Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock. (b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events: (i) the termination of this Agreement by Parent pursuant to Section 10.1(d); (ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or (iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g). (c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer. (d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4. (e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Key Technology Inc), Merger Agreement (Advanced Machine Vision Corp), Merger Agreement (Key Technology Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsIf:
(i) (x) Parent or the termination of Company terminates this Agreement by Parent pursuant to Section 10.1(d)8.1(f) hereof, (y) on or prior to the date of the Company Stockholders Meeting any person (including the Company but not including Parent or Purchaser) shall have made a public announcement with respect to a Third Party Acquisition (as defined below) that contemplates a direct or indirect consideration (or implicit valuation) for Shares (including the value of any stub equity) in excess of the Merger Consideration and (z) within 12 months following such termination, the Company, directly or indirectly, enters into an agreement with respect to a Third Party Acquisition, or a Third Party Acquisition occurs;
(ii) the termination of (x) The Company terminates this Agreement by Parent pursuant to Section 10.1(a); or
(iii8.1(c)(iii) the termination of hereof at a time when Parent would have been permitted to terminate this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c8.1(d)(ii) as a result of a willful or bad faith breach of any covenant or agreement contained in this Agreement, (y) prior to such termination, any person (not including Parent or Purchaser) shall have disclosed publicly or to the failure to receive Company a Third Party Acquisition that contemplates a direct or indirect consideration (implicit valuation) for Shares (including the requisite approval value of any stub equity) in excess of the Company's outstanding Common Stock or Preferred StockMerger Consideration and (z) within 12 months following such termination, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6directly or indirectly, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement with respect to be acquired by any third party a Third Party Acquisition, or a Third Party Acquisition occurs; or 59 55 (including any current AMVC shareholderiii) (x) the Company terminates this Agreement pursuant to 8.1(c)(iv) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(dy) Parent shall pay the Company a fee of $2 million upon termination of terminates this Agreement by the Company pursuant to Section 10.1(e8.1(c)(iii) after a Breach by hereof and at such time Parent of would have been permitted to terminate this Agreement, Agreement under Section 8.1(d)(iii) hereof or (z) Parent terminates this Agreement pursuant to Section 10.1(f8.1(d)(iii) based upon a failure of hereof; then the conditions set forth in Sections 8.1 through 8.4.
Company shall pay to Parent (ea) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after following (i) in the first to occur case of the events described in Sections 11.1(bclause 8.3(a)(i) or (a)(ii), (c) the execution and delivery of such agreement or 11.1(d)such occurrence, as the case may be, and or (ii) any termination by Parent contemplated by Section 8.3(a)(iii) or (b) simultaneously with any termination by the expenses payable pursuant to Company contemplated by Section 11.1(a) shall be paid within five business days after receipt 8.3(a)(iii), a fee, in cash, of written documentation of the amount of expenses so payable; $140 million, provided, however, that the Company in no event shall be obligated to pay more than one such fee with respect to all such agreements and occurrences and such termination.
(b) If Parent or the Company terminates this Agreement pursuant to Section 8.1(g) hereof, (y) on or prior to the date of the Parent Stockholders Meeting any person (including Parent but not including the Company) shall have made a public announcement with respect to a Parent Third Party Acquisition (as defined below) that directly or indirectly contemplates (or by its terms would require) the rejection by the stockholders of Parent of the Parent Stockholder Approval contemplated herein, and (z) within 12 months following such termination, Parent, directly or indirectly, enters into an agreement with respect to a Parent Third Party Acquisition, or a Parent Third Party Acquisition occurs, then Parent shall pay to the Company within one business day following the execution and delivery of such agreement or such occurrence, as the case may be, be required to pay such fees or expenses to the othera fee, ifin cash, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement$140 million.
Appears in 3 contracts
Samples: Merger Agreement (Rohm & Haas Co), Merger Agreement (Rohm & Haas Co), Merger Agreement (Morton Acquisition Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein7.3, 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 Parent . Fees and expenses payable under this Section 7.3 to any party hereunder shall pay 100% include all costs of all fees collection and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with interest from the printing and filing date such payment is due at a rate per annum of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockLondon Interbank Offered Rate plus 2%.
(b) The Company Where an Acquisition Proposal exists or where an intention (whether or not conditional) to make an Acquisition Proposal has been communicated to Lady Luck or shall have been communicated directly to a director, Lady Luck's counsel or financial advisors, Lady Luck shall pay Parent Buyer a termination fee of $2 million upon 2,500,000 via wire transfer of same-day funds on the date of the earliest to occur of any one of the following events:
(i) the termination of this Agreement by Parent Buyer or Lady Luck pursuant to Section 10.1(d)7.1(d) provided the Acquisition Proposal has been communicated to stockholders of Lady Luck generally;
(ii) the termination of this Agreement by Parent Buyer pursuant to Section 10.1(a7.1(e); or
(iii) the termination of this Agreement by the Company or Parent Lady Luck pursuant to Section 10.1(g7.1(f). Lady Luck's payment of a termination fee pursuant to this subsection shall be the sole and exclusive remedy of Buyer against Lady Luck and any of its Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives with respect to the occurrences giving rise to such payment; provided that this limitation shall not apply in the event of a willful breach of this Agreement by Lady Luck.
(c) The Company In addition to the provisions of Section 7.3(b), if (i) Buyer or Lady Luck terminates this Agreement pursuant to Section 7.1(d), (ii) Buyer terminates this Agreement pursuant to Section 7.1(g) or Section 7.1(l), (iii) Lady Luck or Buyer terminates this Agreement pursuant to Section 7.1(b) and the condition specified in Section 6.1(c) shall pay Parent not have been satisfied because of facts or circumstances relating to Lady Luck, its employees or operations, or (iv) Buyer terminates this Agreement pursuant to Section 7.1(j), Lady Luck shall immediately thereafter reimburse Buyer and Merger Sub all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby plus, in the case of (ii) or (iii) above, a termination fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer1,500,000.
(d) Parent If (i) Lady Luck terminates this Agreement pursuant to Section 7.1(h) or Section 7.1(k) or (ii) Lady Luck or Buyer terminates this Agreement pursuant to Section 7.1(b) and the condition specified in Section 6.1(c) shall pay not have been satisfied because of facts or circumstances relating to Buyer, its employees or operations, Buyer shall immediately thereafter reimburse Lady Luck all fees and expenses incurred in connection with this Agreement and the Company transactions contemplated hereby plus a termination fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.41,500,000.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Lady Luck Gaming Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees and expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay the Parent a termination fee of $2 million upon 8,000,000 (the earliest to occur of any of “Termination Fee”) in the following eventsevent that this Agreement is terminated:
(i) by the termination of this Agreement by Parent pursuant to Section 10.1(d8.1(e);
(ii) by the termination of this Agreement by Parent Company pursuant to Section 10.1(a8.1(f); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g8.1(d) or (g) (but only, in the case of Section 8.1(g), as a result of an intentional or knowing material breach by the Company of a covenant or agreement of the Company set forth in this Agreement after the date hereof), so long as (A) before the date of such termination, an Acquisition Proposal shall have been publicly announced and not withdrawn and (B) within 12 months after the date of termination, the Company shall have consummated an Acquisition Proposal or the Company shall have entered into a definitive agreement for a transaction contemplated by an Acquisition Proposal (which Acquisition Proposal is ultimately consummated); provided, however, that, for purposes of this Section 8.3(b), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”. Any fee due under Section 8.3(b)(i) shall be paid to the Parent by wire transfer of same-day funds within two Business Days after the date of termination of this Agreement. Any fee due under Section 8.3(b)(ii) shall be paid to the Parent by wire transfer of same-day funds on the date of termination of this Agreement. Any fee due under Section 8.3(b)(iii) shall be paid to the Parent by wire transfer of same-day funds on the date on which the transaction referenced in clause (B) of Section 8.3(b)(iii) is consummated. If the Company fails to promptly make any payment required under this Section 8.3(b) and the Parent commences a suit to collect such payment, the Company shall indemnify the Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at the prime rate of Bank of America (or its successors or assigns) in effect on the date the payment was payable pursuant to this Section 8.3(b).
(c) The parties hereto acknowledge and agree that in no event shall the Company shall be required to pay Parent a fee of $500,000 upon the termination Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this Agreement by Parent at the same or at different times and the Company pursuant to Section 10.1(c) as a result occurrence of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerdifferent events.
(d) Parent shall pay The parties hereto acknowledge that the Company a fee agreements contained in this Section 8.3 are an integral part of $2 million upon termination of the transactions contemplated by this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreementand that, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreementwithout these agreements, the party to receive the fees or expenses was in material breach of its obligations under parties hereto would not enter into this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Aspect Medical Systems Inc), Merger Agreement (Covidien PLC), Merger Agreement (Aspect Medical Systems Inc)
Fees and Expenses. (a) Except as set forth provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall by this Agreement will be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense; provided, however, that Parent shall pay 100% the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees and expenses, other than attorneys and accountants fees (as paid to which each party shall bear its own expenses), incurred the SEC or under the HSR Act in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) Merger, will be borne equally by Parent and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that this Agreement is terminated:
(i) (x) by the termination Company Board or the Parent Board pursuant to Section 8.1(e), or by the Parent Board pursuant to Section 8.1(f), and (y) a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement by Parent pursuant and prior to Section 10.1(d)such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated;
(ii) by the termination Parent Board pursuant to Section 8.1(h) and a proposal for an Alternative Transaction with respect to the Company has been made to the Company or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn);
(iii) by the Parent Board or the Company Board pursuant to Section 10.1(a8.1(d) and the Company Board is not at the time of the Company Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(g) (without giving effect to the notice and cure provisions thereof); or
(iiiiv) the termination of this Agreement by the Company or Parent Board pursuant to Section 10.1(g8.1(k); then, in the case of a termination pursuant to (1) Section 9.3(b)(i), the Company shall pay to Parent an amount equal to $150,000,000 (the "Company Termination Fee"), by wire transfer of same day funds to an account designated by Parent, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(b)(ii) or Section 9.3(b)(iv), the Company shall pay to Parent an amount equal to the Company Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(b)(iii), the Company shall pay to Parent an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by Parent and (B) $105,000,000, by wire transfer of same day funds to an account designated by Parent, if, within 12 months after such termination, the Company enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(b), references to 20% in the definition of "Alternative Transaction" will be deemed to be references to 50%.
(c) The Company shall pay Parent a fee of $500,000 upon In the termination of event that this Agreement is terminated:
(i) (x) by the Parent Board or the Company Board pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.58.1(e), or by the Company Board pursuant to Section 10.1(f8.1(g), and (y) based on the failure of the condition set forth in Section 8.6, if in any a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such event within 24 months from a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn) and (z) within 12 months after such termination, Parent enters into any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated; or
(ii) by the Company Board pursuant to Section 8.1(i) and a proposal for an Alternative Transaction with respect to Parent has been made to Parent or its stockholders or such a proposal or an intention to make such a proposal has been publicly announced or has otherwise become publicly known after the date of this Agreement and prior to such termination (whether or not conditional and whether or not withdrawn);
(iii) by the Parent Board or the Company Board pursuant to Section 8.1(c) and the Parent Board is not at the time of the Parent Stockholders Meeting entitled to terminate this Agreement pursuant to Section 8.1(f) (without giving effect to the notice and cure provisions thereof); or
(iv) by the Parent Board pursuant to Section 8.1(j); then, in the case of a termination pursuant to (1) Section 9.3(c)(i), Parent shall pay to the Company an amount equal to $90,000,000 (the "Parent Termination Fee"), by wire transfer of same day funds to an account designated by the Company, upon the earlier to occur of the consummation of such Alternative Transaction and the execution of such agreement, as applicable, (2) Section 9.3(c)(ii) or Section 9.3(c)(iv), Parent shall pay to the Company an amount equal to the Parent Termination Fee, which payment shall be made within two business days after such termination and (3) Section 9.3(c)(iii), Parent shall pay to the Company an amount equal to (A) $45,000,000 within two business days after such termination, by wire transfer of same day funds to an account designated by the Company and (B) $45,000,000, by wire transfer of same day funds to an account designated by the Company, if, within 12 months after such termination, Parent or any of its Subsidiaries enters into an any definitive agreement providing for any Alternative Transaction or any Alternative Transaction is consummated. For purposes of this Section 9.3(c), references to 20% in the definition of "Alternative Transaction" will be deemed to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerreferences to 50%.
(d) Parent shall Each party acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. Accordingly, if a party fails promptly to pay the Company a fee of $2 million upon termination of this Agreement by the Company amounts due pursuant to this Section 10.1(e) after 9.3 and, in order to obtain such payment, the other party commences a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon suit that results in a failure of judgment against the conditions first party for the amounts set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b)this Section 9.3, (c) or 11.1(d) shall be paid within one business day after the first party will pay to occur of the events described other party interest on the amounts set forth in Sections 11.1(b)this Section 9.3 at a rate per annum equal to the three-month LIBOR (as reported in The Wall Street Journal (Northeast edition) or, if not reported therein, in another authoritative source selected by the party entitled to such amounts) on the date such payment was required to be made (cor if no quotation for three-month LIBOR is available for such date, on the next preceding date for which such a quotation is available) or 11.1(d), as the case may beplus 250 basis points, and the including reasonable fees and related expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementcollection.
Appears in 3 contracts
Samples: Merger Agreement (Dex Media West LLC), Merger Agreement (R H Donnelley Corp), Merger Agreement (Dex Media Inc)
Fees and Expenses. (a) Except The Parties agree that:
(i) if Parent terminates this Agreement pursuant to Section 9.01(d), then, no later than three Business Days after the date of Parent’s notice of such termination, the Company shall pay or cause to be paid to Parent the Termination Fee and shall reimburse Parent the amount of the GPC Termination Fee previously paid to or on behalf of the Company pursuant to Section 7.12 (the “GPC Reimbursement Fee”), in each case, in cash in immediately available funds;
(ii) if the Company terminates this Agreement pursuant to Section 9.01(f), then, prior to or substantially concurrently with the Company’s notice of such termination, the Company shall pay or cause to be paid to Parent the Termination Fee and shall reimburse Parent the amount of the GPC Reimbursement Fee, in each case, in cash in immediately available funds;
(iii) if (A) (1) the Company or Parent terminates this Agreement pursuant to Section 9.01(a) or (2) Parent terminates this Agreement pursuant to Section 9.01(c) on the basis of a breach of a covenant or agreement, (B) following the date hereof and prior to the termination of this Agreement, a Competing Company Transaction shall have been publicly announced or shall have been publicly known and, in either case, not publicly withdrawn and (C) on or prior to the date that is twelve (12) months after the date of such termination, the Company enters into a Competing Company Transaction Agreement or consummates a Competing Company Transaction (whether or not the applicable Competing Company Transaction is the same as the original Competing Company Transaction publicly announced or publicly known), then, on the earlier of the date the Company enters into a Competing Company Transaction Agreement or consummates any Competing Company Transaction, the Company shall pay or cause to be paid to Parent the Termination Fee and shall reimburse Parent the amount of the GPC Reimbursement Fee, in each case, in cash in immediately available funds; provided that, solely for purposes of this Section 9.03(a)(iii), the references to “20%” in the definition of Competing Company Transaction shall be deemed to refer to “50%”; and
(iv) if (A) Parent or the Company terminates this Agreement pursuant to Section 9.01(a) and the Offer Condition set forth in subsection clause (i) or clause (ii) (in the case of clause (ii), as a result of any Applicable Law or Governmental Order under Antitrust Laws) of Exhibit B shall not have been satisfied by the Termination Date, but all other Offer Conditions (other than (i) the Minimum Condition and (ii) those conditions that by their terms are to be satisfied at the consummation of the Offer; provided that such conditions in clause (ii) were then capable of being satisfied if the consummation of the Offer had taken place) have been satisfied or waived or (B) Parent or the Company terminates this Agreement pursuant to Section 9.01(b) and the Restraint giving rise to the right to terminate relates to any Applicable Law or Governmental Order under Antitrust Laws and such Restraint is not primarily caused by a breach of any covenants or agreements of the Company in this Agreement, then no later than three Business Days after the date of such termination, Parent shall pay or cause to be paid to the Company the Non-Clearance Fee in cash in immediately available funds.
(b) of Notwithstanding anything to the contrary set forth in this Agreement, the Parties agree that in no event shall (i) the Company be required to pay the Termination Fee or the GPC Reimbursement Fee on more than one occasion or (ii) Parent be required to pay the Non-Clearance Fee on more than one occasion.
(c) Except as expressly set forth in this Agreement, including this Section 11.1 or as otherwise provided herein9.03, all out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial institutions, experts and consultants and commitment fees and any other financing 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 Offer or the Merger or any other Contemplated Transaction is consummated; provided.
(d) Parent agrees that, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees notwithstanding anything in this Agreement to the contrary (as to which each party shall bear its own expensesincluding Section 9.02), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event that the Merger Termination Fee and the GPC Reimbursement Fee is not approved by paid in accordance with this Section 9.03, the holders payment of the Company's Common Stock Termination Fee and Preferred Stock.
(b) The the GPC Reimbursement Fee shall be the sole and exclusive remedy of Parent, its Subsidiaries, stockholders, Affiliates, officers, directors, employees and Representatives against the Company shall pay Parent a fee of $2 million upon the earliest to occur of or any of the following events:
its Representatives or Affiliates for, and in no event will Parent or any other such Person seek to recover any other money damages or seek any other remedy based on a claim in law or equity with respect to: (i) any loss suffered, directly or indirectly, as a result of the termination failure of this Agreement by Parent pursuant the Merger or the Offer, as the case may be, to Section 10.1(d);
be consummated, (ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
Agreement, (iii) any Liabilities or obligations arising under this Agreement or the Contemplated Transactions or (iv) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and upon payment of the Termination Fee and the GPC Reimbursement Fee in accordance with this Section 9.03, neither the Company, nor any Representative or Affiliate of the Company shall have any further Liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions. For the avoidance of doubt, the Parties acknowledge that the Non-Clearance Fee shall be the sole and exclusive remedy of the Company in the event of termination of this Agreement by under circumstances requiring the Company or Parent payment of the Non-Clearance Fee pursuant to Section 10.1(g).
(c9.03(a)(iv) The Company shall pay Parent a fee of $500,000 upon the above other than with respect to Fraud committed prior to such termination or for any Willful Breach prior to such termination of this Agreement by Parent any of its covenants or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition agreements set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to in which case Section 10.1(f) based upon a failure 9.02 shall apply notwithstanding the payment of the conditions set forth in Sections 8.1 through 8.4Non-Clearance Fee.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after Parties acknowledge that the first to occur agreements contained in this Section 9.03 are an integral part of the events described in Sections 11.1(b)Contemplated Transactions. In the event that the Company shall fail to pay the Termination Fee or the GPC Reimbursement Fee, (c) on the one hand, or 11.1(d)Parent shall fail to pay the Non-Clearance Fee, as on the case may beother hand, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of such payment shall be increased to include the costs and expenses so payable; providedincurred or accrued by or on behalf of Parent, howeveron the one hand, that in no event shall Parent or the Company, on the other hand, (in each case, including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.03, together with interest on such unpaid Termination Fee, GPC Reimbursement Fee or Non-Clearance Fee, as applicable, commencing on the case may bedate that the Termination Fee, be required to pay such fees the GPC Reimbursement Fee or expenses the Non-Clearance Fee, as applicable, became due, at a rate of interest equal to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementInterest Rate.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.03, 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, provided however, that Parent Seller and Buyer shall pay 100% of share equally all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses)attorneys' fees, incurred in connection with respect to the printing and filing of the Joint Proxy Statement/Prospectus Statement (including any related preliminary materials relating theretomaterials) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stocksupplements.
