) and 9.3(c).
(b) If (i) a Material Adverse Effect occurs in relation to the Acquired Corporations, (ii) such Material Adverse Effect is not cured and (iii) this Agreement is subsequently terminated pursuant to Section 8.1(f)9.1(b) and, then Company shall pay to Parent on at the date of termination, such termination by wire transfer of immediately available funds Material Adverse Effect has not been cured, then the Company shall make a nonrefundable cash payment to an account designated by Parent a termination fee Parent, within two business days after such termination, in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket aggregate amount of all fees and expenses reasonably incurred (including all attorneys' fees, accountants' fees, financial advisory fees, filing fees and printing and mailing expenses) that have been paid or that may become payable by or on behalf of Parent and Merger Sub in connection with the preparation and negotiation of this Agreement and each Stockholder Agreement and otherwise in connection with the transactions contemplated hereby (including fees Contemplated Transactions or its consideration of the Contemplated Transactions that were incurred during that period commencing on the date of the occurrence of the Material Adverse Effect and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees ending on the date of counsel, accountants and consultants to Parent and its affiliates (whether or not termination of this Agreement; provided that the aggregate amount of such fees and other payments are measured by or based on a percentage of the expenses shall not exceed $2,000,000 and such amounts shall be credited against any fees payable to Parent Termination Fee or the proposed aggregate Merger Considerationpursuant to Sections 9.3(a)(ii) up to an aggregate of $500,000 (the “Parent Expenses”and 9.3(c). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If If: (i) (x) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b9.1(d) and at or by the time of such termination all of the conditions Company pursuant to Parent’s obligations under Section 9.1(b), or
(y) this Agreement is terminated by Parent pursuant to Section 9.1(b), unless
(other than A) the condition Merger has not been consummated due to the failure of either party to obtain a Required Consent or Governmental Authorization, and
(B) the Company has offered to extend the termination date set forth in Section 7.2(j)9.1 (b) and Parent has declined to extend such termination date, and, in the case of either clause (x) or (y) above,
(1) at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been satisfiedpublicly disclosed, then Parent announced, commenced, submitted or made (which shall pay not have been withdrawn prior to Company on such termination) and
(2) within one year after the date termination of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether an Acquisition Proposal is consummated or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee shall have entered into an agreement relating to the consummation of an Acquisition Proposal and that Acquisition Proposal or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or a different Acquisition Proposal is consummated within two years after the date on which Parent is obligated to pay the Company Termination Fee to Company.termination of this Agreement, or
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions (including any attorneys’ and accountants’ fees and expenses) shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Invitae and CombiMatrix shall share equally all filing 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; and provided, further, that Invitae and CombiMatrix shall also share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, of the Exchange Agent and in relation to preparation and filing with the SEC of the Registration Statements (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 Registration Statements and the printing or mailing of the Proxy Statement/Prospectus and the Offer Documents.
(b) If (i) this Agreement is terminated by Invitae or CombiMatrix pursuant to Section 9.1(d) or by Invitae pursuant to Section 9.1(e), (ii) at any time before the CombiMatrix Stockholders’ Meeting a bona fide Acquisition Proposal with respect to CombiMatrix shall have been publicly announced or disclosed or, in the event this Agreement is terminated pursuant to Section 8.1(f9.1(e), then Company shall pay otherwise communicated to Parent on CombiMatrix’s Board of Directors, and (iii) in the event this Agreement is terminated pursuant to Section 9.1(d), within twelve (12) months after the date of such termination, CombiMatrix enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then CombiMatrix shall pay to Invitae, within ten (10) Business Days after termination by wire transfer (or, if applicable, upon such entry into a definitive agreement or consummation of immediately available funds to an account designated by Parent a termination Subsequent Transaction), a nonrefundable fee in an amount equal to $6,000,000 1,400,000 (the “Parent Termination Fee”), in addition to any amount payable to Invitae pursuant to Section 9.3(e); provided, however, that such Termination Fee shall be reduced by any amount already paid to Invitae pursuant to Section 9.3(d).
(c) (i) If this Agreement is terminated by CombiMatrix pursuant to Section 9.1(f) other than as a result of an Invitae Material Adverse Effect or (ii) in the event of a failure of CombiMatrix to consummate the transactions to be consummated at the Closing solely as a result of an Invitae Material Adverse Effect as set forth in Section 8.3 (provided, that at such time all of the conditions precedent to the obligations of Invitae to a Closing set forth in Section 6 and Section 7 of this Agreement have been satisfied by CombiMatrix, are capable of being satisfied by CombiMatrix, or have been waived by Invitae), then Invitae shall reimburse Parent CombiMatrix for the documented out-of-pocket all reasonable fees and expenses reasonably incurred by Parent and Merger Sub CombiMatrix in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions, including (A) all fees and expenses incurred by engagement of the Exchange Agent and in relation to preparation and filing with the SEC of the Registration Statements (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 Registration Statements and the printing or mailing of the Proxy Statement/Prospectus and the Offer Documents and (B) all fees and other amounts payable expenses incurred in connection with the preparation and Filing under any Filing requirement of any Governmental Authority applicable to banksthis Agreement and the Contemplated Transactions (such expenses, investment banking firms including (A) and other financial institutions(B) above, and their respective agents and counselcollectively, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Third Party Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after up to a maximum of $400,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Company is obligated CombiMatrix submits to pay Invitae 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 a financial advisor to CombiMatrix except for reasonably documented out-of-pocket expenses otherwise reimbursable by CombiMatrix to such financial advisor pursuant to the Parent Termination Fee to Parentterms of CombiMatrix’s engagement letter or similar arrangement with such financial advisor.
(cd) (i) If this Agreement is terminated by Invitae pursuant to Sections 9.1(d), 9.1(e) or 9.1(g) (other than, in the instance of Section 9.1(g), as a result of a CombiMatrix Material Adverse Effect), (ii) if this Agreement is terminated by CombiMatrix pursuant to Section 8.1(b9.1(d), or (iii) and in the event of a failure of Invitae to consummate the transactions to be consummated at the Closing solely as a result of a CombiMatrix Material Adverse Effect as set forth in Section 7.3 (provided, that at such time of such termination all of the conditions precedent to Parent’s the obligations under this Agreement (other than the condition of CombiMatrix to a Closing set forth in Section 7.2(j)) shall 6 and Section 8 of this Agreement have been satisfiedsatisfied by Invitae or Merger Sub, are capable of being satisfied by Invitae or Merger Sub, or have been waived by CombiMatrix), then Parent CombiMatrix shall pay reimburse Invitae for all Third Party Expenses incurred by Invitae, up to Company on the date a maximum of such termination $400,000, by wire transfer of immediately available same-day funds within ten (10) Business Days following the date on which Invitae submits to an account designated by Company CombiMatrix 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 a termination fee in an amount equal financial advisor to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company Invitae except for the reasonably documented out-of-pocket expenses otherwise reimbursable by Invitae to such financial advisor pursuant to the terms of Invitae’s engagement letter or similar arrangement with such financial advisor.
(e) If either Party fails to pay when due any amount payable by such Party under Sections 9.3(b), 9.3(c) or 9.3(d), then (i) such Party shall reimburse the other Party for 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, and (ii) 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 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.
(f) The Parties agree that the payment of the fees and expenses reasonably incurred by Company set forth in this Section 9.3, 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 Invitae or CombiMatrix be required to 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 10.11, 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 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 transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not Parties in the circumstances in which such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent amount is obligated to pay the Company Termination Fee to Companypayable.
Appears in 1 contract
Samples: Merger Agreement (Invitae Corp)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions (including any attorneys’ and accountants’ fees and expenses) shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Invitae and CombiMatrix shall share equally all filing 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; and provided, further, that Invitae and CombiMatrix shall also share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, of the Exchange Agent and in relation to preparation and filing with the SEC of the Registration Statements (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 Registration Statements and the printing or mailing of the Proxy Statement/Prospectus and the Offer Documents.