(b) The Company Seller shall pay Parent Buyer up to $2,000,000 as reimbursement for expenses of Buyer actually incurred relating to the transactions contemplated by this Agreement prior to termination (including, but not limited to, fees and expenses of Buyer' counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors), upon the termination of this Agreement by Buyer pursuant to (i) Section 8.01(d); (ii) Section 8.01(e), (iii) Section 8.01(b) as a result of the failure to satisfy the condition set forth in Section 7.02(a); or (iv) Section 8.01(g).
(c) Seller shall pay Buyer a termination fee of $2 million 22,500,000 upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent Buyer pursuant to Section 10.1(d8.01(e);; or
(ii) the termination of this Agreement by Parent Buyer pursuant to Section 10.1(a)8.01(g) after a breach by Seller of this Agreement; or
(iii) the termination of this the Agreement by the Company or Parent Buyer pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c8.01(d) as a result of the failure to receive the requisite vote for approval of the Company's outstanding Common Stock or Preferred StockSeller Voting Proposal by the stockholders of Seller at the Seller Meeting if, or at the time of such failure, there shall have been announced an Alternative Transaction relating to Seller which shall not have been absolutely and unconditionally withdrawn and abandoned.
(d) Buyer shall pay Seller up to $2,000,000 as reimbursement for expenses of Seller actually incurred relating to the transactions contemplated by Parent this Agreement prior to termination (including, but not limited to, but excluding any discretionary fees paid to such financial advisors), upon the termination of this Agreement by Seller pursuant to (i) Section 10.1(b8.01(d), (ii) based on Section 8.01(f), (iii) Section 8.01(b) as a failure result of the condition in Section 7.5, or by the Company pursuant failure to Section 10.1(f) based on the failure of satisfy the condition set forth in Section 8.67.03(a), if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party or (including any current AMVC shareholderiv) or a majority of AMVC Common Stock is acquired by a third party in a tender offerSection 8.01(g).
(de) Parent Buyer shall pay the Company Seller a termination fee of $2 million 22,500,000 upon the earliest to occur of the following events:
(i) the termination of this Agreement by the Company Seller pursuant to Section 10.1(e8.01(f); or
(ii) the termination of this Agreement by Seller pursuant to Section 8.01(g) after a Breach breach by Parent Buyer of this Agreement, or ; or
(iii) the termination of the Agreement by Seller pursuant to Section 10.1(f8.01(d) based upon as a failure result of the conditions set forth in Sections 8.1 through 8.4failure to receive the requisite vote for approval of this Agreement and the Merger by the stockholders of Buyer at the Buyer Meeting if, at the time of such failure, there shall have been announced an Alternative Transaction relating to Buyer which shall not have been absolutely and unconditionally withdrawn and abandoned.
(ef) The fees expenses and fees, if applicable, payable pursuant to Sections 11.1(bSection 8.03(b), (c8.03(c), 8.03(d) or 11.1(dand 8.03(e) shall be paid within one business day after demand therefor following the first to occur of the events giving rise to the payment obligation described in Sections 11.1(bSection 8.03(b), 8.03(c)(i), (cii) or 11.1(d(iii), as the case may be8.03(d) or 8.03(e)(i), and the expenses payable pursuant to Section 11.1(a(ii) shall be paid within five business days after receipt of written documentation of the amount of expenses so payableor (iii); provided, however, provided that in no event shall Parent Buyer or the CompanySeller, as the case may be, be required to pay such fees or the expenses and fees, if applicable, to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses and fees, if applicable, was in material breach of its obligations under this Agreement.
(g) As used in this Agreement, "Alternative Transaction" means either (i) a transaction pursuant to which any person (or group of persons) other than Buyer or Seller or their respective affiliates (a "Third Party"), acquires more than 20% of the outstanding shares of Seller Common Stock or Buyer Common stock, as the case may be, pursuant to a tender offer or exchange offer or otherwise, (ii) a merger or other business combination involving Seller or Buyer pursuant to which any Third Party acquires more than 20% of the outstanding shares of Seller Common Stock or Buyer Common Stock, as the case may be, or the entity surviving such merger or business combination, (iii) any other transaction pursuant to which any Third Party acquires control of assets (including for this purpose the outstanding equity securities of Subsidiaries of Seller or Buyer, and the entity surviving any merger or business combination including any of them) of Seller or Buyer having a fair market value equal to more than 20% of the fair market value of all the assets of Seller or Buyer, as the case may be, immediately prior to such transaction (except for sale of products or used equipment in the ordinary course of business), or (iv) any public announcement by a Third Party of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Learning Co Inc), Merger Agreement (Learning Co Inc), Merger Agreement (Broderbund Software Inc /De/)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Subject to Section 11.1 or as otherwise provided herein8.03(b), all fees and expenses Expenses incurred in connection with this Agreement Agreement, the Transactions, the solicitation of stockholder approvals and all other matters related to the transactions contemplated hereby consummation of the Merger shall be paid by the party incurring such expensesExpenses, whether or not the Merger or any other Transaction is consummated; provided, howeverexcept as otherwise set forth in this Agreement, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expensesincluding Section 2.02(a), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating theretoSection 6.04(c) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"Section 6.06(a); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
If this Agreement is validly terminated: (i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(iiA) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to (x) Section 10.1(c8.01(b) as a result of (but only if at such time Parent would not be prohibited from terminating this Agreement by the failure proviso in Section 8.01(b) and, in each case, excluding any termination for which the Parent Termination Fee is paid or becomes payable to receive the requisite approval of the Company's outstanding Common Stock Company pursuant to Section 8.03(b)(iv)) or Preferred Stock(y) Section 8.01(d), or (B) by Parent pursuant to Section 10.1(b8.01(g), then, if (1) based on a failure at or prior to the Termination Date, an Acquisition Proposal shall have been publicly announced, disclosed or otherwise made public that remains outstanding and is not publicly withdrawn as of (x) in the case of clause (A)(y), the date that is seven (7) Business Days prior to the Company Stockholders’ Meeting and (y) in the case of clause (A)(x) and clause (B), the Termination Date, and (2) within twelve (12) months of the condition in Section 7.5Termination Date, or an Acquisition Proposal is consummated by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6or any Company Subsidiary, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock definitive agreement with respect to an Acquisition Proposal is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement entered into by the Company pursuant or any Company Subsidiary or is submitted to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure the stockholders of the conditions set forth in Sections 8.1 through 8.4.
Company or any Company Subsidiary for adoption, then the Company shall pay Parent the amount of $20,000,000 (e) The fees payable pursuant to Sections 11.1(bthe “Company Termination Fee”), (c) or 11.1(d) which payment shall be paid made by wire transfer of immediately available funds within one business day after two (2) Business Days of the first earliest to occur of the events described in Sections 11.1(b)entry by the Company into the agreement with respect to an Acquisition Proposal, (c) or 11.1(d), as the case may be, and submission of an agreement with respect to an Acquisition Proposal to the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation stockholders of the amount of expenses so payable; provided, however, that in no event shall Parent Company for adoption or the Company, as consummation of any transaction that is the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination subject of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.an Acquisition Proposal;
Appears in 3 contracts
Samples: Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all fees and expenses incurred in connection with this Agreement the Merger and the transactions contemplated hereby other Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, except that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), expenses incurred in connection with the filing, printing and filing of mailing the Proxy Statement/Prospectus (including and all fees and expenses incurred in connection with obtaining any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved Required Antitrust Filings or obtaining any other consents or approvals from third parties necessary for Closing shall be borne 50% by Parent and 50% by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a nonrefundable fee of $2 million upon 100,000,000 (the earliest to occur of any of the following events:
“Company Termination Fee”) if: (i) the termination of Company terminates this Agreement by Parent pursuant to Section 10.1(d8.01(f);
; (ii) (A) any Person makes a Company Takeover Proposal (except that references in the termination definition of “Company Takeover Proposal” to “20%” shall be replaced by “50%”) (a “Qualifying Transaction”) and thereafter Parent terminates this Agreement by Parent pursuant to Section 10.1(a)8.01(c) or the Company terminates this Agreement pursuant to Section 8.01(b)(i) at a time when Parent had the right to terminate this Agreement pursuant to Section 8.01(c) and (B) within twelve (12) months of such termination the Company consummates, or enters into a definitive agreement to consummate and subsequently consummates, a Qualifying Transaction; or
(iii) the termination of Parent terminates this Agreement pursuant to Section 8.01(d); (iv) the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(i) at a time at which Parent had the right to terminate this Agreement pursuant to Section 8.01(d); or (v) (A) any Person makes a Company Takeover Proposal for a Qualifying Transaction that was publicly disclosed before the Company Stockholders Meeting but not publicly withdrawn by the date of the Company Stockholders Meeting and thereafter this Agreement is terminated pursuant to Section 8.01(b)(iii) and (B) within twelve (12) months of such termination the Company consummates, or enters into a definitive agreement to consummate and subsequently consummates, a Qualifying Transaction. The Company Termination Fee shall be paid by wire transfer to an account to be specified by Parent of same-day funds on the date of termination pursuant to clause (i) above, within two (2) Business Days after termination pursuant to clause (iii) or (iv) above, or on the date of the consummation of such transaction in the case of termination pursuant to clause (ii) or (v) above. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(c) If the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii), the Company shall pay to Parent, by wire transfer to the account specified in Schedule 6.06(b) of same-day funds within two (2) Business Days after such termination, an amount equal to that required to reimburse Parent, Merger Sub and their respective Affiliates for all reasonable out-of-pocket fees and expenses incurred in connection with this Agreement and the Transactions (the “Parent Expenses”), it being understood that in no event shall payment for the Parent Expenses under this Section 6.06(c) exceed $25,000,000; provided that in the event that the Company Termination Fee shall subsequently become payable pursuant to clause (iv) of (b), any amount previously paid by the Company in respect of the Parent Expenses shall be credited against the amount of the Company Termination Fee.
(d) Parent shall pay to the Company a nonrefundable fee of $190,000,000 (the “Reverse Termination Fee”) if this Agreement is terminated by the Company or Parent (i) pursuant to Section 10.1(g8.01(b)(ii).
(c) The Company shall pay Parent a fee , but only if the applicable Law or other legal restraint or prohibition making the consummation of $500,000 upon the termination of this Agreement by Parent Merger illegal is, or the Company Judgment permanently enjoining or otherwise permanently prohibiting the Merger arises under, an Antitrust Law, or (ii) pursuant to Section 10.1(c8.01(b)(i) as a result and, in the case of this clause (ii), at the time of such termination all of the conditions set forth in Article VII shall have been satisfied or, to the extent permitted by this Agreement and applicable Law, waived (other than (A) the conditions set forth in Section 7.01(b) or Section 7.01(c) (but, for purposes of Section 7.01(c), only if the failure to receive the requisite approval of the Company's outstanding Common Stock be satisfied is due to an order, injunction or Preferred Stockother Judgment arising under, or a Law that is, an Antitrust Law) or (B) any conditions that by their nature can be satisfied only on the Closing Date, provided that such conditions were capable of being satisfied if the Closing and the Closing Date had occurred on the date of such termination); provided, however, that Parent shall not be required to pay any amount pursuant to this Section 10.1(b6.06(d) based on in the event that a failure breach of the condition in Section 7.5any representation, warranty, covenant or agreement made by the Company pursuant to Section 10.1(f) based on in this Agreement is the principal cause of the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement 7.01(b) or Section 7.01(c) to be acquired satisfied. The Reverse Termination Fee shall be paid by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement wire transfer to an account to be specified by the Company of same-day funds within two (2) Business Days after termination pursuant to Section 10.1(eclause (i) after a Breach by or (ii) above. In no event shall Parent of this Agreement, or pursuant be required to Section 10.1(f) based upon a failure of pay the conditions set forth in Sections 8.1 through 8.4Reverse Termination Fee on more than one occasion.
(e) If the Company fails to promptly pay the Company Termination Fee or the Parent Expenses when due pursuant to Section 6.06(b) or Section 6.06(c) or Parent fails to promptly pay the Reverse Termination Fee when due pursuant to Section 6.06(d) and, in order to obtain such payment, Parent, on the one hand, or the Company, on the other hand, commences a suit that results in a final and non-appealable judgment against the Company for the amount due pursuant to Section 6.06(b) or Section 6.06(c) or a final and non-appealable judgment against Parent for the amount set forth in Section 6.06(d), the Company shall pay to Parent, or Parent shall pay to the Company, as applicable, its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) in connection with such suit, together with interest on such amount or portion thereof at the prime lending rate prevailing during such period as published in The fees Wall Street Journal, Eastern Edition, calculated on a daily basis from the date such amounts were required to be paid to the date of actual payment (any such amount, the “Termination Expenses and Interest”). Any amount payable pursuant to Sections 11.1(b), (c) or 11.1(dthis Section 6.06(e) shall be paid within one business by the applicable party by wire transfer of same-day after funds prior to or on the first date such payment is required to occur be made pursuant to such final and non-appealable judgment.
(f) Concurrently with the execution hereof, Parent shall pay on behalf of the events described Company the Company Termination Fee (as defined in Sections 11.1(b)the CD&R Merger Agreement) in accordance with the CD&R Merger Agreement.
(g) The parties agree that the agreements contained in this Section 6.06 are an integral part hereof and that the Company Termination Fee, (c) or 11.1(d)the Parent Expenses, as the case may be, Reverse Termination Fee and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementTermination Expenses and Interest constitute liquidated damages and not a penalty.
Appears in 3 contracts
Samples: Merger Agreement (Wesco International Inc), Merger Agreement (Anixter International Inc), Merger Agreement (Wesco International Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in In the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
that (bA) The Company shall pay Parent a fee of $2 million upon the earliest prior to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
Agreement, a Company Acquisition Proposal is publicly submitted, publicly proposed, publicly disclosed prior to, and not withdrawn prior to, the receipt of the Company Stockholder Approval, (iiB) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g8.1(e) (Outside Date) prior to the receipt of the Company Stockholder Approval or Section 8.1(f) (Failure to Obtain Company Stockholder Approval) and (C) the Company enters into a definitive agreement with respect to, or consummates, a Company Acquisition Proposal within twelve (12) months after the date this Agreement is terminated, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee upon the earliest date of when such definitive agreement is executed or such Company Acquisition Proposal is consummated. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction to “20%” shall be deemed to be to be a reference to “more than 50%.”
(b) In the event this Agreement is terminated by Parent pursuant to Section 8.1(f) (Failure to Obtain Company Stockholder Approval) or Section 8.1(g) (Company Change in Recommendation or Material Breach of Non-Solicit), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days of termination of this Agreement.
(c) The Company shall pay Parent a fee of $500,000 upon In the termination of this Agreement by event that: (i) Parent or the Company shall terminate this Agreement pursuant to Section 10.1(c8.1(e) as a result and, at the time of such termination, (x) the conditions set forth in Section 7.1(a), Section 7.1(b), Section 7.3(a) and Section 7.3(b) have been satisfied (other than, in the case of Section 7.1(b), for the failure to receive be satisfied resulting from an injunction or order entered or issued by a Governmental Entity under any Antitrust Law or the requisite approval adoption, enactment or promulgation by a Governmental Entity of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(bany Antitrust Law) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(fand (y) based on the failure of the condition set forth in Section 8.67.1(c) has not been satisfied or (ii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) as the result of an injunction or order entered or issued by a Governmental Entity under any Antitrust Law or the adoption, if enactment or promulgation by a Governmental Entity of any Antitrust Law, or (iii) the Company shall terminate this Agreement pursuant to Section 8.1(h) or Parent or the Company shall terminate this Agreement pursuant to Section 8.1(e) at a time when the Company could have terminated this Agreement pursuant to Section 8.1(b) or Section 8.1(h), then in any such event case Parent will pay to the Company the Parent Termination Fee (A) in the case of the termination by the Company, within 24 months from the date two (2) Business Days of termination of this Agreement or, (B) in the Company enters into an agreement to be acquired case of termination by any third party (including any current AMVC shareholder) or a majority Xxxxxx, contemporaneously with the termination of AMVC Common Stock is acquired by a third party in a tender offerthis Agreement.
(d) As used herein, “Company Termination Fee” means a cash amount equal to $318,000,000. As used herein, “Parent shall pay the Company Termination Fee” means a fee of cash amount equal to $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4600,000,000.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement, Merger Agreement
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees and expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay the Parent a fee of $2 million upon the earliest to occur of any of Termination Fee in the following eventsevent that this Agreement is terminated:
(i) by the termination of this Agreement by Parent pursuant to Section 10.1(d8.1(e);
(ii) by the termination of this Agreement by Parent Company pursuant to Section 10.1(a8.1(f); or
(iii) by either the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c8.1(b) as a result of or Section 8.1(d) or the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b8.1(g) based on (arising from a failure breach of the condition in Section 7.5, Company’s covenants or by the Company pursuant to Section 10.1(f) based on the failure of the condition agreements set forth in Section 8.6this Agreement), if in any such event within 24 months from (A) before the date of such termination, an Acquisition Proposal shall have been publicly announced and not irrevocably withdrawn at least two (2) Business Days prior to the earlier of the date of such termination, the Outside Date and the-then scheduled expiration date of the Offer and (B) within 12 months after the date of such termination, any Acquisition Proposal is consummated or a definitive agreement with respect to any Acquisition Proposal is entered into and such Acquisition Proposal is thereafter consummated; provided, however, that, for purposes of Section 8.3(b)(iii), all references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”. Any fee due under Section 8.3(b)(i) shall be paid by or on behalf of the Company to the Parent by wire transfer of same-day funds within two (2) Business Days after the date of termination of this Agreement. Any fee due under Section 8.3(b)(ii) shall be paid by or on behalf of the Company to the Parent by wire transfer of same-day funds prior to or simultaneously with (and as a condition to the effectiveness of) such termination. Any fee due under Section 8.3(b)(iii) shall be paid by or on behalf of the Company to the Parent by wire transfer of same-day funds within one (1) Business Day after the date any transaction referenced in clause (B) of Section 8.3(b)(iii) is consummated.
(c) In no event shall the Company be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this Agreement at the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) same or a majority at different times and the occurrence of AMVC Common Stock is acquired by a third party in a tender offerdifferent events.
(d) The agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, and the parties hereto would not enter into this Agreement absent such agreement. Notwithstanding Section 8.2 or any other provision of this Agreement, other than in the case of any Willful Breach of Section 1.2, Section 6.1 or Section 6.4, payment of the fees described in this Section 8.3 shall constitute the sole and exclusive remedy of the Parent shall pay and the Company a fee of $2 million upon Purchaser in connection with any termination of this Agreement in the circumstances in which such fees became payable. Other than in the case of any Willful Breach of Section 1.2, Section 6.1 or Section 6.4, in the event that the Parent shall receive the Termination Fee, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Parent, the Purchaser, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of the Parent, the Purchaser, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any other claim, action or proceeding against the Company pursuant to Section 10.1(e) after a Breach by Parent or any of its Affiliates or any Representative of the Company or any of its Affiliates arising out of this Agreement, or pursuant to Section 10.1(f) based upon a failure any of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees transactions contemplated hereby or any matters forming the basis for such termination. If the Company fails promptly to pay the Termination Fee when due and payable pursuant to Sections 11.1(b)this Agreement and, (c) in order to obtain such payment, the Parent commences an action or 11.1(d) other proceeding that results in an award against the Company for such fee, the Company shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of pay interest on the amount of expenses so payable; provided, however, that in no event shall Parent or such fee from the Company, as the case may be, be date such payment was required to pay be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such fees or expenses payment was required to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementbe made.