(b) If (i) this Agreement is terminated by Invitae or CombiMatrix pursuant to Section 9.1(d) or by Invitae pursuant to Section 9.1(e), (ii) at any time before the CombiMatrix Stockholders’ Meeting a bona fide Acquisition Proposal with respect to CombiMatrix shall have been publicly announced or disclosed or, in the event this Agreement is terminated pursuant to Section 8.1(f9.1(e), then Company shall pay otherwise communicated to Parent on CombiMatrix’s Board of Directors, and (iii) in the event this Agreement is terminated pursuant to Section 9.1(d), within twelve (12) months after the date of such termination, CombiMatrix enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then CombiMatrix shall pay to Invitae, within ten (10) Business Days after termination by wire transfer (or, if applicable, upon such entry into a definitive agreement or consummation of immediately available funds to an account designated by Parent a termination Subsequent Transaction), a nonrefundable fee in an amount equal to $6,000,000 1,400,000 (the “Parent Termination Fee”), in addition to any amount payable to Invitae pursuant to Section 9.3(e); provided, however, that such Termination Fee shall be reduced by any amount already paid to Invitae pursuant to Section 9.3(d).
(c) (i) If this Agreement is terminated by CombiMatrix pursuant to Section 9.1(f) other than as a result of an Invitae Material Adverse Effect or (ii) in the event of a failure of CombiMatrix to consummate the transactions to be consummated at the Closing solely as a result of an Invitae Material Adverse Effect as set forth in Section 8.3 (provided, that at such time all of the conditions precedent to the obligations of Invitae to a Closing set forth in Section 6 and Section 7 of this Agreement have been satisfied by CombiMatrix, are capable of being satisfied by CombiMatrix, or have been waived by Invitae), then Invitae shall reimburse Parent CombiMatrix for the documented out-of-pocket all reasonable fees and expenses reasonably incurred by Parent and Merger Sub CombiMatrix in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions, including (A) all fees and expenses incurred by engagement of the Exchange Agent and in relation to preparation and filing with the SEC of the Registration Statements (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 Registration Statements and the printing or mailing of the Proxy Statement/Prospectus and the Offer Documents and (B) all fees and other amounts payable expenses incurred in connection with the preparation and Filing under any Filing requirement of any Governmental Authority applicable to banksthis Agreement and the Contemplated Transactions (such expenses, investment banking firms including (A) and other financial institutions(B) above, and their respective agents and counselcollectively, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Third Party Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after up to a maximum of $400,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Company is obligated CombiMatrix submits to pay Invitae 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 a financial advisor to CombiMatrix except for reasonably documented out-of-pocket expenses otherwise reimbursable by CombiMatrix to such financial advisor pursuant to the Parent Termination Fee to Parentterms of CombiMatrix’s engagement letter or similar arrangement with such financial advisor.
(ci) If this Agreement is terminated by Invitae pursuant to Sections 9.1(d), 9.1(e) or 9.1(g) (other than, in the instance of Section 9.1(g), as a result of a CombiMatrix Material Adverse Effect), (ii) if this Agreement is terminated by CombiMatrix pursuant to Section 8.1(b9.1(d), or (iii) and in the event of a failure of Invitae to consummate the transactions to be consummated at the Closing solely as a result of a CombiMatrix Material Adverse Effect as set forth in Section 7.3 (provided, that at such time of such termination all of the conditions precedent to Parent’s the obligations under this Agreement (other than the condition of CombiMatrix to a Closing set forth in Section 7.2(j)) shall 6 and Section 8 of this Agreement have been satisfiedsatisfied by Invitae or Merger Sub, are capable of being satisfied by Invitae or Merger Sub, or have been waived by CombiMatrix), then Parent CombiMatrix shall pay reimburse Invitae for all Third Party Expenses incurred by Invitae, up to Company on the date a maximum of such termination $400,000, by wire transfer of immediately available same-day funds within ten (10) Business Days following the date on which Invitae submits to an account designated by Company CombiMatrix 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 a termination fee in an amount equal financial advisor to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company Invitae except for the reasonably documented out-of-pocket expenses otherwise reimbursable by Invitae to such financial advisor pursuant to the terms of Invitae’s engagement letter or similar arrangement with such financial advisor.
(e) If either Party fails to pay when due any amount payable by such Party under Sections 9.3(b), 9.3(c) or 9.3(d), then (i) such Party shall reimburse the other Party for 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, and (ii) 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 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.