Appears in 2 contracts
Samples: Merger Agreement (Cynosure Inc), Merger Agreement (Hologic Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or as otherwise provided hereinnot the Redemption and the Merger are consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses, whether except as provided in Section 9.1(b), 9.1(c), 9.1(d) and 9.1(f).
(b) If this Agreement is terminated by Energy Partners pursuant to Section 8.1(c) or not by Hydrocarbon pursuant to Section 8.1(d)(i), then Hydrocarbon shall pay to the Merger Escrow Agent for the benefit of Energy Partners the Hydrocarbon Termination Fee. If this Agreement is consummatedterminated by Hydrocarbon pursuant to Section 8.1(d)(ii), then Energy Partners shall pay to Hydrocarbon in immediately available funds the Energy Partners Termination Fee. If this Agreement is terminated by Energy Partners pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v) or by Hydrocarbon or Energy Partners pursuant to Section 8.1(b)(iii), then Hydrocarbon shall pay to the Escrow Agent for the benefit of Energy Partners the Expenses of Energy Partners; provided, however, that Parent Hydrocarbon shall not be obligated to pay 100% of all fees and expenses, other than attorneys and accountants fees (as the Expenses to which each party shall bear its own expenses), incurred Energy Partners in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii8.1(b)(iii) if Xx. Xxx failed to comply with the termination terms of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g)Fox Support Agreement.
(c) The Company shall pay Parent a fee of $500,000 upon In the termination event that (i) an Acquisition Proposal with respect to Hydrocarbon has been proposed by any Person (meaning, for the purpose of this Agreement by Parent Section 9.1(c), a Person other than Energy Partners and MergerCo) or the Company pursuant any Person has publicly announced its intention (whether or not conditional) to Section 10.1(c) as a result of the failure make such an Acquisition Proposal or such an Acquisition Proposal or such intention has otherwise become publicly known to receive the requisite approval of the CompanyHydrocarbon's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if stockholders generally and in any event such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) proposal or a majority of AMVC Common Stock intention is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately not subsequently withdrawn prior to the termination of this Agreement, (ii) thereafter this Agreement is terminated by either Hydrocarbon or Energy Partners pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Energy Partners pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v), and (iii) within 12 months after the party to receive the fees termination of this Agreement, Hydrocarbon or expenses was in material breach any of its obligations Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal, or an Acquisition Proposal with respect to Hydrocarbon or any of its Subsidiaries is consummated, then Hydrocarbon shall pay to the Escrow Agent for the benefit of Energy Partners, if and when consummation of such Acquisition Proposal occurs, the Hydrocarbon Termination Fee less all Expenses of Energy Partners previously paid to Energy Partners; provided that for purposes of this Section 9.1(c), "50%" shall be substituted for "20%" in the definition of Acquisition Proposal.
(d) If this Agreement is (i) terminated by Hydrocarbon or Energy Partners pursuant to Section 8.1(b)(vi), or (ii) terminated by Hydrocarbon pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v), then Energy Partners shall pay to Hydrocarbon the Expenses of Hydrocarbon.
(e) Except as otherwise provided herein, any payment of the Hydrocarbon Termination Fee, the Energy Partners Termination Fee or Expenses pursuant to this Section 9.1 shall be made by wire transfer of immediately available funds to an account of the Escrow Agent designated by Energy Partners or an account designated by Hydrocarbon, as applicable, within one Business Day after such payment becomes payable; provided, however, that any payment of the Hydrocarbon Termination Fee pursuant to Section 9.1(b) by Hydrocarbon as a result of termination under Section 8.1(d)(i) shall be made prior to or concurrently with termination of this Agreement; provided, further, that any payment of the Hydrocarbon Termination Fee pursuant to Section 9.1(c) shall be made contemporaneously with the consummation of the Acquisition Proposal as provided in clause (iii) of Section 9.1(c). The parties acknowledge that the agreements contained in this Section 9.1 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, none of the parties would enter into this Agreement.
(i) If the Redemption and the Merger are consummated, the Surviving Entity shall pay, or cause to be paid, any and all property or transfer taxes imposed on either party in connection with the Merger, (ii) expenses incurred in connection with filing, printing and mailing the Joint Proxy Statement and the Registration Statement shall be paid by Energy Partners and (iii) filing fees payable pursuant to the HSR Act, regulatory laws and other filing fees incurred in connection with this Agreement shall be paid by the party incurring the fees. As used in this agreement, "Expenses" includes good faith estimate of all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the preparation, printing, filing and mailing of the Joint Proxy Statement and the Registration Statement and the solicitation of stockholder/unitholder approvals and all other matters related to the transactions contemplated hereby; provided that the amount of Expenses payable by one party to another under this Section 9.1 shall not exceed $6.0 million.
(g) Any amounts paid to the Escrow Agent pursuant to this Article IX, together with interest thereon (the "Escrow Fund"), shall be released by the Escrow Agent to Energy Partners as follows:
(i) Prior to the end of the calendar year in which the payment was made to the Escrow Agent, Energy Partners shall submit to the Escrow Agent a certificate demanding a portion of the Escrow Fund equal to no greater than 70% of the maximum remaining amount which, in the good faith view of the General Partner, may still be taken into the gross revenues of Energy Partners without exceeding the permissible qualifying income (as defined in Section 7704 of the Code) limits for a publicly traded partnership, after taking into consideration all other sources of non-qualifying income (such maximum remaining amount, the "Non-Qualifying Income Cushion"), and the Escrow Agent shall within one Business Day thereafter, pay Energy Partners the amount demanded, by wire transfer of immediately available funds to an account designated by Energy Partners;
(ii) During the calendar year following the date that the payment was made to the Escrow Agent but prior to the passage of 30 calendar days following the filing of the IRS Form 1065 for the prior year, Energy Partners shall submit to the Escrow Agent a certificate identifying the actual Non-Qualifying Income Cushion from the prior year. If the payment contemplated by clause (i) above was (A) less than 80% of the actual Non-Qualifying Income Cushion, then Energy Partners shall submit to the Escrow Agent a certificate demanding a portion of the Escrow Fund equal to an amount which, when combined with the payment contemplated by clause (i) will equal 90% of the actual Non-Qualifying Income Cushion, and the Escrow Agent shall within one Business Day thereafter, pay Energy Partners the amount demanded, (B) greater than or equal to 80%, but less than or equal to 90% of the actual Non-Qualifying Income Cushion, then Energy Partners shall notify the Escrow Agent that it will not demand any additional payments from the Escrow Account, and (C) greater than 90% of the actual Non-Qualifying Income Cushion, then Energy Partners shall deliver a certificate to such effect to the Escrow Agent and return to the Escrow Fund an amount equal to the excess of the payment contemplated by clause (i) over 80% of the Non-Qualifying Income Cushion. Any payment under this clause (ii) shall be made by the Escrow Agent, or Energy Partners, as the case may be, by wire transfer of immediately available funds to an account designated by Energy Partners or the Escrow Agent, as the case may be; and
(iii) Within one Business Day following the earlier of (A) completion of the procedures as contemplated by Section 9.1(g)(ii) above and (B) the passage of 30 days following the filing of the IRS Form 1065 for the prior year, the Escrow Agent shall pay Hydrocarbon the remainder, if any, of the Escrow Fund, by wire transfer of immediately available funds to an account designated by Hydrocarbon. Hydrocarbon acknowledges and agrees that (x) the amount of a payment, if any, pursuant to Section 9.1(g)(ii) above is uncertain, and that depending on the amount of the demands made by Energy Partners pursuant to Section 9.1(g)(ii) above, the Escrow Fund may be insufficient to permit payments to Hydrocarbon pursuant to Section 9.1(g)(ii) above, and (y) it shall have no rights to any amounts in the Escrow Fund (other than as contemplated by this subsection (h)) or to audit or inquire into the amounts demanded by or paid to Energy Partners.
(h) Hydrocarbon agrees that, notwithstanding any right that it or the General Partner may otherwise have, including pursuant to the Partnership Agreement, the Amended and Restated Partnership Agreement, or otherwise, it hereby waives and renounces for itself and its affiliates, and shall cause the General Partner to waive and renounce, any distribution by Energy Partners to its partners of any amount paid to Energy Partners by the Escrow Agent, together with an income allocation associated with such distribution, it being understood that following payment to Energy Partners from the Escrow Agent, Energy Partners will make a distribution to the holders of common units of Energy Partners who are unaffiliated with Hydrocarbon.
(i) This Section 9.1 shall survive any termination of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Redemption and Merger (Markwest Hydrocarbon Inc), Agreement and Plan of Redemption and Merger (Markwest Energy Partners L P)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Expenses shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, provided that Parent shall pay 100% of all the Parties will share equally any Form S-4 filing fees and expenses, other than attorneys and accountants fees (as may be required to which each party shall bear its own expenses), incurred in connection with consummate the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved transactions contemplated by the holders of the Company's Common Stock and Preferred Stockthis Agreement.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that this Agreement is terminated:
(i) the termination of this Agreement by Parent CCPT V or CMFT pursuant to Section 10.1(d9.1(b)(i) or Section 9.1(b)(iii) and, (A) prior to the Stockholders Meeting, an Acquisition Proposal with respect to CCPT V has been publicly announced, disclosed or otherwise communicated to CCPT V’s stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal (and such Acquisition Proposal or intention shall not have been publicly withdrawn on a bona fide basis without qualification at least three (3) Business Days prior to the Outside Date (with respect to a termination pursuant to Section 9.1(b)(i)) or the Stockholders Meeting (with respect to a termination pursuant to Section 9.1(b)(iii))) and (B) within twelve (12) months after the date of such termination, (I) a transaction in respect of an Acquisition Proposal with respect to CCPT V is consummated, (II) CCPT V enters into a definitive agreement in respect of an Acquisition Proposal and such Acquisition Proposal is actually consummated thereafter, or (III) CCPT V recommends to stockholders of CCPT V or fails to recommend against an Acquisition Proposal structured as a tender offer or exchange offer and such Acquisition Proposal is actually consummated thereafter (with, for all purposes of clause (I), (II) and (III) of this Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” increased to 50%), then CCPT V shall pay to CMFT (1) the Full Termination Payment and (2) up to one million six hundred seventy thousand dollars ($1,670,000) as reimbursement for CMFT’s Expenses;
(ii) the termination of this Agreement by Parent CCPT V pursuant to Section 10.1(a9.1(c)(ii), then CCPT V shall pay to CMFT an amount equal to (A)(1) the Go Shop Termination Payment if such termination occurs no later than ten (10) Business days after the Go Shop Period End Time (or, in the event of timely delivery of a CCPT V Change Notice, the negotiation period contemplated by Section 7.3(f)(ii)) or (2) the Full Termination Payment if clause (1) is inapplicable and (B) up to one million six hundred seventy thousand dollars ($1,670,000) as reimbursement for CMFT’s Expenses;
(iii) by CMFT pursuant to Section 9.1(d)(ii), then CCPT V shall pay to CMFT (A)(1) the Go Shop Termination Payment if the event giving rise to CMFT’s termination right occurred no later than ten (10) Business days after the Go Shop Period End Time (or, in the event of timely delivery of a CCPT V Change Notice, the negotiation period contemplated by Section 7.3(f)(ii)) or (2) the Full Termination Payment if (1) is inapplicable and (B) up to one million six hundred seventy thousand dollars ($1,670,000) as reimbursement for CMFT’s Expenses;
(iv) by CCPT V pursuant to Section 9.1(c)(i), then CMFT shall pay to CCPT V an amount up to $1,670,000 as reimbursement for CCPT V’s Expenses; or
(iiiv) the termination of this Agreement by the Company or Parent CMFT pursuant to Section 10.1(g9.1(d)(i).
(c) The Company , then CCPT V shall pay Parent a fee of to CMFT an amount up to one million six hundred seventy thousand dollars ($500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c1,670,000) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerreimbursement for CMFT’s Expenses.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cole Credit Property Trust V, Inc.), Merger Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or not the Merger is consummated, except as otherwise specifically provided herein, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The If this Agreement is terminated pursuant to Section 8.1(c)(2) (Adverse Recommendation Change) or Section 8.1(c)(3) (Alternative Transaction), then the Company shall pay to Parent (by wire transfer of immediately available funds), within two (2) Business Days after such termination, a nonrefundable fee of in an amount equal to $2 million upon 100,000 (the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g"Termination Fee").
(c) The If this Agreement is terminated pursuant to Section 8.1(c)(1) (Company Uncured Breach), then the Company shall pay to Parent a fee (by wire transfer of $500,000 upon immediately available funds), at or prior to such termination, the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerTermination Fee.
(d) Parent shall pay the Company a fee of $2 million upon termination of If this Agreement by the Company is terminated pursuant to Section 10.1(e8.1(b)(2) after a Breach by Parent (Outside Date) or Section 8.1(b)(3) (Stockholder No Vote) and (i) prior to such termination (in the case of this Agreement, or termination pursuant to Section 10.1(f8.1(b)(2)) based upon or the Company Stockholder Meeting (in the case of termination pursuant to Section 8.1(b)(3)), an Acquisition Proposal shall have been publicly announced and not publicly withdrawn, and (ii) within twelve (12) months following the date of such termination the Company shall have (A) entered into a failure definitive agreement with respect to, or (B) consummated, an Acquisition Proposal, the Company shall pay to Parent (by wire transfer of immediately available funds), within two (2) Business Days after entering into such definitive agreement, or consummating such Transaction, the conditions set forth in Sections 8.1 through 8.4Termination Fee.
(e) The fees payable In the event that this Agreement is terminated pursuant to Sections 11.1(bSection 8.1(b)(3), (cStockholder No Vote) or 11.1(dthe Company shall as promptly as possible (but in any event within three (3) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (cBusiness Days) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after following receipt of written documentation an invoice therefor pay all of the amount of Parent's documented reasonable out-of-pocket fees and expenses so payable; provided, however, that in no event shall (including reasonable legal and other third-party advisors fees and expenses) actually incurred by Parent and its Affiliates on or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement ("Parent Expenses"); provided that the amount of any payment of the Parent Expenses pursuant to this Section 8.3(e) shall be credited against any obligation of the Company to pay the Termination Fee pursuant to Section 8.3(d) (Parent Uncured Breach).
(f) The Company acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, the party to receive the fees or expenses was in material breach of its obligations under and that without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to pay any amount due to Parent pursuant to this Section 8.3 when due, the Company shall pay the costs and expenses (including legal fees and expenses) in connection with any Action taken to collect payment (including the prosecution of any lawsuit or other legal action), together with interest on the unpaid amount at the prime lending rate prevailing at such time as published in The Wall Street Journal from the date such amount was first payable to the date it is paid.
Appears in 2 contracts
Samples: Merger Agreement (American Cannabis Company, Inc.), Merger Agreement (American Cannabis Company, Inc.)
Fees and Expenses. (a) 11.3.1 Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinin this Section 11.3, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.
11.3.2 In the event that this Agreement is terminated: (A) by CUNB pursuant to Section 11.1(iii)(B); providedor (B) by either CUNB or FENB pursuant to Section 11.1(ii)(C) by reason of the failure to obtain the FENB Shareholder Approval following FENB taking any action that constitutes an Adverse Recommendation Change and within twelve (12) months after the date of such termination, howeverFENB enters into an agreement in respect of any Acquisition Proposal; then, that Parent FENB shall pay 100% to CUNB a termination fee of all fees and expenses, other than attorneys and accountants fees Four Million Dollars ($4,000,000) (the “CUNB Termination Fee”) plus any Party Expenses (as hereinafter defined) of CUNB. Payment of the CUNB Termination Fee shall be made by wire transfer of same day funds to which each party shall bear its own expensesthe account or accounts designated by CUNB as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), incurred in connection with the printing case of termination by CUNB pursuant to Section 11.3.2(A) or in the case of termination by FENB pursuant to Section 11.3.2(B). The payment by FENB and filing the acceptance by CUNB of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) CUNB Termination Fee and any amendments or supplements thereto (together, Party Expenses of CUNB pursuant to this Section 11.3.2 shall be the "Proxy Expenses"); provided further, however, that Company shall pay 100% sole and exclusive remedy of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent CUNB with a fee of $2 million upon the earliest respect to occur of any of the following events:
(i) the termination of this Agreement by Parent CUNB pursuant to Section 10.1(d11.1(iii)(B) or by either CUNB or FENB pursuant to Section 11.1(ii)(C) by reason of the failure to obtain the FENB Shareholder Approval as specified in Section 11.3.2(B);.
11.3.3 In the event that this Agreement is terminated by FENB pursuant to Section 11.1(iv)(B), then CUNB shall pay to FENB a termination fee of One Million Dollars (ii$1,000,000) (the “FENB Termination Fee”) plus any Party Expenses of FENB. Payment of the FENB Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by FENB as promptly as reasonably practicable after termination by FENB. The payment by CUNB and the acceptance by FENB of the FENB Termination Fee and any Party Expenses of FENB pursuant to this Section 11.3.3 shall be the sole and exclusive remedy of FENB with a respect to the termination of this Agreement by Parent FENB pursuant to Section 10.1(a11.1(iv)(B); or
(iii) , provided, however, that in lieu of the termination of this Agreement by the Company or Parent FENB pursuant to Section 10.1(g11.1.(iv)(A) or (B), FENB may elect not to terminate this Agreement and to exercise its rights under Section 11.3.6 below, in which event, FENB Shall not be entitled to the FENB Termination Fee or any Party Expenses.
11.3.4 In the event that this Agreement is terminated by CUNB pursuant to Section 11.1(iii)(A) or by FENB pursuant to Section 11.1(iv)(A), then the breaching party shall reimburse the non-breaching party all of its reasonable out-of-pocket fees and expenses (cincluding all fees and expenses of counsel, accountants, investment bankers, experts and consultants to the non-breaching party) The Company shall pay Parent a fee of $500,000 upon incurred by the termination non-breaching party or on its behalf in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Party Expenses”), up to a maximum amount of One Million Dollars ($1,000,000). Payment of the Party Expenses shall be made by Parent wire transfer of same day funds to the account or accounts designated by the Company non-breaching party entitled to payment of the Party Expenses within two (2) Business Days after the breaching party having been notified of the amount thereof by the non-breaching party.
11.3.5 Each of FENB and CUNB acknowledges that the agreements contained in this Section 11.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, FENB, CUNB and CUB would not enter into this Agreement; accordingly, if any party fails promptly to pay any amounts due to the other party pursuant to this Section 10.1(c11.3, and, in order to obtain such payment, the party to which any amount under this Section 11.3 is due and owing from the other party commences a suit that results in a judgment against such other party for the amounts set forth in this Section 11.3, the non-prevailing party shall pay to the prevailing party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts due pursuant to this Section 11.3 from the date such payment was required to be made until the date of payment at the prime lending rate as a result published in The Wall Street Journal in effect on the date such payment was required to be made.