(f) The Parties agree that the payment of the fees and expenses reasonably incurred by Company set forth in this Section 9.3, 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 Invitae or CombiMatrix be required to 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 10.11, 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 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 transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not Parties in the circumstances in which such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent amount is obligated to pay the Company Termination Fee to Companypayable.
Appears in 1 contract
Samples: Merger Agreement (CombiMatrix Corp)
Expenses; Termination Fees. (a) Subject to Except as set forth in this Section 8.3 or specifically set forth elsewhere in this Agreement, all Transaction Costs shall be paid by the application of Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) belowParty incurring such expenses, whether or not the Merger is Mergers are consummated, provided, however, that Neurotrope and the Company shall share equally 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 law applicable to this Agreement and the transactions contemplated hereby; provided, further however, that Neurotrope and the Company shall also share equally all fees and expenses incurred in connection relation to the printing and filing with this Agreement 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 transactions contemplated hereby shall be paid by the party incurring such expensesSEC.
(b) If this Agreement is terminated by Neurotrope pursuant to Section 8.1(f8.1(d) or Section 8.1(h) (solely as a result of a failure by the Company to satisfy the closing condition set forth in Section 7.2(i)), then Company shall pay to Parent on the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in Neurotrope an amount equal to (i) $6,000,000 1,000,000 plus (the “Parent Termination Fee”ii) and shall reimburse Parent for the documented all reasonable out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub Neurotrope in connection with this Agreement and the transactions contemplated hereby Transactions incurred by Neurotrope, by wire transfer of same-day funds within ten (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration10) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after Business Days following the date on which Neurotrope submits to the Company is obligated true and correct copies of reasonable documentation supporting such expenses (the “Company Termination Fee”), plus any amount payable to pay the Parent Termination Fee Neurotrope pursuant to ParentSection 8.3(e).
(c) If this Agreement is terminated by Company pursuant to Section 8.1(b8.1(g) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in or Section 7.2(j8.1(j)) shall have been satisfied, then Parent Neurotrope shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to (i) $6,000,000 1,000,000 plus (the “Company Termination Fee” ii) and shall reimburse Company for the documented all reasonable out-of-pocket fees and expenses reasonably incurred by the Company in connection with this Agreement and the transactions contemplated hereby Transactions incurred by the Company, by wire transfer of same-day funds within ten (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration10) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after Business Days following the date on which Parent the Company submits to Neurotrope true and correct copies of reasonable documentation supporting such expenses (the “Neurotrope Termination Fee”), plus any amount payable to the Company pursuant to Section 8.3(e).
(d) If this Agreement is obligated terminated by Company pursuant to Section 8.1(e), then Neurotrope 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, by wire transfer of same-day funds within ten (10) Business Days following the date on which the Company submits to Neurotrope true and correct copies of reasonable documentation supporting such Third Party Expenses.
(e) If either Party fails to pay when due any amount payable by it under this Section 8.3, then (i) such Party shall reimburse the Company Termination Fee other Party for 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 8.3 and (ii) such Party shall pay to Companythe 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 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 plus three percent.
Appears in 1 contract
Samples: Merger Agreement (Neurotrope, Inc.)
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Mergers is consummated; provided, however, subject to the terms and conditions of that certain letter agreement between Arrow and the Company dated November 23, 2016 (the “Reimbursement Letter”), Arrow shall be responsible for the Expense Reimbursement, which shall be paid by Arrow by wire transfer of same-day funds within ten Business Days following delivery to Arrow, its Affiliates or its Representatives of an invoice by the Company or its Representatives setting forth the amounts to be reimbursed in accordance with the terms of the Reimbursement Letter; provided, further, that Arrow shall pay all fees and expenses, including attorneys’ and accountants’ fees and expenses, incurred in relation to the filings by the Parties under any filing requirement under the HSR Act, any foreign antitrust Legal Requirement, and under the rules and regulations of NASDAQ, including, such 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, applicable to this Agreement and the Contemplated Transactions. The payment of the Expense Reimbursement shall not relieve Arrow of any obligation to pay any termination fees (if applicable) or Third Party Expenses pursuant to this Section 9.3 (if applicable), each of which, for the sake of clarity, are separate obligations and are not subject to the cap set forth in the Reimbursement Letter.