11.3.6 The parties agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any of the failure provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached (including failing to receive the requisite approval take such actions as are required of the Company's outstanding Common Stock or Preferred Stockthem hereunder to consummate this Agreement). Accordingly, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition except as otherwise set forth in Section 8.611.3.3, if in any such event within 24 months from each of the date parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination terms and provisions of this Agreement by the Company pursuant in any state or federal court as provided in Section 13.11, this being in addition to Section 10.1(e) after a Breach by Parent of this Agreement, any other remedy to which such party is entitled at law or pursuant to Section 10.1(f) based upon a failure in equity. Each of the conditions set forth parties hereby further waives any defense in Sections 8.1 through 8.4any action for specific performance that a remedy at law would be adequate.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (CU Bancorp), Merger Agreement (CU Bancorp)
Fees and Expenses. (a) Except as set forth expressly provided otherwise in subsection (b) of this Section 11.1 or as otherwise provided hereinAgreement, all fees and expenses incurred in connection with this Agreement Agreement, the Offer, the Merger and the other transactions contemplated hereby by this Agreement shall be paid by the party Party incurring such fees or expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following events:
(i) the termination of event that this Agreement is terminated by Parent pursuant to Section 10.1(d7.01(f) or by the Company pursuant to Section 7.01(e);
, then the Company shall pay, or cause to be paid, to Parent the Company Termination Fee (iii) as promptly as practicable (and, in any event, on or before the third (3rd) Business Day) following the date of such termination (in the case of this Agreement termination by Parent pursuant to Section 10.1(a7.01(f); or) or (ii) concurrently with such termination (in the case of termination by the Company pursuant to Section 7.01(e)), by wire transfer of immediately available U.S. dollars to the applicable account or accounts designated in writing to the Company by Parent.
(iiic) In the termination of event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g).
7.01(b)(i) (c) The unless the Company shall pay Parent a fee of $500,000 upon the termination of would have been entitled to terminate this Agreement by Parent or the Company pursuant to Section 10.1(c7.01(d) as a result of the failure but for such termination pursuant to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, Section 7.01(b)(i)) or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.57.01(c), or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6and, if in any such event within 24 months from case, (i) at any time after the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, an Acquisition Proposal shall have been publicly announced and not publicly withdrawn prior to such date and (ii) within twelve (12) months after such termination, the party Company enters into a definitive agreement with respect to receive any Acquisition Proposal and such Acquisition Proposal is thereafter consummated (which need not be the fees or expenses same Acquisition Proposal that was in material breach publicly announced prior to the termination of its obligations under this Agreement.), then the Company shall pay, or cause to be paid, to Parent the Company Termination Fee prior to or concurrently with the consummation of such transaction by wire transfer of immediately available U.S. dollars to the applicable account or accounts designated in writing to the Company by Parent. For purposes of only subclause (ii) of this Section 7.03(c), the term “Acquisition
Appears in 2 contracts
Samples: Merger Agreement (Telecommunication Systems Inc /Fa/), Merger Agreement (Comtech Telecommunications Corp /De/)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 5.6(b), whether or as otherwise provided hereinnot the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the Proxy Statement, registration and filing fees incurred in connection with the Proxy Statement, and fees, costs and expenses associated with compliance with applicable state securities laws in connection with the Merger shall be shared equally by Parent and the Company.
(b) In the event that (i) either Parent or the Company shall terminate this Agreement pursuant to Section 7.1(e), (ii) either Parent or the Company shall terminate this Agreement pursuant to Section 7.1(f)(ii) and, prior to the time of the meeting of the Company's stockholders, there shall have been (A) a Trigger Event with respect to the Company or (B) a Takeover Proposal (as defined in Section 5.12) with respect to the Company which at the time of the meeting of the Company's stockholders shall not have been (x) rejected by the Company and (y) withdrawn by the third party, or (iii) Parent shall terminate this Agreement pursuant to Section 7.1(c), due in whole or in part to any failure by the Company to use its best efforts to perform and comply with all agreements and conditions required by this Agreement to be performed or complied with by the Company prior to or on the Closing Date or any failure by the Company's affiliates to take any actions required to be taken hereby, and prior thereto there shall have been (A) a Trigger Event with respect to the Company or (B) a Takeover Proposal with respect to the Company which shall not have been (x) rejected by the Company and (y) withdrawn by the third party, then in each case, the Company shall reimburse Parent for costs and expenses incurred by Parent in the amount of $1,500,000, without any requirement that Parent account for actual costs or expenses, whether and, in addition, the Company shall promptly pay to Parent the sum of $5,500,000. In the event that Parent or not the Merger is consummatedCompany shall terminate this Agreement pursuant to Section 7.1(c) or (d), as applicable, due to a willful breach of this Agreement by the non-terminating party, the non- terminating party shall reimburse the terminating party for actual expenses incurred within a reasonable time after presentment by the terminating party to the non-terminating party of documentary evidence that such expenses were incurred and paid; provided, however, that Parent notwithstanding such reimbursement, the terminating party may seek such additional remedies for damages against the non-terminating party with respect to such willful breach as are available at law or in equity. As used herein, a "Trigger Event" shall pay 100occur if any Person (A) acquires securities representing 10% or more of the voting power of the Company (provided that if any Person beneficially owns 10% or more of the voting power of the Company on the date hereof, a Trigger Event shall occur if such Person acquires additional securities representing 1% or more of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders voting power of the Company's Common Stock ), or (B) commences a tender or exchange offer following the successful consummation of which the offeror and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any its affiliates would beneficially own securities representing 25% or more of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval voting power of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event a Trigger Event shall Parent not be deemed to include the acquisition by any Person of securities representing 10% or more (or 10% owner acquiring 1% or more) of the Company if such Person has acquired such securities not with the purpose nor with the effect of changing or influencing the control of the Company, nor in connection with or as the case may bea participant in any transaction having such purpose or effect, be required to pay including without limitation not in connection with such fees or expenses Person (i) making any public announcement with respect to the othervoting of such shares at any meeting to consider any merger, ifconsolidation, immediately prior sale of substantial assets or other business combination or extraordinary transaction involving the Company, (ii) making, or in any way participating in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any voting securities of the Company (including, without limitation, any such solicitation subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence any Person with respect to the termination voting of this Agreementany voting securities of the Company, (iii) forming, joining or in any way participating in any "group" within the party meaning of Section 13(d)(3) of the Exchange Act with respect to receive any voting securities of the fees Company or expenses was (iv) otherwise acting, alone or in material breach concert with others, to seek control of its obligations under this Agreementthe Company or to seek to control or influence the management or policies of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Arrow Electronics Inc), Merger Agreement (Arrow Electronics Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein10.3, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated hereby other Contemplated Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, except that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), the expenses incurred in connection with the filing, printing and filing mailing of the Proxy Statement/Prospectus , and all filing and other fees paid to the SEC, in each case in connection with the Merger (including any preliminary materials relating thereto) other than attorneys' fees, accountants' fees and related expenses), shall be shared equally by Acquiror and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The If this Agreement is terminated by Acquiror pursuant to Section 10.1(b), then the Company shall pay Parent a fee to Acquiror, within ten (10) Business Days after such termination, the amount of $2 2.5 million upon the earliest by wire transfer of immediately available funds to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g)such account as Acquiror shall designate.
(c) The Company shall pay Parent a fee of $500,000 upon the termination of If this Agreement is terminated by Parent or the Company pursuant to Section 10.1(c) as a result of the failure or Section 10.1(j), then Acquiror shall pay to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or within ten (10) Business Days after such termination, the amount of $2.5 million by Parent wire transfer of immediately available funds to such account as the Company shall designate.
(d) If this Agreement is terminated by Acquiror pursuant to Section 10.1(b10.1(g) based on a failure of the condition in or Section 7.5, 10.1(i) or by the Company pursuant to Section 10.1(f10.1(h), then the Company shall pay to Acquiror, within two (2) based on Business Days after such termination, the failure amount of $9.0 million (the condition set forth in Section 8.6"Termination Fee") by wire transfer of immediately available funds to such account as Acquiror shall designate.
(e) If, if in any such event within 24 months from after the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, a bona fide Acquisition Proposal shall have been made known to senior management of the party Company or has been made directly to receive its stockholders generally or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to the fees Company and (A) thereafter this Agreement is terminated by Acquiror pursuant to Section 10.1(b) as a result of a material breach; and (B) within six (6) months after such termination the Company shall enter into a definitive written agreement with any Person (other than Acquiror and its Affiliates) with respect to such Acquisition Proposal, the Company shall pay to Acquiror, within ten (10) Business Days after the execution of such definitive agreement, the Termination Fee (less the amount of funds, if any, previously paid by the Company to Acquiror pursuant to Section 10.3(b)) by wire transfer of immediately available funds to such account as Acquiror shall designate; provided, however, that for purposes of this paragraph, Acquisition Proposal has the meaning ascribed thereto in Section 12.1(o), except that references in that Section to "15%" shall be replaced by "50%."
(f) All payments made pursuant to this Section 10.3 shall constitute liquidated damages and except as provided in Section 10.2(ii) in the case of fraud or expenses was in willful and material breach of its obligations under this Agreement, the receipt thereof shall be the sole and exclusive remedy of the receiving party against the party making such payment, its Affiliates and their respective directors, officers and stockholders for any claims arising out of or relating in any way to this Agreement or the transactions contemplated herein. Further, neither the Company nor Acquiror shall be required to pay the Termination Fee on more than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (First Busey Corp /Nv/), Merger Agreement (First Community Financial Partners, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or not the Merger is consummated, except as otherwise specifically provided hereinherein (including the last sentence of Section 8.05), all fees costs 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
If (i) an Acquisition Proposal, or any intention (whether or not conditional) on the termination part of this Agreement by Parent pursuant any Person with respect to Section 10.1(d);
any potential or future Acquisition Proposal, shall have been publicly announced, disclosed or otherwise communicated to the Board of Directors of the Company, and not withdrawn, (ii) the termination of thereafter this Agreement is terminated by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by either Parent or the Company pursuant to Section 10.1(c8.02(a) as or Section 8.02(b), then the Company shall pay Parent the Termination Expenses. If in addition to the foregoing, within 12 months after such termination, the Company or any Company Subsidiary enters into a result definitive agreement with respect to, or consummates, any Acquisition Proposal (with references in the definition thereof to “20%” deemed to be references to “50.1%”), then the Company shall pay Parent the Termination Fee minus the amount of any Termination Expenses paid. Payment under this Section 8.06(b) shall be made in immediately available funds by wire-transfer to an account designated by Parent, (i) with respect to Termination Expenses, within two Business Days after such termination, and (ii) with respect to the Termination Fee, on or prior to the earlier of the failure date on which the agreement with respect to receive the requisite approval of Acquisition Proposal is executed and the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(bdate on which the Acquisition Proposal is consummated.
(c) based on a failure of the condition in Section 7.5, or If this Agreement is terminated by the Company pursuant to Section 10.1(f) based 8.03(b), then the Company shall pay Parent the Termination Fee in immediately available funds by wire-transfer to an account designated by Parent, on or prior to the failure earlier of the condition set forth in Section 8.6, if in any such event within 24 months from date on which the agreement with respect to the Acquisition Proposal is executed and the date of this Agreement on which the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock Acquisition Proposal is acquired by a third party in a tender offerconsummated.
(d) Parent shall pay the Company a fee of $2 million upon termination of If this Agreement is terminated by the Company Parent pursuant to Section 10.1(e) 8.04 (solely for a material breach of Section 6.02), then the Company shall pay Parent the Termination Fee in immediately available funds by wire-transfer to an account designated by Parent, within two Business Days after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4such termination.
(e) The fees payable If (i) an Acquisition Proposal, or any intention (whether or not conditional) on the part of any Person with respect to any potential or future Acquisition Proposal, shall have been announced, disclosed or otherwise communicated to the Board of Directors of the Company, and not withdrawn, (ii) the breach by the Company of any covenant that is the basis for termination under 8.04 was willful on the part of the Company, and (iii) this Agreement is terminated by Parent pursuant to Sections 11.1(bSection 8.04 for willful breach by the Company of any covenant (other than as a result of a breach of Section 6.02), then the Company shall pay Parent the Termination Expenses. If in addition to the foregoing, within 12 months after such termination, the Company or any Company Subsidiary enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal (c) or 11.1(dwith references in the definition thereof to “20%” deemed to be references to “50.1%”), then the Company shall pay Parent the Termination Fee minus the amount of any Termination Expenses paid. Payment under this Section 8.06(e) shall be paid within one business day after the first made in immediately available funds by wire-transfer to occur of the events described in Sections 11.1(b)an account designated by Parent, (ci) or 11.1(d)with respect to Termination Expenses, as the case may be, within two Business Days after such termination and the expenses payable pursuant to Section 11.1(a(ii) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses with respect to the otherTermination Fee, if, immediately on or prior to the termination earlier of the date on which the agreement with respect to the Acquisition Proposal is executed and the date on which the Acquisition Proposal is consummated.
(f) For purposes of this Agreement, (i) “Termination Fee” means an amount equal to $14,350,000, and (ii) “Termination Expenses” means an amount, not to exceed $3,000,000, equal to the party documented, out-of-pocket expenses of Parent and Merger Sub, including fees and expenses of financial advisors, outside legal counsel, accountants, experts and consultants, incurred in connection with or related to receive the fees or expenses was in material breach authorization, preparation, negotiation, execution and performance of its obligations under this AgreementAgreement and the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Fremont Partners Lp), Merger Agreement (Juno Lighting Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees and expenses incurred in connection with this Agreement Agreement, the Mergers and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is Mergers are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) the termination of (I)(x) this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g).
(c9.1(b)(i) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b9.1(c)(i), and after the date hereof and (in the case of termination pursuant to Section 9.1(c)(i)) based on prior to the breach giving rise to such right of termination, a failure Company Acquisition Proposal (with, for all purposes of this Section 9.3(b), all percentages included in the condition in Section 7.5definition of “Company Acquisition Proposal” increased to 50%) has been announced, disclosed, or otherwise communicated or made known (whether or not publicly) to the Company Board or made known publicly to the Company’s stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make such a Company Acquisition Proposal, or (y) this Agreement is terminated by Company or Parent pursuant to Section 9.1(b)(iii), and prior to the Company Shareholder Meeting, a Company Acquisition Proposal has been publicly announced, disclosed, or otherwise communicated or made known to the Company Board or to the Company’s stockholders or any Person shall have publicly announced, disclosed or otherwise communicated or made known an intention (whether or not conditional) to make such a Company Acquisition Proposal, and in each such case in this clause (y), such Company Acquisition Proposal or intention has not been irrevocably withdrawn publicly at least five (5) Business Days prior to the Company Shareholder Meeting, and (II) within twelve (12) months after the date of such termination referred to in this Section 9.3(b), a transaction in respect of a Company Acquisition Proposal is consummated or the Company enters into a definitive agreement in respect of a Company Acquisition Proposal that is later consummated;
(ii) this Agreement is terminated by Parent pursuant to Sections 9.1(c)(ii); or
(iii) this Agreement is terminated by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.69.1(d)(ii); then, if in any such event within 24 months from the date of this Agreement event, the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay to Parent the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payableTermination Fee; provided, however, it being understood that in no event shall Parent or the Company, as the case may be, Company be required to pay such fees or expenses the Company Termination Fee on more than one occasion. Subject to Section 9.3(d), payment of the Company Termination Fee shall be made by wire transfer of same day funds to the otheraccount or accounts designated by Parent (i) at the time of consummation of any transaction contemplated by a Company Acquisition Proposal, ifin the case of a Company Termination Fee payable pursuant to Section 9.3(b)(i), immediately prior (ii) as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), in the case of a Company Termination Fee payable pursuant to Section 9.3(b)(ii), and (iii) at the time of termination, in the case of a Company Termination Fee payable pursuant to Section 9.3(b)(iii) and as a condition to the effectiveness of such termination, as set forth in Section 9.1(d)(ii). Notwithstanding anything in this Agreement to the contrary, except in the case of fraud or willful and material breach as expressly set forth in Section 9.2 and except as set forth in the provisos at the end of this sentence, in the event that the Company Termination Fee becomes payable, then payment to Parent of the Company Termination Fee and any Enforcement Expenses shall be Parent’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against the Company, the Company Subsidiaries and each of their respective former, current and future directors, trustees, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or future director or trustee, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the party failure of the Mergers to receive be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise, and upon payment of such Company Termination Fee no Company Party shall have any further liability or obligation relating to or arising out of this Agreement or the fees or expenses was transactions contemplated hereby and thereby.
(c) Each of the Company and Parent acknowledges that the agreements contained in material breach this Section 9.3 are an integral part of its obligations under the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement. If the Company fails promptly to pay any amounts due pursuant to Section 9.3(b), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amounts set forth in Section 9.3(b) or this Section 9.3(c), the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in Sections 9.3(b), from the date of termination of this Agreement at a rate per annum equal to the prime rate as published in the Wall Street Journal in effect on the date such payment was required to be made (collectively, the “Enforcement Expenses”).
Appears in 2 contracts
Samples: Merger Agreement (Kimco Realty Corp), Merger Agreement (RPT Realty)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or as otherwise provided hereinnot the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party Party incurring such costs or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (except as to which each party shall bear its own expensesprovided in Section 9.1(b), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto9.1(c), 9.1(d) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"9.1(f); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
If this Agreement is terminated by (i) the termination of this Agreement by Parent Partnership pursuant to Section 10.1(d);
8.1(c)(ii) or (ii) the termination of this Agreement by Parent NSH pursuant to Section 10.1(a8.1(d); or
(iii) the termination of this Agreement by the Company or Parent pursuant , then, subject to Section 10.1(g9.1(g), NSH shall pay to the Partnership the NSH Termination Fee.
(c) The Company shall pay Parent a fee of $500,000 upon In the termination event that (i) an Acquisition Proposal with respect to NSH has been publicly proposed by any Person (meaning, for the purpose of this Agreement by Parent Section 9.1(c), a Person other than the Partnership, the General Partner, NuStar GP, Riverwalk Holdings and Merger Sub) or such an Acquisition Proposal has otherwise become publicly known to the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if NSH Unitholders generally and in any event such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock proposal is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately not subsequently irrevocably withdrawn prior to the termination of this Agreement, (ii) thereafter this Agreement is terminated by either NSH or the party Partnership pursuant to receive Section 8.1(b)(i) or Section 8.1(b)(iii) and (iii) within 12 months after the fees termination of this Agreement, NSH or expenses was in material breach any of its obligations Subsidiaries enters into any definitive agreement with such Person or any of its Affiliates providing for an Acquisition Proposal, or NSH consummates an Acquisition Proposal with such Person or any of its Affiliates, then, subject to Section 9.1(g), NSH shall pay to the Partnership, if and when consummation of such Acquisition Proposal occurs, the NSH Termination Fee less all Expenses of the Partnership previously paid to the Partnership; provided that for purposes of this Section 9.1(c), “50%” shall be substituted for “20%” in the definition of Acquisition Proposal.
(d) If this Agreement is terminated by NSH pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v), then the Partnership shall pay to NSH the Expenses of NSH. If this Agreement is terminated by the Partnership pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v) then NSH shall pay to the Partnership the Expenses of the Partnership.
(e) Except as otherwise provided herein, any payment of the NSH Termination Fee or Expenses pursuant to this Section 9.1 shall be made by wire transfer of immediately available funds to an account designated by the Partnership or an account designated by NSH, as applicable, within one Business Day after such payment becomes payable; provided, however, that any payment of the NSH Termination Fee by NSH as a result of termination under Section 8.1(c) or Section 8.1(d) shall be made prior to or concurrently with termination of this Agreement; provided, further, that any payment of the NSH Termination Fee pursuant to Section 9.1(c) shall be made contemporaneously with the consummation of the Acquisition Proposal as provided in clause (iii) of Section 9.1(c). The Parties acknowledge that the agreements contained in this Section 9.1 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, none of the Parties would enter into this Agreement.
(i) If the Merger is consummated, the Partnership shall pay, or cause to be paid, any and all property or transfer taxes imposed on any Party in connection with the Merger, (ii) expenses incurred in connection with filing, printing and distribution of the Proxy Statement and the Registration Statement shall be shared equally by the Partnership and NSH and (iii) any filing fees payable pursuant to regulatory Laws and other filing fees incurred in connection with this Agreement shall be paid by the Party incurring the fees. As used in this agreement, “Expenses” includes all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a Party hereto and its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the preparation, printing, filing and distribution of the Proxy Statement and the Registration Statement and the solicitation of any unitholder approvals and all other matters related to the transactions contemplated hereby; provided that the amount of Expenses payable by one Party to another under this Section 9.1 shall not exceed $6.0 million.
Appears in 2 contracts
Samples: Merger Agreement (NuStar Energy L.P.), Agreement and Plan of Merger
Fees and Expenses. (a) Except If this Agreement is terminated:
(i) pursuant to Section 6.1(e); or
(ii) pursuant to Section 6(b)(iii) and (I) at any time after the date of this Agreement and before the Company Stockholders Meeting, a Company Acquisition Proposal shall have been publicly announced or otherwise communicated to the stockholders of the Company and such proposal shall not have been publicly and unconditionally withdrawn at the time of the Company Stockholders Meeting and (II) within twelve (12) months after such termination the Company or any Subsidiary enters into any definitive agreement with respect to any Company Acquisition Proposal and consummates such Company Acquisition Proposal at any time; Parent and Acquisition would suffer direct and substantial damages, which damages cannot be determined with reasonable certainty. To compensate Parent and Acquisition for such damages, the Company shall pay to Parent the amount of Fifty-Seven Million Dollars ($57,000,000) as set forth liquidated damages (i) within one (1) business day of the termination of this Agreement pursuant to Section 6.1(e), or (ii) on or before the closing of any Company Acquisition Proposal described in subsection Section 6.3(a)(ii), as applicable. It is specifically agreed that the amount to be paid pursuant to this Section 6.3(a) represents liquidated damages and not a penalty.
(b) Upon the termination of this Agreement pursuant to Section 11.1 6.1(d) in addition to any other remedies that Parent, Acquisition or their affiliates may have as otherwise provided hereina result of such termination (including pursuant to Section 6.3(a)), all the Company shall pay to Parent the amount of Five Million Dollars ($5,000,000) as reimbursement for the costs, fees and expenses incurred by any of them or on their behalf in connection with this Agreement, the Merger and the consummation of all transactions contemplated by this Agreement (including fees payable to investment bankers, counsel to any of the foregoing and accountants); provided that no breach by Parent or Acquisition shall have occurred that (either then or upon the passage of time as provided in Section 6(c)(ii)) would permit the Company to terminate this Agreement pursuant to Section 6.1(c).
(c) Upon the termination of this Agreement pursuant to Section 6.1(c), in addition to any other remedies that the Company or its affiliates may have as a result of such termination, Parent shall pay to the Company the amount of Five Million Dollars ($5,000,000) as reimbursement for the costs, fees and expenses incurred by any of them or on their behalf in connection with this Agreement, the Merger and the consummation of all transactions contemplated by this Agreement (including fees payable to investment bankers, counsel to any of the foregoing and accountants) provided no breach by the Company shall have occurred that (either then or upon the passage of time as provided in Section 6(d)(ii)) would permit Parent to terminate this Agreement pursuant to Section 6.1(d).
(d) Except as specifically provided in this Section 6.3, each party shall bear its own expenses 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockhereby.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Edwards J D & Co), Merger Agreement (Edwards J D & Co)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or not the Merger is consummated, except as otherwise specifically provided herein, all fees costs 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 within five days following any termination of this Agreement (other than a termination by Parent pursuant to Section 7.01(e) or (f) or a termination by the Company pursuant to Section 7.01(g)), Parent shall pay 100% reimburse the Company for the reasonable costs and expenses of all fees preparing and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection filing the Proxy Statement with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockSEC.
(b) The Company shall pay to Parent a fee of thirty-three million dollars ($2 million upon 33,000,000) (the earliest to occur of any of the following events“Fee”), if this Agreement is terminated as follows:
(i) the termination of if (A) either party shall terminate this Agreement by Parent pursuant to Section 10.1(d7.01(c) without the Special Meeting having been convened as a result of the Company’s willful and material violation of Section 5.04 and (B) an Acquisition Proposal shall have been made public and not withdrawn prior to the date specified in Section 7.01(c), then, if any Alternative Transaction is consummated, or an acquisition agreement or other similar agreement with respect to any Alternative Transaction (a “Company Acquisition Agreement”) is entered into, within 12 months after the date of such termination, the Company shall pay the Fee on the date of such consummation or the execution of such Company Acquisition Agreement, whichever is earlier;
(ii) the termination of if (A) this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement is terminated by Parent or the Company pursuant to Section 10.1(c7.01(d) as a result and (B) an Acquisition Proposal shall have been made public and not withdrawn prior to the taking of the failure to receive vote at the requisite approval of the Company's outstanding Common Stock or Preferred StockSpecial Meeting, then, if any Alternative Transaction is consummated, or a Company Acquisition Agreement is entered into, within 12 months after the date of such termination which Alternative Transaction is later consummated, the Company shall pay the Fee on the date of such consummation;
(iii) if this Agreement is terminated by Parent pursuant to Section 10.1(b7.01(f), then the Company shall pay the Fee on the Business Day following such termination; or
(iv) based on a failure of the condition in Section 7.5, or if this Agreement is terminated by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.67.01(g), if in any such event within 24 months from the date of this Agreement then the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately Fee prior to or simultaneously with the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementtermination.
Appears in 2 contracts
Samples: Merger Agreement (3m Co), Merger Agreement (Cuno Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, all fees and expenses incurred in connection with this Agreement and the Photomedex Technology Merger Agreement, the Mergers and the other transactions contemplated hereby and thereby shall be paid by the party incurring such fees or expenses, whether or not the Merger Mergers are consummated, except that the expenses incurred in connection with the filing, printing and mailing of the Proxy Statement of PHMD (including applicable SEC filing fees) and the solicitation of the PHMD Stockholder Approval shall be paid by PHMD and the expenses incurred in connection with the filing, printing and mailing of the Proxy Statement of DSKX (including applicable SEC filing fees) and the solicitation of the DSKX Stockholder Approval shall be paid by DSKX.
(b) In the event that:
(i) this Agreement is consummatedterminated by PHMD or DSKX pursuant to Section 8.1(b)(iii) and, prior to the PHMD Stockholders Meeting, there has been a PHMD Triggering Event;
(ii) this Agreement is terminated by DSKX pursuant to Section 8.1(c)(ii);
(iii) this Agreement is terminated by PHMD pursuant to Section 8.1(d)(iv); or
(A) an Acquisition Proposal involving either (x) PHMD and all of its direct and indirect consolidated Subsidiaries (including the Radiancy Group and Photomedex Technology), or (y) all of the members of the Radiancy Group and Photomedex Technology shall have been made directly to PHMD's shareholders or otherwise publicly disclosed prior to the taking of the vote to receive the PHMD Stockholder Approval at the PHMD Stockholders Meeting or any adjournment or postponement thereof, (B) this Agreement is thereafter terminated by either DSKX or PHMD pursuant to Section 8.1(b)(iii) and (C) within nine (9) months of the date of such termination of this Agreement, PHMD or any of its Subsidiaries enters into any definitive agreement with respect to, or consummates, any Acquisition Proposal with such party or its Affiliates, then, in any such case, PHMD shall pay DSKX a termination fee of Three Million Dollars ($3,000,000.00) in cash (the "PHMD Termination Fee"), it being understood that in no event shall PHMD be required to pay the PHMD Termination Fee on more than one occasion. Payment of the PHMD Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by DSKX (A) as promptly as practicable, but in any event no later than two (2) Business Days, after termination of this Agreement by DSKX in the case of a PHMD Termination Fee payable pursuant to Sections 8.3(b)(i) or (ii), (B) prior to or simultaneously with such termination of this Agreement by PHMD in the case of a PHMD Termination Fee payable pursuant to Sections 8.3(b)(i) or (iii), or (C) prior to or simultaneously with the entering into or consummation of the applicable Acquisition Proposal of a type referred to in Section 8.3(b)(iv) above in the case of a PHMD Termination Fee payable pursuant to Sections 8.3(b)(iv); provided, however, that Parent with respect to any payment of the PHMD Termination Fee pursuant to Section 8.3(b)(iv) above, the amount, if any, of any payment made by PHMD to DSKX pursuant to Section 8.3(c) below shall pay 100% be deducted from the amount of the PHMD Termination Fee payable to DSKX in such instance. Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated and the PHMD Termination Fee is payable to DSKX pursuant to this Section 8.3(b), then, in such instances, DSKX’s right to receive the PHMD Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by DSKX and its Affiliates in connection with this Agreement and the transactions contemplated hereby and thereby and shall be the sole and exclusive remedy of DSKX and its Affiliates against PHMD and its Subsidiaries.
(c) If this Agreement is terminated by PHMD or DSKX pursuant to Section 8.1(b)(iii), and prior to such termination there shall not have been a PHMD Triggering Event, then PHMD shall as promptly as practicable, but in any event no later than two (2) Business Days, after the termination of this Agreement (in the case of a termination by DSKX) or prior to or simultaneously with the termination of this Agreement (in the case of a termination by PHMD), reimburse DSKX for all of its fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), expenses actually incurred in connection with the printing and filing transactions contemplated by this Agreement, up to a maximum reimbursement of the Proxy Statement/Prospectus Seven Hundred Fifty Thousand Dollars (including any preliminary materials relating thereto$750,000.00) and the S-4 Registration Statement in cash (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy ExpensesPHMD Expense Reimbursement"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(bd) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) this Agreement is terminated by PHMD or DSKX pursuant to Section 8.1(b)(iv) and, prior to the DSKX Stockholders Meeting, there has been a DSKX Triggering Event;
(ii) this Agreement is terminated by DSKX pursuant to Section 8.1(d)(ii); or
(A) a DSKX Acquisition Proposal shall have been made directly to DSKX's shareholders or otherwise publicly disclosed prior to the taking of the vote to receive the DSKX Stockholder Approval at the DSKX Stockholders Meeting or any adjournment or postponement thereof, (B) this Agreement is thereafter terminated by either DSKX or PHMD pursuant to Section 8.1(b)(iv) and (C) within nine (9) months of the date of such termination of this Agreement, DSKX or any of its Subsidiaries enters into any definitive agreement with respect to, or consummates, any DSKX Acquisition Proposal with such party or its Affiliates, then, in any such case, DSKX shall pay PHMD a termination fee of Three Million Dollars ($3,000,000.00) in cash (the "DSKX Termination Fee"), it being understood that in no event shall DSKX be required to pay the DSKX Termination Fee on more than one occasion. Payment of the DSKX Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by PHMD (A) as promptly as practicable, but in any event no later than two (2) Business Days, after termination of this Agreement by Parent PHMD in the case of a DSKX Termination Fee payable pursuant to Section 10.1(d);
Sections 8.3(d)(i) or (ii), (B) the prior to or simultaneously with such termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) DSKX in the termination case of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees DSKX Termination Fee payable pursuant to Sections 11.1(b8.3(d)(i), or (cC) prior to or 11.1(d) shall be paid within one business day after simultaneously with the first to occur entering into or consummation of the events described applicable DSKX Acquisition Proposal in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses of a DSKX Termination Fee payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payableSections 8.3(d)(iii); provided, however, that with respect to any payment of the DSKX Termination Fee pursuant to Section 8.3(d)(iii) above, the amount, if any, of any payment made by PHMD to DSKX pursuant to Section 8.3(e) below shall be deducted from the amount of the DSKX Termination Fee payable to PHMD in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses instance. Notwithstanding anything to the othercontrary in this Agreement, ifif this Agreement is terminated and the DSKX Termination Fee is payable to PHMD pursuant to this Section 8.3(d), immediately then, in such instances, PHMD’s right to receive the DSKX Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by PHMD and its Affiliates in connection with this Agreement and the transactions contemplated hereby and thereby and shall be the sole and exclusive remedy of PHMD and its Affiliates against DSKX and its Subsidiaries.
(e) If this Agreement is terminated by PHMD or DSKX pursuant to Section 8.1(b)(iv), and prior to such termination there shall not have been a DSKX Triggering Event, then DSKX shall as promptly as practicable, but in any event no later than two (2) Business Days, after the termination of this Agreement (in the case of a termination by PHMD) or prior to or simultaneously with the termination of this Agreement (in the case of a termination by DSKX), reimburse PHMD for all of its fees and expenses actually incurred in connection with the transactions contemplated by this Agreement, up to a maximum reimbursement of Seven Hundred Fifty Thousand Dollars ($750,000.00) in cash (the "DSKX Expense Reimbursement").
(f) Each party to receive hereto acknowledges that the fees or expenses was agreements contained in material breach Section 8.3 are an integral part of its obligations under the transactions contemplated by this Agreement, and that, without these agreements, the other parties hereto would not enter into this Agreement; accordingly, if a party fails promptly to pay any amounts due pursuant to Section 8.3, and, in order to obtain such payment, the other party commences a suit that results in a judgment against such party for the amounts set forth in Section 8.3, such party shall pay other party its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amounts due pursuant to the applicable provisions of this Section 8.3 from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Ds Healthcare Group, Inc.)
Fees and Expenses. (a) Except as set forth provided in subsection paragraphs (b), (c), (d) of this Section 11.1 and (e) below, whether or as otherwise provided hereinnot the Merger is consummated, all fees costs 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 expenses (including broker’s or not the Merger is consummated; provided, however, that Parent shall pay 100% of all finder’s fees and expenses, other than attorneys and accountants fees (as to which each party shall bear the expenses of its own expensesrepresentatives), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of If any of the following events:
conditions set forth in paragraph (ic) the termination of this Agreement by Parent pursuant to Section 10.1(d);
or (iid) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by below are satisfied, then the Company shall, subject to and in accordance with such paragraphs, pay to Parent, by wire transfer of immediate available funds to an account specified by Parent, the Termination Fee (or portion thereof) and the amount of the Lender Consent Fees or the Parent pursuant to Section 10.1(g)Expense Reimbursement then due.
(c) The Company shall pay the Termination Fee, the Parent Expense Reimbursement and Lender Consent Fees as follows:
(i) if Parent terminates this Agreement pursuant to the provisions of Section 9.1(e) (but with respect to a fee termination pursuant to Section 9.1(e)(i) only if terminated prior to the Company Shareholders Meeting) or if the Company terminates this Agreement pursuant to the provisions of $500,000 upon Section 9.1(f), the Company shall pay Parent 50% of the Termination Fee, which payment shall be made concurrent with any such termination by the Company and on the same day as any such termination by Parent, and if within twelve (12) months following such termination the Company enters into a definitive agreement providing for, or consummates, an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received or publicly disclosed at the time of termination of this Agreement Agreement), then the Company shall, concurrent with consummating such transaction, pay to Parent the other 50% of the Termination Fee, the Parent Expense Reimbursement and Lender Consent Fees); or
(ii) if an Acquisition Proposal is received by the Company or publicly disclosed after the date hereof and prior to the termination hereof, and thereafter Parent or the Company terminates this Agreement pursuant to Section 10.1(c9.1(c), and within twelve (12) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stockmonths following such termination, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into a definitive agreement providing for, or consummates, an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received or publicly disclosed at the time of termination of this Agreement), the Company shall, concurrent with consummating such transaction, pay to Parent the Termination Fee, the Parent Expense Reimbursement and Lender Consent Fees; or
(iii) if an Acquisition Proposal is received by the Company or publicly disclosed after the date hereof and prior to the termination hereof, and thereafter Parent or the Company terminates this Agreement pursuant to Section 9.1(d), and within twelve (12) months following such termination, the Company enters into a definitive agreement providing for, or consummates, an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received or publicly disclosed at the time of termination of this Agreement), the Company shall, concurrent with consummating such transaction, pay to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerParent the Termination Fee, the Parent Expense Reimbursement and Lender Consent Fees.
(d) Parent The Company shall pay the Company a fee of $2 million upon termination of Parent Expense Reimbursement (or the portion thereof described below) and the Lender Consent Fees to Parent if Parent terminates this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure 9.1(g). The payment of the conditions set forth in Sections 8.1 through 8.4Parent Expense Reimbursement and the Lender Consent Fees shall be made on the same day as any such termination by Parent.
(e) The fees payable pursuant Parent shall pay to Sections 11.1(b)the Company, (c) or 11.1(d) shall be paid within one business day after by wire transfer of immediate available funds to an account specified by the first to occur of Company, the events described in Sections 11.1(b), (c) or 11.1(d), as Company Expense Reimbursement if the case may be, and the expenses payable Company terminates this Agreement pursuant to Section 11.1(a) 9.1(h). The payment of the Company Expense Reimbursement shall be paid within five business days after receipt of written documentation of made on the amount of expenses so payable; provided, however, that in no event shall Parent or same day as any such termination by the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Windrose Medical Properties Trust), Merger Agreement (Health Care Reit Inc /De/)
Fees and Expenses. (a) Except as set forth provided below in subsection (b) of this Section 11.1 or as otherwise provided herein6.12, all fees and expenses incurred in connection with the Offer, the Merger, this Agreement, the Stockholders Agreement and the transactions contemplated hereby by this Agreement and the Stockholders Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay, or cause to be paid, in same day funds to Parent the sum of (x) Parent's Expenses (as defined below) and (y) $1,750,000 (the "Termination Fee") upon demand if the Company terminates this Agreement pursuant to Section 6.1(i). In addition, the Company shall pay or cause to be paid, in same day funds to Parent a fee the sum of $2 million upon Parent's Expenses and the earliest to occur of any of the following events:
Termination Fee if (i) the termination of Purchaser terminates this Agreement by Parent pursuant to Section 10.1(d);
6.1(f) or 6.1(h) at any time after a proposal for an Acquisition Transaction has been made or (ii) the termination of Company or the Purchaser terminates this Agreement by Parent pursuant to Section 10.1(a6.1(b); or
, 6.1(c) or 6.1(e) at any time after a proposal for an Acquisition Transaction has been made and, within twelve (iii12) months after any termination referred to in the termination immediately preceding clauses (i) or (ii) of this Agreement by sentence, any Person that made a proposal for an Acquisition Transaction (or an affiliate thereof) completes a merger, consolidation or other business combination with the Company or Parent a subsidiary of the Company, or the purchase from the Company or from a subsidiary of the Company of 30% or more (in voting power) of the voting securities of the Company or of 30% or more (in market value) of the assets of the Company and its subsidiaries, on a consolidated basis; PROVIDED that the Company will not have any obligations under this Section 6.12(b) if the Purchaser terminates this Agreement pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c6.1(f)(ii) as a result of the failure of a condition to receive be satisfied unless the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on reason for the failure of such condition to be satisfied is reasonably related to the condition set forth making of such proposal for an Acquisition Transaction by the Person that ultimately consummated a transaction with the Company. "Expenses" shall mean reasonable and reasonably documented out-of-pocket fees and expenses incurred or paid by or on behalf of Parent in Section 8.6, if in connection with the Offer and Merger or the consummation of any such event within 24 months from of the date of transactions contemplated by this Agreement the Company enters into an agreement (including, without limitation, fees and expenses of counsel, commercial banks, investment banking firms, accountants, experts and consultants to be acquired by Parent and any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(bits affiliates), (c) or 11.1(d) PROVIDED that all such Expenses for this purpose shall be paid within one business day after not exceed $1,000,000 in the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementaggregate.