(b) (i) If this Agreement is terminated by Arrow or the Company pursuant to Section 8.1(f9.1(e) or by the Company pursuant to Section 9.1(f), then Company and (A) at any time before the Arrow Stockholders’ Meeting an Acquisition Proposal with respect to Arrow shall pay have been publicly announced, disclosed or otherwise communicated to Parent on the Arrow Board (and shall not have been withdrawn) and (B) in the event this Agreement is terminated pursuant Section 9.1(e), within 12 months after the date of such termination, Arrow enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Arrow shall pay to the Company, within ten Business Days after termination by wire transfer (or, if applicable, concurrent with entry into a definitive agreement or the consummation of immediately available funds to an account designated by Parent a termination transaction), a nonrefundable fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub 500,000, in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts addition to any amount payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j9.3(c)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company.;
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b9.3(b) and (c) belowSection 9.3(c), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expensesexpense.
(b) If this Agreement is terminated pursuant Buyer shall pay the filing fees incurred in connection with 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.
(c) In the event that the Company elects to pursue discussions or negotiations with any Person relating to any Acquisition Proposal as contemplated by Section 8.1(f5.4(c), then the Company shall pay to Parent on promptly reimburse Buyer for all of the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee in an amount equal to $6,000,000 (the “Parent Termination Fee”) and shall reimburse Parent for the documented out-of-pocket costs and expenses (including the fees and expenses of its advisors, accountants and legal counsel) reasonably incurred by Parent and Merger Sub Buyer in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage the due diligence review of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”)Acquired Companies by Buyer. Company Any such payment shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) shall have been satisfied, then Parent shall pay to Company on the date of such termination be made by wire transfer of immediately available same day funds to an account designated by the Buyer within three (3) Business Days after the Company a termination fee in an amount equal elects to $6,000,000 pursue any such negotiations or discussions.
(d) In the “event that Buyer or the Company Termination Fee” shall terminate this Agreement pursuant to Section 9.1(e) and or clause (ii) of Section 9.1(i), the Company shall (i) promptly reimburse Company Buyer for all of the documented out-of-pocket costs and expenses (including the fees and expenses of its advisors, accountants and legal counsel) reasonably incurred by Company Buyer in connection with this Agreement and the transactions contemplated hereby and the due diligence review of the Acquired Companies by Buyer (including fees and other amounts payable but only to banks, investment banking firms and other financial institutionsthe extent not previously reimbursed pursuant to Section 9.3(c)), and their respective agents and counsel(ii) promptly pay Buyer a non-refundable fee equal to Twenty-Six Million Dollars ($26,000,000), but only if within twelve (12) months of such termination the transaction contemplated by such Superior Proposal or Acquisition Transaction, as the case may be, is consummated. Any payment required to be paid pursuant to clause (i) of this Section 9.3(c) will be made by wire transfer of same day funds within three (3) Business Days following such termination, and any payment required to be paid pursuant to clause (ii) of this Section 9.3(c) will be made by wire transfer of same day funds within three (3) Business Days after the consummation of such Superior Proposal or Acquisition Transaction, as the case may be. For purposes of this Section 9.3(c), “consummation” of a Superior Proposal or Acquisition Transaction shall occur on the closing date with respect to a merger or other business combination involving the Company or the acquisition of 50% or more of the outstanding shares of Company Capital Stock, or sale or transfer of all fees or substantially all assets (excluding the sale or disposition of counsel, accountants and consultants to assets in the Ordinary Course of Business) of the Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to CompanySubsidiaries.
Appears in 1 contract
Samples: Merger Agreement
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Galena and Sellas shall share equally 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 any foreign antitrust Legal Requirement applicable to this Agreement and the Contemplated Transactions; provided, further, that Galena and Sellas shall also share equally all fees and expenses incurred by engagement of the Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto.