Appears in 2 contracts
Samples: Merger Agreement (Defiance Inc), Merger Agreement (General Chemical Group Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein7.3, and except with respect to costs and expenses of printing and mailing the Proxy Statement and all filing and other fees paid to the SEC in connection with the Merger, which shall be borne equally by the Company and Parent, all fees and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated hereby by this Agreement shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a termination fee in the amount of Seventy-Five Million Dollars ($2 million upon 75,000,000) (the earliest to occur of any of the following events“Company Termination Fee”) in immediately available funds if:
(i) the termination of (A) this Agreement is terminated by Parent pursuant to Section 10.1(d7.1(b), 7.1(d) or 7.1(g); and (B)(1) before such termination, an Acquisition Proposal with respect to the Company was commenced, received by the Company, publicly proposed or publicly disclosed; and (2) within 12 months after such termination, the Company enters into a definitive written agreement relating to an Acquisition Proposal or consummates a transaction contemplated by an Acquisition Proposal; provided, that for purposes of clause (2) above the references to “25%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) the termination of The Company has terminated this Agreement by Parent pursuant to Section 10.1(a7.1(f);
(iii) Parent has terminated this Agreement pursuant to Section 7.1(e); or
(iiiiv) after receiving an Acquisition Proposal, (A) the termination of this Agreement by Company Board does not take action to convene the Company or Parent pursuant to Section 10.1(g).
Shareholder Meeting and (cB) The Company shall pay Parent a fee within 12 months after such receipt of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stocksuch Acquisition Proposal, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into a definitive written agreement relating to an agreement Acquisition Proposal or consummates a transaction contemplated by an Acquisition Proposal. The Company Termination Fee must be paid no later than two Business Days following the event that triggers such payment described in Section 7.3(b)(i), (ii), (iii) or (iv). In the event that Parent shall receive full payment of the Company Termination Fee the receipt of such amount shall be deemed to be acquired liquidated damages and the sole and exclusive remedy of Parent, Merger Sub and their Affiliates against the Company and its Subsidiaries or any of their respective former, current or future equity holders, controlling persons, directors, officers, employees, agents, Representatives, general or limited partners, managers, management companies, members, shareholders, Affiliates or assignees and any and all former, current or future equity holders, controlling persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, shareholders, Affiliates or assignees of any of the foregoing, and any and all former, current or future heirs, executors, administrators, trustees, successors or assigns of any of the foregoing (collectively, “Company Related Parties”), and no Company Related Party shall have any other liability or obligation for any or all losses or damages suffered or incurred by Parent, Merger Sub or any third party other Parent Related Parties in connection with this Agreement (including any current AMVC shareholderand the termination hereof) or a majority any matter forming the basis for such termination, and none of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent, Merger Sub, any of their respective Affiliates or any other Parent Related Party shall pay be entitled to bring or maintain any other claim, action or proceeding against the Company, any of its Affiliates or any other Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent Related Party arising out of this Agreement, or pursuant to Section 10.1(f) based upon a failure any of the conditions set forth transactions contemplated hereby or any matters forming the basis for such termination. For the avoidance of doubt (A) under no circumstances will Parent or Merger Sub be entitled to amounts in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation excess of the amount of expenses so payable; providedthe Company Termination Fee and (B) while Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 8.10 and the payment of the Company Termination Fee under Section 7.3(b), however, under no circumstances shall Parent or Merger Sub be permitted or entitled to receive both a grant of specific performance that results in a Closing and any portion of the Company Termination Fee. The Parties acknowledge and agree that in no event shall Parent or the Company, as the case may be, Company be required to pay such fees the Company Termination Fee on more than one occasion, whether or expenses to not the other, if, immediately prior to the termination Company Termination Fee may be payable under more than one provision of this Agreement, Agreement at the party to receive same or at different times and the fees or expenses was in material breach occurrence of its obligations under this Agreementdifferent events.
Appears in 2 contracts
Samples: Merger Agreement (Kroger Co), Merger Agreement (Harris Teeter Supermarkets, Inc.)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Expenses shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, provided that Parent shall pay 100% of all the Parties will share equally any Form S-4 filing fees and expenses, other than attorneys and accountants fees (as may be required to which each party shall bear its own expenses), incurred in connection with consummate the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved transactions contemplated by the holders of the Company's Common Stock and Preferred Stockthis Agreement.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that this Agreement is terminated:
(i) the termination of this Agreement by Parent CCIT III or CMFT pursuant to Section 10.1(d9.1(b)(i) or Section 9.1(b)(iii) and, (A) prior to the Stockholders Meeting, an Acquisition Proposal with respect to CCIT III has been publicly announced, disclosed or otherwise communicated to CCIT III’s stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal (and such Acquisition Proposal or intention shall not have been publicly withdrawn on a bona fide basis without qualification at least three (3) Business Days prior to the Outside Date (with respect to a termination pursuant to Section 9.1(b)(i)) or the Stockholders Meeting (with respect to a termination pursuant to Section 9.1(b)(iii))) and (B) within twelve (12) months after the date of such termination, (I) a transaction in respect of an Acquisition Proposal with respect to CCIT III is consummated, (II) CCIT III enters into a definitive agreement in respect of an Acquisition Proposal and such Acquisition Proposal is actually consummated thereafter, or (III) CCIT III recommends to stockholders of CCIT III or fails to recommend against an Acquisition Proposal structured as a tender offer or exchange offer and such Acquisition Proposal is actually consummated thereafter (with, for all purposes of clauses (I), (II), and (III) of this Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” increased to 50%), then CCIT III shall pay to CMFT (1) the Termination Payment and (2) up to one hundred thirty thousand dollars ($130,000) as reimbursement for CMFT’s Expenses;
(ii) the termination of this Agreement by Parent CCIT III pursuant to Section 10.1(a9.1(c)(ii), then CCIT III shall pay to CMFT (A) an amount equal to the Termination Payment (provided that, if such termination occurs no later than ten (10) Business Days after the Go Shop Period End Time (or, in the event of timely delivery of a CCIT III Change Notice, the negotiation period contemplated by Section 7.3(f)(ii)), then no Termination Payment will be payable by CCIT III) and (B) up to one hundred thirty thousand dollars ($130,000) as reimbursement for CMFT’s Expenses;
(iii) by CMFT pursuant to Section 9.1(d)(ii), then CCIT III shall pay to CMFT (A) the Termination Payment (provided that, if such termination occurs no later than ten (10) Business Days after the Go Shop Period End Time (or, in the event of timely delivery of a CCIT III Change Notice, the negotiation period contemplated by Section 7.3(f)(ii)), then no Termination Payment will be payable by CCIT III) and (B) up to one hundred thirty thousand dollars ($130,000) as reimbursement for CMFT’s Expenses;
(iv) by CCIT III pursuant to Section 9.1(c)(i), then CMFT shall pay to CCIT III an amount up to seven hundred fifty thousand dollars ($750,000) as reimbursement for CCIT III’s Expenses; or
(iiiv) the termination of this Agreement by the Company or Parent CMFT pursuant to Section 10.1(g9.1(d)(i).
(c) The Company , then CCIT III shall pay Parent a fee of to CCIT III an amount up to one hundred thirty thousand dollars ($500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c130,000) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerreimbursement for CMFT’s Expenses.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cim Real Estate Finance Trust, Inc.), Merger Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein7.3, 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, except that the Company shall promptly reimburse the Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing for one-half of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved filing fee paid by the holders of Parent pursuant to the Company's Common Stock and Preferred StockHSR Act.
(b) The Company shall pay Parent a fee of $2 million 1,000,000 (the "Fee") upon the earliest first to occur of any of the following events:
(i) the termination of this Agreement by Parent or the Company pursuant to Section 10.1(d7.1(d) at a time when the Parent is also entitled to terminate this Agreement pursuant to Section 7.1(f);, as a result of the failure to receive the requisite vote for approval and adoption of this Agreement and Merger by the shareholders of the Company at the Shareholder Meeting; or
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a7.1(f); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c7.1(g) The Company if, within one year of any such termination, a person shall pay Parent acquire or beneficially own a fee majority of $500,000 upon the termination then outstanding shares of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of Common Stock or obtained representation on the Company's outstanding Common Stock Board of Directors or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on shall enter into a failure of the condition in Section 7.5, or by definitive agreement with the Company pursuant with respect to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) Acquisition Proposal or a majority of AMVC Common Stock is acquired by a third party in a tender offer.similar business combination; or
(div) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e7.1(h).
(c) after a Breach The Company shall reimburse Parent its reasonable out-of-pocket fees and expenses relating to the transactions contemplated by this Agreement in the event that (i) this Agreement is terminated by Parent of this Agreement, or the Company pursuant to Section 10.1(f7.1(d) based upon a failure as the result of the conditions set forth in Sections 8.1 through 8.4failure to receive the requisite vote for approval and adoption of this Agreement and the Merger by the shareholders of the Company at the Shareholder Meeting, and (ii) the Parent is not entitled to terminate this Agreement pursuant to Section 7.1(f).
(ed) The fees Fee and expenses payable pursuant to Sections 11.1(b), (c7.3(b) or 11.1(d7.3(c) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b)any of such events, (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses except to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was extent otherwise provided in material breach of its obligations under this AgreementSection 4.2(e).
Appears in 2 contracts
Samples: Merger Agreement (Oxford Automotive Inc), Merger Agreement (BMG North America LTD)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsIf:
(i) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(d8.1(e)(i) hereof, or if the Company terminates this 42 38 Agreement pursuant to Section 8.1(d)(ii) hereof under circumstances that would have permitted Parent to terminate this Agreement pursuant to Section 8.1(e)(i) hereof, and within 15 months thereafter, the Company enters into an agreement with respect to a Third Party Acquisition, or a Third Party Acquisition occurs, involving any party (or any affiliate or associate thereof) (x) with whom the Company (or its agents) had any discussions with respect to a Third Party Acquisition, (y) to whom the Company (or its agents) furnished information with respect to or with a view to a Third Party Acquisition or (z) who had submitted a proposal or expressed any interest publicly or to the Company in a Third Party Acquisition, in the case of each of clauses (x);, (y) and (z) prior to such termination; or
(ii) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(a)8.1(e)(i) hereof, or if the Company terminates this Agreement pursuant to Section 8.1(d)(ii) hereof under circumstances that would have permitted Parent to terminate this Agreement pursuant to Section 8.1(e)(i) hereof and within 15 months thereafter the Company enters into an agreement with respect to a Third Party Acquisition that contemplates a direct or indirect consideration (or implicit valuation) for Shares (including the value of any stub equity) in excess of the per Share Merger Consideration; or
(iii) (1) the termination of Company terminates this Agreement by pursuant to 8.1(d)(iii) or (2) the Company or Parent terminates this Agreement pursuant to Section 10.1(g).
8.1(d)(ii)(B) hereof and at such time Parent would have been permitted to terminate this Agreement under Section 8.1(e)(ii) or (ciii) The hereof or (3) Parent terminates this Agreement pursuant to Section 8.1(e)(ii) or (iii) hereof; then the Company shall pay to Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stockand Purchaser, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after following the first to occur execution and delivery of the events described in Sections 11.1(b), (c) such agreement or 11.1(d)such occurrence, as the case may be, and the expenses payable or simultaneously with any termination contemplated by Section 8.3(a)(iii) above, a fee, in cash, of $22 million (less any amounts previously paid pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; 8.3(b)), provided, however, that the Company in no event shall Parent or the Company, as the case may be, be required obligated to pay more than one such fees or expenses fee with respect to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementall such agreements and occurrences and such termination.
Appears in 2 contracts
Samples: Merger Agreement (George Acquisition Inc), Merger Agreement (Goulds Pumps Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Expenses shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, provided that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with upon the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (togetherClosing, the "Proxy Expenses"); provided further, however, that Surviving Company shall pay 100% all unpaid fees and expenses of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockParties.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that this Agreement is terminated:
(i) the termination of this Agreement by Parent SST IV or SmartStop pursuant to Section 10.1(d9.1(b)(i) or Section 9.1(b)(iii) and, (A) prior to the Stockholders Meeting, an Acquisition Proposal with respect to SST IV has been publicly announced, disclosed or otherwise communicated to SST IV’s stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal (and such Acquisition Proposal or intention shall not have been publicly withdrawn on a bona fide basis without qualification at least three (3) Business Days prior to the Outside Date (with respect to a termination pursuant to Section 9.1(b)(i)) or the Stockholders Meeting (with respect to a termination pursuant to Section 9.1(b)(iii)) and (B) within twelve (12) months after the date of such termination, (I) a transaction in respect of an Acquisition Proposal with respect to SST IV is consummated, (II) SST IV enters into a definitive agreement in respect of an Acquisition Proposal and such Acquisition Proposal is actually consummated thereafter, or (III) SST IV recommends to stockholders of SST IV or fails to recommend against an Acquisition Proposal structured as a tender offer or exchange offer and such Acquisition Proposal is actually consummated thereafter (with, for all purposes of clause (I), (II) and (III) of this Section 9.3(b)(i), all percentages included in the definition of “Acquisition Proposal” increased to fifty percent (50%)), then SST IV shall pay to SmartStop the Termination Payment;
(ii) the termination of this Agreement by Parent SST IV pursuant to Section 10.1(a9.1(c)(ii), then SST IV shall pay to SmartStop the Termination Payment;
(iii) by SmartStop pursuant to Section 9.1(d)(ii), then SST IV shall pay to SmartStop the Termination Payment;
(iv) by SST IV pursuant to Section 9.1(c)(i), then SmartStop shall pay to SST IV an amount equal to the Expense Reimbursement Payment; or
(iiiv) the termination of this Agreement by the Company or Parent SmartStop pursuant to Section 10.1(g9.1(d)(i).
(c) The Company , then SST IV shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into SmartStop an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses equal to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementExpense Reimbursement Payment.
Appears in 2 contracts
Samples: Merger Agreement (SmartStop Self Storage REIT, Inc.), Merger Agreement (Strategic Storage Trust IV, Inc.)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.03, all fees and expenses Transaction Costs incurred in connection with this Agreement and the transactions contemplated hereby Transactions shall be paid by the party incurring such expenses, whether or not any of the Merger Transactions is consummated. As used in this Agreement, "Transaction Costs" shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants to a party hereto and its Affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution or performance of this Agreement, the preparation, printing, filing or mailing of the Proxy Statement, the solicitation of stockholder approvals and all other matters related to the consummation of the Transactions; providedPROVIDED THAT whether or not the Transactions are consummated, however, that Parent shall pay 100% the aggregate amount of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), expenses incurred in connection with the printing filings and filing of the Proxy Statement/Prospectus approvals contemplated by Section 7.05(a) shall be borne fifty percent (including any preliminary materials relating thereto50%) by Parent and the S-4 Registration Statement fifty percent (including financial statements and exhibits50%) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company agrees that if this Agreement shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:be terminated by
(i) the termination of this Agreement by Parent or Merger Sub pursuant to Section 10.1(d9.01(d) (other than Section 9.01(d)(iii);),
(ii) the termination of this Agreement by Parent Company pursuant to Section 10.1(a9.01(g); , or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent Parent, Merger Sub or the Company pursuant to Section 10.1(cSections 9.01(b), 9.01(e) as a result or 9.01(h), if prior to such termination an Acquisition Proposal shall have been made to the Company, publicly announced or otherwise disclosed to the stockholders of the failure to receive the requisite approval Company and within one year of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement such termination, the Company or any of its Subsidiaries enters into an a definitive agreement to be acquired by with respect to, or consummates the transactions contemplated by, or the Board recommends that the Company stockholders approve, adopt or accept, any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent Acquisition Proposal, then the Company shall pay Parent the Company a fee Termination Fee in immediately available funds (x) within two business days after the termination date, in the case of $2 million upon termination clause (i), (y) prior to such termination, in the case of this Agreement by clause (ii), and (z) within two business days after the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure date of the conditions set forth event giving rise to the obligation to make such payment, in Sections 8.1 through 8.4.
the case of clause (e) The fees payable iii). In no event shall payment of more than one Termination Fee be made. In addition, in the event of a termination pursuant to Sections 11.1(b9.01(e) or 9.01(h), (c) or 11.1(dany amounts paid under Section 9.03(d) shall be paid within one business day after credited against the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementTermination Fee.
Appears in 2 contracts
Samples: Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Horowitz Seth)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, 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 Parent Merger Partner and Public Company shall pay 100% of share equally all fees and expenses, other than attorneys accountant’s and accountants fees (as to which each party shall bear its own expenses)attorneys’ fees, incurred in connection with respect to the printing printing, filing and filing mailing of the Proxy Statement/Prospectus (including any related preliminary materials relating theretomaterials) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockthereto.
(b) The Company Merger Partner shall pay Parent Public Company a termination fee of $2 million upon 500,000 (the earliest to occur of any “Merger Partner Termination Fee”) in the event of the following eventstermination of this Agreement:
(i) the termination of this Agreement by Parent Public Company pursuant to Section 10.1(d8.1(e);
(ii) the termination of this Agreement by Parent Merger Partner pursuant to Section 10.1(a8.1(j); or
(iii) the termination of this Agreement by the Public Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) Merger Partner, as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stockapplicable, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b8.1(b) or 8.1(g), so long as (cA) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, any person makes an Acquisition Proposal or amends an Acquisition Proposal made prior to the date of this Agreement with respect to Merger Partner; and (B) within twelve (12) months after such termination Merger Partner enters into a definitive agreement to consummate (which is consummated, whether or not within or after the 12 month period), or consummates, any Acquisition Proposal (regardless of whether made before or after the termination of this Agreement); provided that for purposes of this Section 8.3(b)(iii), the references to fifteen percent (15%) in the definition of Acquisition Proposal shall be deemed to be fifty percent (50%).
(c) Public Company shall pay Merger Partner a termination fee of $500,000 (the “Public Company Termination Fee”) in the event of the termination of this Agreement:
(i) by Merger Partner pursuant to Section 8.1(f);
(ii) by Public Company pursuant to Section 8.1(k); or
(iii) by Public Company or Merger Partner, as applicable, pursuant to Sections 8.1(b) or 8.1(h), so long as (A) prior to the termination of this Agreement, any person makes an Acquisition Proposal or amends an Acquisition Proposal made prior to the date of this Agreement with respect to Public Company; and (B) within twelve (12) months after such termination Public Company enters into a definitive agreement to consummate, or consummates, any Acquisition Proposal (regardless of whether made before or after the termination of this Agreement); provided that for purposes of this Section 8.3(c)(iii), the references to fifteen percent (15%) in the definition of Acquisition Proposal shall be deemed to be fifty percent (50%).
(d) Any fee due under Sections 8.3(b) or 8.3(c) shall be paid by wire transfer within two (2) Business Days of (i) the date of termination of this Agreement under clauses (i) and (ii) of Sections 8.3(b) and 8.3(c) and (ii) the date of the closing of a transaction contemplated pursuant to clause (iii) of Sections 8.3(b) and 8.3(c) to an account designated by the party entitled to such amount. If either party fails to promptly pay to the other any expense reimbursement or termination fee due pursuant to this Section 8.3, the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime rate of Bank of America, N.A. plus five percent (5%) per annum, compounded quarterly, from the date such expense reimbursement or fee was required to be paid.
(e) The Parties hereto acknowledge 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, the Parties hereto would not enter into this Agreement. Notwithstanding Section 8.2 or any other provision of this Agreement, payment of the termination fees described in, and under the circumstances provided for in, this Section 8.3 shall constitute the sole and exclusive remedy of Public Company or Merger Partner, as applicable in connection with any termination of this Agreement in the circumstances in which such fees became payable. In the event that Public Company or Merger Partner shall receive the fees payment of a termination fee under the circumstances provided for in this Section 8.3, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or expenses was in material breach damages suffered or incurred by Public Company and any of its obligations under Affiliates or Merger Partner and any of its Affiliates, as applicable, or any other person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Public Company, Merger Sub any of their respective Affiliates or Merger Partner or any of its Affiliates, as applicable, or any other person, shall be entitled to bring or maintain any other claim, action or proceeding against Public Company or Merger Partner, as applicable, or any of their respective Affiliates arising out of this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination.
(f) The Parties hereto acknowledge and agree that (i) in no event shall Merger Partner be required to pay Merger Partner Termination Fee on more than one occasion, nor shall Public Company be required to pay Public Company Termination Fee on more than one occasion and (ii) in each case whether or not such fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events. Payment of either the Merger Partner Termination Fee or Public Company Termination Fee shall be an exclusive remedy hereunder for the party that actually receives such fee, and if this Agreement is terminated pursuant to a provision that does not require payment of either the Merger Partner Termination Fee or Public Company Termination Fee, then the Parties may pursue any remedies available hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Amergent Hospitality Group, Inc), Merger Agreement (Chanticleer Holdings, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all All fees and expenses incurred in connection with the Merger, this Agreement Agreement, and the transactions contemplated hereby by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon Notwithstanding the earliest to occur of any of the following eventsforegoing, if:
(i) the termination of (A) Either Company or Purchaser terminates this Agreement by Parent pursuant to 8.1(c) (without the Company Shareholder Approval having been obtained), Purchaser terminates pursuant to Section 10.1(d8.1(d) (as a result of a Willful Breach by Company)(B) prior to termination, there has been publicly announced an Acquisition Proposal or any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) shall have communicated to Company or its shareholders an Acquisition Proposal (whether or not conditional);
, or an intention (iiwhether or not conditional) to make an Acquisition Proposal, and (C) within twelve months of such termination Company shall either (1) consummate an Acquisition Transaction or (2) enter into any definitive agreement relating to any Acquisition Transaction (but not including any confidentiality agreement required by Section 6.7(b) (an “Acquisition Agreement”)) with respect to an Acquisition Transaction or Acquisition Proposal, whether or not such Acquisition Transaction or Acquisition Proposal is subsequently consummated (but changing, in the termination case of this Agreement by Parent pursuant (1) and (2), the references to Section 10.1(athe “15%” and “85%” amounts in the definition of Acquisition Transaction and Acquisition Proposal to “50%”); or
(iiiii) the termination of (A) Either Company or Purchaser terminates this Agreement by the Company or Parent pursuant to Section 10.1(g8.1(g) and (B) within six months of such termination Company shall either (1) consummate an Acquisition Transaction or (2) enter into any Acquisition Agreement with respect to an Acquisition Transaction or Acquisition Proposal, whether or not such Acquisition Transaction or Acquisition Proposal is subsequently consummated (but changing, in the case of (1) and (2), the references to the “15%” and “85%” amounts in the definition of Acquisition Transaction and Acquisition Proposal to “50%”)
(iii) Purchaser terminates this Agreement pursuant to Section 8.1(e); then Company shall pay to Purchaser an amount equal to Five Million and 00/100 Dollars ($5,000,000.00) (the “Termination Fee”). If the Termination Fee shall be payable pursuant to subsection (b)(i) of this Section 8.3, the Termination Fee shall be paid in same-day funds at or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of an Acquisition Agreement with respect to such Acquisition Transaction or Acquisition Proposal. If the Termination Fee shall be payable pursuant to subsection (b)(ii) of this Section 8.3, the Termination Fee shall be paid in same-day funds immediately upon delivery of the written notice of termination required by Section 8.1.
(c) The parties acknowledge that the agreements contained in paragraph (b) of this Section 8.3 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, they would not enter into this Agreement; accordingly, if Company fails to pay promptly any fee payable by it pursuant to this Section 8.3, then Company shall pay Parent a fee of $500,000 upon to Purchaser, Purchaser’s costs and expenses (including attorneys’ fees, costs and expenses) in connection with collecting such fee, together with interest on the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result amount of the failure to receive fee at the requisite approval prime rate of the Company's outstanding Common Stock or Preferred StockCitibank, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months N.A. from the date of such payment was due under this Agreement until the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority date of AMVC Common Stock is acquired by a third party in a tender offerpayment.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cortland Bancorp Inc), Merger Agreement (Farmers National Banc Corp /Oh/)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all fees All costs 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 consummatedexpense; provided, however, that Parent shall pay 100% the costs and expenses of printing and mailing the Joint Proxy Statement, and all filing and other fees and expenses, other than attorneys and accountants fees (as paid to which each party shall bear its own expenses), incurred the Commission in connection with the printing Merger, shall be borne equally by Crompton and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockWitco.
(b) The Company Witco shall pay Parent to Crompton a fee of $2 30 million upon the earliest to occur of any of the following events:
if: (i) Witco terminates this Agreement pursuant to Section 9.1(i); (ii) Crompton terminates this Agreement pursuant to Section 9.1(f); or (iii) any Witco Competing Transaction proposed to Witco or publicly disclosed and, in each case, pending prior to the earlier of (x) the Witco Stockholders Meeting and (y) the occurrence of the earliest event or circumstance constituting the basis for the termination of this Agreement, and thereafter either Crompton or Witco terminates this Agreement by Parent pursuant to Section 10.1(d9.1(c);
, Section 9.1(e)(i), or Section 9.1(d) (iibut only in the case of termination by Crompton under such Section 9.1(d)) and, in the case of clause (iii) above, within 12 months of such termination Witco enters into a definitive agreement to consummate, or otherwise consummates, the transactions contemplated by any Witco Competing Transaction. Any fee due under this Section 10.3(b) shall be paid by wire transfer of same-day funds on the date of termination of this Agreement by Parent (except that in the case of termination pursuant to Section 10.1(a); or
clause (iii) above such payment shall be made on the termination date of this Agreement by the Company or Parent pursuant to Section 10.1(gexecution of such definitive agreement or, if earlier, consummation of such transactions).
(c) The Company Crompton shall pay Parent to Witco a fee of $500,000 upon the termination of 30 million if: (i) Crompton terminates this Agreement by Parent or the Company pursuant to Section 10.1(c9.1(h); (ii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent Witco terminates this Agreement pursuant to Section 10.1(b9.1(g); or (iii) based on a failure any Crompton Competing Transaction proposed to Crompton or publicly disclosed and, in each case, pending prior to the earlier of (x) the Crompton Stockholders Meeting and (y) the occurrence of the condition in Section 7.5, earliest event or by circumstance constituting the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to basis for the termination of this Agreement, and thereafter either Crompton or Witco terminates this Agreement pursuant to Section 9.1(c), Section 9.1(e)(ii), or Section 9.1(d) (but only in the party case of termination by Witco under such Section 9.1(d)) and, in the case of clause (iii) above, within 12 months of such termination Crompton enters into a definitive agreement to receive consummate, or otherwise consummates, the fees or expenses was in material breach of its obligations transactions contemplated by any Crompton Competing Transaction. Any fee due under this AgreementSection 10.3(c) shall be paid by wire transfer of same-day funds on the date of termination of this Agreement (except that in the case of termination pursuant to clause (iii) above such payment shall be made on the date of execution of such definitive agreement or, if earlier, consummation of such transactions).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Witco Corp), Agreement and Plan of Reorganization (Crompton & Knowles Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinin this Agreement, all fees and expenses incurred in connection with this Agreement Agreement, the Mergers and the other transactions contemplated hereby shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is Mergers are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following events:
event that (ii)(x) the termination of this Agreement is terminated by Parent pursuant to Section 10.1(d9.1(c)(i);
, and after the date hereof and prior to the breach giving rise to such right of termination, a Company Acquisition Proposal has been publicly announced, disclosed, or otherwise communicated or made known to the Company Board and has not been irrevocably withdrawn publicly, or (iiy) the termination of this Agreement is terminated by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g9.1(b)(iii), and prior to the Company Stockholder Meeting a Company Acquisition Proposal has been publicly announced, disclosed, or otherwise communicated or made known to the Company Board and has not been irrevocably withdrawn publicly at least five (5) Business Days prior to the Company Stockholder Meeting, and (ii) within twelve (12) months after the date of such termination referred to in this Section 9.3(b), a transaction in respect of a Company Acquisition Proposal is consummated or Company enters into a Company Alternative Acquisition Agreement that is later consummated (provided that for purposes of this clause (ii), all percentages included in the definition of “Company Acquisition Proposal” shall be increased to 50%), then Company shall pay to Parent the Company Termination Fee by wire transfer of same day funds to the account or accounts designated by Parent no later than consummation of such transaction in respect of a Company Acquisition Proposal.
(c) The Company shall pay Parent a fee of $500,000 upon In the termination of event that this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or is terminated by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.59.1(c)(ii), or by then Company shall pay to Parent the Company pursuant Termination Fee by wire transfer of same day funds to Section 10.1(fthe account or accounts designated by Parent within two (2) based on the failure Business Days of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offertermination.
(d) Parent shall pay In the Company a fee of $2 million upon termination of event that this Agreement is terminated by the Company pursuant to Section 10.1(e) after a Breach 9.1(d)(ii), then Company shall pay to Parent the Company Termination Fee by wire transfer of same day funds to the account or accounts designated by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4substantially concurrently with such termination.
(e) The fees payable pursuant Notwithstanding anything to Sections 11.1(b)the contrary set forth in this Agreement, (c) or 11.1(d) the Parties agree that under no circumstances shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, Company be required to pay such fees or expenses Parent the Company Termination Fee on more than one occasion. Notwithstanding anything in this Agreement to the othercontrary, ifexcept in the case of fraud or willful and material breach as set forth in Section 9.2 and except as set forth in the provisos at the end of this sentence, immediately prior in the event that the Company Termination Fee becomes payable, then payment to Parent of the Company Termination Fee and any Enforcement Expenses shall be Parent’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against Company, the Company Subsidiaries and each of their respective former, current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing (collectively, the “Company Parties”) in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the party failure of the Mergers to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise, and, upon payment of such Company Termination Fee, no Company Party shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith, or the transactions contemplated hereby and thereby.
(f) Each of Company and Parent acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other Party would not enter into this Agreement. If Company fails to pay the Company Termination Fee due pursuant to Section 9.3(b) or 9.3(c) or 9.3(d), and, in order to obtain such payment, Parent commences a suit that results in a final, non-appealable judgment against Company for the Company Termination Fee, Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest thereon from the date of termination of this Agreement at a rate per annum equal to the prime rate as published in the Wall Street Journal in effect on the date such payment was required to be made (collectively, the “Enforcement Expenses”).
(g) The “Company Termination Fee” shall be an amount equal to the lesser of (i) the Company Base Amount and (ii) the maximum amount, if any, that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code (the “REIT Requirements”) for such year determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants engaged by Parent (taking into account any known or anticipated income of Parent which is not Qualifying Income and any appropriate “cushion” as determined by such accountants). Notwithstanding the foregoing, in the event Parent receives Tax Guidance providing that Parent’s receipt of the Company Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements, the Company Termination Fee shall be an amount equal to the Company Base Amount and Company shall, upon receiving notice that Parent has received the Tax Guidance, pay to Parent the unpaid Company Base Amount within five (5) Business Days. In the event that Parent is not able to receive the fees full Company Base Amount due to the above limitations, Company shall place the unpaid amount in escrow by wire transfer within three (3) days of the date when the Company Termination Fee would otherwise be due but for the above limitations and shall not release any portion thereof to Parent unless and until Parent receives either one or expenses was a combination of the following once or more often: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid at that time to Parent without causing Parent to fail to meet the REIT Requirements (calculated as described above), in material breach which event Company shall pay to Parent the lesser of its obligations the unpaid Company Base Amount or the maximum amount stated in the letter, within five (5) Business Days after Company has been notified thereof, or (ii) the Tax Guidance, in which event Company shall pay to Parent the unpaid Company Base Amount within five (5) Business Days after Company has been notified thereof. The obligation of Company to pay any unpaid portion of the Company Termination Fee shall terminate on the December 31 following the date which is five (5) years from the date the Company Termination Fee first becomes payable under this AgreementSection 9.3(b), Section 9.3(c) or Section 9.3(d). Amounts remaining in escrow after the obligation of Company to pay the Company Termination Fee terminates shall be released to Company.
Appears in 2 contracts
Samples: Merger Agreement (Urstadt Biddle Properties Inc), Merger Agreement (Regency Centers Lp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or not the Merger is consummated, except as otherwise specifically provided herein, all fees costs 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon to Acquiror the earliest to occur of any of the following eventsTermination Fee if, and only if, this Agreement is terminated as follows:
(i) if (A) after the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by date hereof, the Company Board has effected an Adverse Recommendation Change or Parent pursuant to Section 10.1(g).
(c) The Company a Takeover Proposal shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based have become publicly known and not publicly withdrawn on a failure of the condition bona fide basis (x) in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may beof clause (B)(I) below, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, or (y) in the party case of clause (B)(II) below, at the time of the breach, (B) thereafter, this Agreement is terminated (I) by Acquiror or the Company pursuant to Section 8.01(c) in circumstances where the conditions set forth in paragraph (b) of Annex I and paragraph (c)(i) of Annex I (solely to the extent relating to the matters set forth in paragraph (b) of Annex I) have been satisfied and the Company has not breached its obligations pursuant to Section 6.04, but the Minimum Condition has not been satisfied, or (II) by Acquiror pursuant to Section 8.01(d) as it relates to paragraph (c)(iv) of Annex I, and (C) within one (1) year of such termination, the Company Board approves or recommends any Takeover Proposal (regardless of when made), the Company or any of its Subsidiaries enters into any acquisition agreement, merger agreement or other definitive agreement that provides for any Takeover Proposal, or any Takeover Proposal is consummated, then, in any such case, the Company shall pay to Acquiror (or a person designated by Acquiror in writing) the Termination Fee by wire transfer of same-day funds within two (2) Business Days of the earliest of the date any such Company Board approval or recommendation is made, any such acquisition agreement, merger agreement or other definitive agreement is entered into by the Company or any of its Subsidiaries or the date any such transaction is consummated. Solely for purposes of this Section 8.03(b)(i), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 6.02(h), except that all references to “20%” therein shall be deemed to be references to “50%”;
(ii) if this Agreement is terminated by Acquiror pursuant to Section 8.01(f)(i), then the Company shall pay to Acquiror the Termination Fee by wire transfer of same-day funds within one (1) Business Day following the date of such termination of this Agreement;
(iii) if (A) after the date hereof, a Takeover Proposal shall have become known to the Company and not withdrawn on a bona fide basis prior to the termination of this Agreement, (B) thereafter, this Agreement is terminated by Acquiror pursuant to or Section 8.01(f)(ii), and (C) within one (1) year of such termination, the Company Board approves or recommends any Takeover Proposal (regardless of when made), the Company or any of its Subsidiaries enters into any acquisition agreement, merger agreement or other definitive agreement that provides for any Takeover Proposal, or any Takeover Proposal is consummated, then, in any such case, the Company shall pay to Acquiror (or a person designated by Acquiror in writing) the Termination Fee by wire transfer of same-day funds within two (2) Business Days of the earliest of the date any such Company Board approval or recommendation is made, any such acquisition agreement, merger agreement or other definitive agreement is entered into by the Company or any of its Subsidiaries or the date any such transaction is consummated. Solely for purposes of this Section 8.03(b)(iii), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 6.02(h), except that all references to “20%” therein shall be deemed to be references to “50%”; or
(iv) if this Agreement is terminated by the Company pursuant to Section 8.01(h), then the Company shall pay to Acquiror the Termination Fee by wire transfer of same-day funds prior to or simultaneously with (and as a condition to the effectiveness of) such termination.
(c) The parties acknowledge that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty, and that, without these agreements, the parties would not have entered into this Agreement. For the avoidance of doubt, the Termination Fee shall be payable only once and not in duplication even though the Termination Fee may be payable under one or more provisions hereof. Subject to Section 8.02, in the event Acquiror shall receive the fees Termination Fee, the receipt thereof shall be deemed to be liquidated damages for any and all losses or expenses was in material breach damages suffered or incurred by Acquiror or any of its obligations under Affiliates in connection with this Agreement and the transactions contemplated hereby (and the termination thereof or any matter forming the basis for such termination), and neither Acquiror nor any of its Affiliates shall be entitled to bring or maintain any other Legal Proceeding against the Company or any of its Affiliates arising out of this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination. If the Company fails promptly to pay the Termination Fee when due and payable pursuant to this Section 8.03, and, in order to obtain such payment, Acquiror commences an action or other proceeding that results in an award against the Company for such Termination Fee, the Company shall pay Acquiror’s costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such action or proceeding, together with interest on the amount of the Termination Fee from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (News Corp), Merger Agreement (Move Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.03, all fees and expenses Transaction Costs incurred in connection with this Agreement and the transactions contemplated hereby Transactions shall be paid by the party incurring such expenses, whether or not any of the Merger Transactions is consummated; provided. As used in this Agreement, however, that Parent "Transaction Costs" shall pay 100% of include all reasonable out-of-pocket expenses (including all fees and expensesexpenses of counsel, other than attorneys accountants, investment bankers, financing sources, experts and accountants fees (as consultants to which each a party shall bear hereto and its own expenses), Affiliates) incurred by a party or on its behalf in connection with or related to the printing and authorization, preparation, negotiation, execution or performance of this Agreement, the preparation, printing, filing or mailing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% solicitation of stockholder approvals and all other matters related to the consummation of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockTransactions.
(b) The Company agrees that if this Agreement shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:be terminated by
(i) the termination of this Agreement by Parent or Merger Sub pursuant to Section 10.1(d9.01(d) (other than Section 9.01(d)(iii);),
(ii) the termination of this Agreement by Parent Company pursuant to Section 10.1(a9.01(g); , or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent Parent, Merger Sub or the Company pursuant to Section 10.1(cSections 9.01(b), 9.01(e) as a result or 9.01(h), if prior to such termination an Acquisition Proposal shall have been made to the Company, publicly announced or otherwise disclosed to the stockholders of the failure to receive the requisite approval Company and within one year of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement such termination, the Company or any of its Subsidiaries enters into an a definitive agreement to be acquired by with respect to, or consummates the transactions contemplated by, or the Board recommends that the Company stockholders approve, adopt or accept, any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent Acquisition Proposal, then the Company shall pay Parent the Company a fee Termination Fee in immediately available funds (x) within two business days after the termination date, in the case of $2 million upon termination clause (i), (y) prior to such termination, in the case of this Agreement by clause (ii), and (z) within two business days after the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure date of the conditions set forth event giving rise to the obligation to make such payment, in Sections 8.1 through 8.4.
the case of clause (e) The fees payable iii). In no event shall payment of more than one Termination Fee be made. In addition, in the event of a termination pursuant to Sections 11.1(b9.01(e) or 9.01(h), (c) or 11.1(dany amounts paid under Section 9.03(d) shall be paid within one business day after credited against the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementTermination Fee.
Appears in 2 contracts
Samples: Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Horowitz Seth)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinbelow, all fees and expenses incurred in connection with the Transactions contemplated by this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is Transactions contemplated by this Agreement are consummated; provided. Without limiting the foregoing, however, that Parent the Company shall pay 100% of all fees costs and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred expenses in connection with the printing and filing mailing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) Statement as well as all SEC filing fees related to the Proxy Statement and the S-4 Registration Statement (including financial statements Schedule 13E-3, and exhibits) Parent and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company Opco shall pay 100% of all costs and expenses in connection with any securities filings made by such parties (other than the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockSchedule 13E-3).