(b) (i) If (A) this Agreement is terminated by Galena or Sellas pursuant to Section 9.1(e) or Section 9.1(f), (B) at any time before the Galena Stockholders’ Meeting a bona fide Acquisition Proposal with respect to Galena has been publicly announced, disclosed or otherwise communicated to the Galena Board of Directors and (C) in the event this Agreement is terminated pursuant to Section 8.1(f9.1(e), then Company shall pay to Parent on within 12 months after the date of such termination, Galena enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Galena shall pay to Sellas, within 10 Business Days after termination by wire transfer (or, if applicable, upon the earlier of immediately available funds such entry into a definitive agreement with respect to an account designated by Parent a termination Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $6,000,000 750,000 (the “Parent Sellas Termination Fee”) and shall reimburse Parent for the documented out-of-pocket fees and expenses reasonably incurred by Parent and Merger Sub ), in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts addition to any amount payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Parent Expenses”). Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated Sellas pursuant to Section 8.1(b9.3(c) and at the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in or Section 7.2(j9.3(e)) shall have been satisfied, then Parent shall pay to Company on the date of such termination by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Company.
Appears in 1 contract
Expenses; Termination Fees. (a) Subject to the application of Except as set forth in this Section 1.6 relating to the Seller Transaction Expenses, Section 5.13 relating to Additional Audit Expenses and Sections 8.3(b) and (c) below, whether or not the Merger is consummated9.03, all fees and expenses incurred in connection with this Merger Agreement and the transactions contemplated hereby by this Merger Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided however that (i) if this Merger Agreement is terminated by IPC pursuant to Section 9.01(e) as a result of an intentional act or omission by the Company, then the Company shall make a nonrefundable cash payment to IPC, 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 and filing fees) that have been paid or that may become payable by or on behalf of IPC in connection with the preparation and negotiation of this Merger Agreement and otherwise in connection with the Merger; and (ii) if this Merger Agreement is terminated by the Company pursuant to Section 9.01(f), then IPC shall make a nonrefundable cash payment to the Company, at the time specified in the last sentence of this Section 9.03, 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 IPC pursuant to Section 9.01(e), the nonrefundable payment referred to in clause "(i)" of the proviso to the first sentence of this Section 9.03 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(f), the nonrefundable payment referred to in clause "(ii)" of the proviso to the first sentence of this Section 9.03 shall be paid by IPC within two business days afer such termination.
(b) If this Merger Agreement is terminated by the Company pursuant to Section 8.1(f9.01(d), then the Company shall pay make a nonrefundable cash payment to Parent on IPC, at the date of such termination by wire transfer of immediately available funds to an account designated by Parent a termination fee time specified in the next sentence, in an amount equal to $6,000,000 (the “Parent Termination Fee”) aggregate amount of all fees and shall reimburse Parent for the documented reasonable, documented, out-of-pocket expenses (including with respect to fees, all attorneys' fees, accountants' fees and expenses reasonably incurred filing fees) that have been paid or that may become payable by Parent and Merger Sub or on behalf of IPC in connection with the preparation and negotiation of this Merger Agreement and otherwise in connection with the transactions contemplated hereby (including fees and other amounts payable to banksMerger, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Parent and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Parent Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate a maximum of $500,000 (250,000. In the “Parent Expenses”). case of termination of this Merger Agreement by the Company shall reimburse such Parent Expenses, promptly after receiving an invoice therefor from Parent. Parent may deliver such invoice on or after the date on which Company is obligated to pay the Parent Termination Fee to Parent.
(c) If this Agreement is terminated pursuant to Section 8.1(b) and at 9.01(d), the time of such termination all of the conditions to Parent’s obligations under this Agreement (other than the condition set forth in Section 7.2(j)) Termination Fee shall have been satisfied, then Parent shall pay to Company on the date of such termination be paid by wire transfer of immediately available funds to an account designated by Company a termination fee in an amount equal to $6,000,000 (the “Company Termination Fee” ) and shall reimburse Company for the documented out-of-pocket fees and expenses reasonably incurred by Company in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants and consultants to Company and its affiliates (whether or not such fees and other payments are measured by or based on a percentage of the Company Termination Fee or the proposed aggregate Merger Consideration) up to an aggregate of $500,000 (the “Company Expenses”). Parent shall reimburse IPC within two business days after such Company Expenses, promptly after receiving an invoice therefor from Company. Company may deliver such invoice on or after the date on which Parent is obligated to pay the Company Termination Fee to Companytermination.
Appears in 1 contract