(b) The Company shall pay to Parent or its designee a fee in the amount of $2 million upon 13,000,000 (the earliest to occur “Company Termination Fee”) which shall be inclusive of any out-of-pocket fees and expenses reasonably incurred by Parent, Opco, Holdings and Merger Sub in connection with this Agreement and the Transactions (including fees and other amounts (including fees and other payments based on a percentage of the following events:
Company Termination Fee or the proposed aggregate Merger Consideration) payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants, financial printers, experts and consultants to Parent, Opco, Merger Sub and any affiliate thereof) (“Expenses”), in cash, by wire transfer of immediately available funds to an account designated by Parent or such designee, if: (i) the Company terminates this Agreement pursuant to Section 8.01(d)(ii) or Parent terminates this Agreement pursuant to Section 8.01(c)(iii); (ii) Parent terminates this Agreement pursuant to Section 8.01(c)(i) (so long as the breach or failure to perform giving rise to such right of termination was a willful and knowing breach or failure to perform) or Section 8.01(c)(ii); or (iii) the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(i), but only if (A) a Company Takeover Proposal shall have been publicly disclosed or disclosed to the Company prior to the Outside Date, and (B) within 6 months after such termination the Company (or any Company Subsidiary) enters into a definitive agreement with respect to a Superior Company Proposal with the person or group (or any affiliate of such person or any member of such group) that made the Company Takeover Proposal referred to in clause (A) above, or consummates a transaction that constitutes a Superior Company Proposal with such person or group (or any affiliate of such person or any member of such group). The Company shall pay to Parent or its designee in cash, by wire transfer of immediately available funds to an account designated by Parent or such designee: (i) an amount necessary to reimburse Parent, Opco, Holdings and Merger Sub for their Expenses, up to a maximum amount of $1,000,000, if the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii), and (ii) the Company Termination Fee less the amount of Expenses paid pursuant to clause (i) of this sentence if the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii), but with respect to this clause (ii) only if (A) a Company Takeover Proposal shall have been publicly disclosed prior to the Company Stockholders Meeting, and (B) within 12 months after such termination the Company (or any Company Subsidiary) enters into a definitive agreement with respect to, or consummates, a Company Takeover Proposal. Any amounts due under this Section 6.06(b) shall be paid on the date of termination of this Agreement by Parent (except that in the case of termination pursuant to (x) clause (iii) of the first sentence of this Section 10.1(d);
6.06(b) and (y) clause (ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stockimmediately preceding sentence, or by Parent pursuant to Section 10.1(b) based such payment shall be made on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an execution of such definitive agreement to be acquired by any third party (including any current AMVC shareholder) or a majority or, if earlier, consummation of AMVC Common Stock is acquired by a third party in a tender offersuch transactions).
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Specialty Laboratories Inc), Merger Agreement (Ameripath Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or as otherwise provided hereinnot the Mergers are consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees except as provided in this Article VIII and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockSection 5.14.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of If this Agreement is terminated by Parent pursuant to Section 10.1(d7.1(e);, then the Company shall pay to Parent a termination fee in the amount of $55 million (the “Company Termination Fee”).
(c) If this Agreement is terminated by the Company pursuant to Section 7.1(f), then Parent shall pay to the Company a termination fee in the amount of $60 million (the “Parent Termination Fee”).
(d) (i) if this Agreement is terminated by either party pursuant to Section 7.1(b)(iii), then the Company shall pay to Parent an amount equal to $5.0 million as a reasonable estimate of Parent’s expenses, and (ii) the termination of if this Agreement is terminated by Parent either party pursuant to Section 10.1(a7.1(b)(iv); or, then Parent shall pay to the Company an amount equal to $5.0 million as a reasonable estimate of the Company’s expenses.
(iiie) In the termination event that (i) (x) after the date hereof, an Acquisition Proposal with respect to the Company has been publicly proposed by any Person (other than Parent or Merger Sub, or any of their respective affiliates) or any Person publicly has announced its intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or an Acquisition Proposal with respect to the Company or such intention has otherwise become known to the Company’s stockholders generally and (y) thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 10.1(g).
7.1(b)(i) (c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of if but only if the condition set forth in Section 8.6, if in any such event within 24 months from Sections 6.2(a) would have been met as of the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholdertermination) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
Section 7.1(b)(iii), and (dii) Parent shall pay within 365 days after the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, the Company or pursuant any of its Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal with respect to Section 10.1(f) based the Company, or an Acquisition Proposal with respect to the Company is consummated, the Company shall pay Parent the Company Termination Fee upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b)this clause (ii) (less the amount of any payment, (c) or 11.1(d)if any, as previously made by the case may be, and the expenses payable Company pursuant to Section 11.1(a8.1(d)(i)).
(f) shall be paid In the event that (i) (x) after the date hereof, an Acquisition Proposal with respect to Parent has been publicly proposed by any Person (other than the Company or any of its affiliates) or any Person publicly has announced its intention (whether or not conditional) to make an Acquisition Proposal with respect to Parent or an Acquisition Proposal with respect to Parent or such intention has otherwise become known to Parent’s shareholders generally and (y) thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(i) (if but only if the condition set forth in Section 6.3(a) would have been met as of the date of termination) or Section 7.1(b)(iv), and (ii) within five business 365 days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, Parent or any of its Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal with respect to Parent, or an Acquisition Proposal with respect to Parent is consummated, Parent shall pay the Company the Parent Termination Fee upon the first to occur of the events described in this clause (ii) (less the amount of any payment, if any, previously made by Parent pursuant to Section 8.1(d)(ii)).
(g) Notwithstanding anything in this Agreement to the contrary, if the Company terminates the Agreement pursuant to Section 7.1(g), then, the Company shall pay to Parent the Company Termination Fee at or prior to the time of, and as a pre-condition to the effectiveness of, termination by wire transfer of immediately available funds to an account designated by Parent.
(h) Notwithstanding anything in this Agreement to the contrary, if Parent terminates this Agreement pursuant to Section 7.1(h), then Parent shall pay to the Company the Parent Termination Fee at or prior to the time of, and as a pre-condition to the effectiveness of, termination by wire transfer of immediately available funds to an account designated by the Company.
(i) Any payment required pursuant to Sections 8.1(b), 8.1(c) or 8.1(d) shall be made within one Business Day after termination of this Agreement by wire transfer of immediately available funds to an account designated by the party entitled to such payment. Any payment of the Company Termination Fee pursuant to Section 8.1(e) or the Parent Termination Fee pursuant to Section 8.1(f) shall be made prior to or concurrently with the first to occur of the execution of a definitive agreement providing for an Acquisition Proposal or the consummation of an Acquisition Proposal. Each party acknowledges that the agreements contained in this Section 8.1 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if either party fails promptly to pay or cause to be paid the amounts due from it pursuant to this Section 8.1, and, in order to obtain such payment, the other party commences a suit that results in a judgment for the amounts set forth in this Section 8.1, the defaulting party shall pay to the other party its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit and any appeal relating thereto, together with interest on the amounts set forth in this Section 8.1 from the date payment was due at 8% per annum.
(j) For purposes of Sections 8.1(e) and 8.1(f), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(g), except that all references to “20%” therein shall be deemed to be references to “50%.”
(k) This Section 8.1 shall survive any termination of this Agreement. In no event shall either party be entitled to receive the fees or expenses was in material breach of its obligations under this AgreementArticle VIII more than an aggregate amount equal to the Company Termination Fee or Parent Termination Fee, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Forest Oil Corp), Merger Agreement (Houston Exploration Co)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all All fees and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated hereby by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
If this Agreement is terminated: (i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
9.1(c) or (ii) by the Company pursuant to Section 9.1(e), then the Company shall immediately prior to any such termination by the Company or, in the event of a termination by Parent, promptly, but in no event later than two (2) days after the date of such termination, pay Parent a fee equal to $44,500,000 (the "Termination Fee"). If this Agreement is terminated by any party hereto: (x) pursuant to Section 9.1(b)(i) following a failure by the Company to hold the Stockholders Meeting in breach of its obligations under Section 7.1(b) or (y) pursuant to Section 9.1(b)(iii) and at or prior to the time of the Stockholders Meeting an Alternative Acquisition Proposal shall have been publicly announced and, prior to the date twelve (12) months following the date of the termination of this Agreement, the Company shall either (A) consummate an Alternative Acquisition or (B) enter into an Acquisition Agreement by Parent pursuant providing for an Alternative Acquisition, which Alternative Acquisition is subsequently consummated, then the Company shall pay the Termination Fee in the case of clause (A) concurrently with the consummation of such Alternative Acquisition or in the case of clause (B) concurrently with the consummation of the transaction subject to Section 10.1(a); or
such Acquisition Agreement (iiiwhether or not such transaction is consummated prior to the date twelve (12) months following the date of the termination of this Agreement by the Company or Parent Agreement). All payments made pursuant to this Section 10.1(g)9.3(b) shall be made by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company shall pay Parent a fee of $500,000 upon acknowledges that the termination of this Agreement by Parent or the Company pursuant to agreements contained in Section 10.1(c9.3(b) as a result are an integral part of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or transactions contemplated by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant and that, without these agreements, Parent would not enter into this Agreement. If the Company shall fail to Section 10.1(f) based upon a failure of pay the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b)Termination Fee when due, (c) or 11.1(d) the Termination Fee shall be paid within one business day after deemed to include the first costs and expenses incurred by Parent (including, without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.3, together with interest on such unpaid Termination Fee, commencing on the date that the Termination Fee became due, at a rate equal to occur the rate of interest publicly announced by Citibank, N.A., from time to time, in the events described in Sections 11.1(b), (c) or 11.1(d)City of New York, as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementbank's Base Rate plus one percent (1%).
Appears in 2 contracts
Samples: Merger Agreement (Therasense Inc), Merger Agreement (Therasense Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.04, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company agrees that if this Agreement shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsbe terminated:
(i) pursuant to Section 9.01(e)(ii), (A) at any time after the date hereof and prior to the Acceptance Date, an Acquisition Proposal shall have been publicly announced prior to such Termination Date (and such Acquisition Proposal was not withdrawn prior to the Termination Date), and (B) concurrently with such termination or within twelve (12) months following the termination of this Agreement by Parent Agreement, the Company enters into an agreement with any third party with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, then the Company shall pay to Parent, if and when consummation of such Acquisition Proposal occurs, the Company Termination Fee and Termination Expenses, less any amounts previously paid pursuant to Section 10.1(d9.04(b)(ii) (and for purposes of this Section 9.04(b)(i), “more than 50%” shall be substituted for “20%” in the definition of Acquisition Proposal);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a9.01(e)(ii), which breach was caused by the actions of any person or persons listed on Exhibit A, then the Company shall pay to Parent the Company Termination Fee and Termination Expenses (and for purposes of this Section 9.04(b)(ii), “$30,000,00.00 shall be substituted for “$90,666,000.00” in the definition of “Company Termination Fee”); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g9.01(e)(i) or Section 9.01(i), then the Company shall pay to Parent the Company Termination Fee and Termination Expenses.
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) Except as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.69.01(i), if the Company Termination Fee and Termination Expenses shall be paid by the Company as directed by Parent in writing in immediately available funds as soon as is reasonably practicable, but in any event no more than three (3) Business Days following the event giving rise to the obligation to make such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerpayment.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent For purposes of this Agreement, or pursuant “Company Termination Fee” means an amount equal to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4$90,666,000.00 U.S. Dollars (ninety million six hundred sixty-six thousand U.S. Dollars).
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (New Plan Excel Realty Trust Inc), Merger Agreement (Centro Properties LTD)
Fees and Expenses. (a) Except as set forth in subsection (b) of Section 5.15, this Section 11.1 8.3 or as otherwise provided hereinin this Agreement, 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 Parent RMT Partner and Remainco shall pay 100% of share equally all fees (i) printing and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection mailing costs associated with the printing Spinco Registration Statement, the RMT Partner Form S-4 Registration Statement and filing of the Joint Proxy Statement/Prospectus and (including any preliminary materials ii) SEC filing fees relating thereto) to the Contemplated Transactions. For the avoidance of doubt, all fees and expenses incurred by the Spinco Companies in connection with this Agreement and the S-4 Registration Statement Contemplated Transactions (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% other than those incurred in respect of the Proxy Expenses in the event the Merger is not approved by the holders Spinco Financing) shall be deemed to be Liabilities of the Company's Common Stock and Preferred StockRemainco.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) the termination of this Agreement is terminated by Parent Remainco pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a8.1(e); or
(iiiii) this Agreement is terminated by RMT Partner or Remainco pursuant to Section 8.1(d), and (A) after the date of this Agreement but before the RMT Partner Stockholders’ Meeting a bona fide Acquisition Proposal with respect to RMT Partner shall have been made or shall have been publicly announced to or shall have become publicly known by the shareholders of RMT Partner generally, and (B) within twelve (12) months after such termination RMT Partner shall have entered into a definitive agreement to consummate, or shall have consummated, any Acquisition Proposal; provided, for purposes of this Section 8.3(b)(ii), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%; then RMT Partner shall pay to Remainco, in cash by wire transfer of same-day funds, (1) in the case of a fee payable pursuant to clause (b)(i), within three Business Days after termination of this Agreement by Agreement; and (2) in the Company case of a fee payable pursuant to clause (b)(ii) above, upon the consummation of such Acquisition Proposal, a nonrefundable fee in the amount of $150,000,000 (the “RMT Partner Termination Fee”). Notwithstanding anything to the contrary contained herein, the rights of Remainco under this Section 8.3 are independent of and in addition to such rights and remedies Remainco may have under Section 9.5 or Parent at law, in equity, in contract, in tort or otherwise for any misrepresentation, breach of warranty or failure to fulfill any agreement or covenant hereunder on the part of any party hereto. For the avoidance of doubt, Remainco may simultaneously pursue (i) a grant of specific performance pursuant to Section 10.1(g9.5, (ii) its rights and remedies at law, in equity, in contract, in tort or otherwise, and (iii) payment of the RMT Partner Termination Fee pursuant to Section 8.3(b).
(c) The Company shall pay Parent a fee of $500,000 upon In the termination of event that:
(i) this Agreement is terminated by Parent or the Company RMT Partner pursuant to Section 10.1(c8.1(h); or
(ii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock this Agreement is terminated by RMT Partner or Preferred Stock, or by Parent Remainco pursuant to Section 10.1(b8.1(i), and (A) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from after the date of this Agreement but before the Company enters Remainco Stockholders’ Meeting a bona fide Acquisition Proposal with respect to Spinco or Remainco shall have been made or shall have been publicly announced to or shall have become publicly known by the stockholders of Remainco generally, and (B) within twelve (12) months after such termination Remainco shall have entered into an a definitive agreement to be acquired consummate, or shall have consummated, any Acquisition Proposal; provided, for purposes of this Section 8.3(c)(ii), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%; then Remainco shall pay to RMT Partner, in cash by wire transfer of same-day funds, (1) in the case of a fee payable pursuant to clause (c)(i), within three Business Days after termination of this Agreement; and (2) in the case of a fee payable pursuant to clause (c)(ii) above, upon the consummation of such Acquisition Proposal, a nonrefundable fee in the amount of $150,000,000 (the “Remainco Termination Fee”). Notwithstanding anything to the contrary contained herein, the rights of RMT Partner under this Section 8.3 are independent of and in addition to such rights and remedies RMT Partner may have under Section 9.5 or at law, in equity, in contract, in tort or otherwise for any third misrepresentation, breach of warranty or failure to fulfill any agreement or covenant hereunder on the part of any party hereto. For the avoidance of doubt, RMT Partner may simultaneously pursue (including any current AMVC shareholderi) a grant of specific performance pursuant to Section 9.5, (ii) its rights and remedies at law, in equity, in contract, in tort or a majority otherwise, and (iii) payment of AMVC Common Stock is acquired by a third party in a tender offerthe Remainco Termination Fee pursuant to Section 8.3(c).
(d) Parent In the event that:
(i) Remainco shall pay be entitled to receive the Company RMT Partner Termination Fee pursuant to this Section 8.3, such fee is not a fee of $2 million upon termination penalty but shall be liquidated damages in a reasonable amount for any and all losses or damages suffered or incurred by Remainco in connection with the matter forming the basis for such termination. Notwithstanding any other provision of this Agreement by to the Company pursuant contrary, the parties agree that if actually paid in full, the RMT Partner Termination Fee shall represent the sole and exclusive remedy of Remainco and its Affiliates in the circumstances in which it is payable and Remainco and its Affiliates shall not be entitled to Section 10.1(e) after a Breach by Parent of this Agreementbring or maintain any other claim, action or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b)proceeding against RMT Partner or its Affiliates or any Financing Source, (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to precluded from any other remedy against the other, ifat law or in equity or otherwise, immediately prior and shall not seek to obtain any recovery, judgment or damages of any kind against RMT Partner (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other representative of the RMT Partner Companies) or any Financing Source in connection with or arising out of the termination of this Agreement, any breach (whether such breach is intentional, unintentional, willful or otherwise) of or by RMT Partner or Merger Sub giving rise to such termination, the party failure of the Merger and the other Contemplated Transactions to be consummated, the failure by RMT Partner or Merger Sub to perform under this Agreement or failure by RMT Partner or Merger Sub to perform any obligation under Legal Requirement (in each case, whether such failure is intentional, unintentional, willful or otherwise).
(ii) RMT Partner shall be entitled to receive the Remainco Termination Fee pursuant to this Section 8.3, 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 RMT Partner in connection with the matter forming the basis for such termination. Notwithstanding any other provision of this Agreement to the contrary, the parties agree that if actually paid in full, the Remainco Termination Fee shall represent the sole and exclusive remedy of RMT Partner and its Affiliates in the circumstances in which it is payable and RMT Partner and its Affiliates shall not be entitled to bring or maintain any other claim, action or proceeding against Remainco or its Affiliates or any Financing Source, 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 Remainco (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other representative of the Remainco Companies) or any Financing Source in connection with or arising out of the termination of this Agreement, any breach (whether such breach is intentional, unintentional, willful or otherwise) of or by Remainco or Spinco giving rise to such termination, the failure of the Merger and the other Contemplated Transactions to be consummated, the failure by Remainco or Spinco to perform under this Agreement or failure by Remainco or Spinco to perform any obligation under Legal Requirement (in each case, whether such failure is intentional, unintentional, willful or otherwise).
(e) If:
(i) RMT Partner fails to pay when due any amount payable by RMT Partner under this Section 8.3, then: (i) RMT Partner shall reimburse Remainco for all costs and expenses (including reasonable fees or expenses was and disbursements of counsel) incurred in material breach connection with the collection of such overdue amount and the enforcement by Remainco of its obligations rights under this Section 8.3 and (ii) RMT Partner shall pay to Remainco interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to the other party in full) at a rate per annum equal to the lower of: (A) 300 basis points over the “prime rate” (as published by the Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid or (B) the maximum rate permitted by applicable Legal Requirement.
(ii) Remainco fails to pay when due any amount payable by Remainco under this Section 8.3, then: (i) Remainco shall reimburse RMT Partner for all costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by RMT Partner of its rights under this Section 8.3 and (ii) Remainco shall pay to RMT Partner interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to the other party in full) at a rate per annum equal to the lower of: (A) 300 basis points over the “prime rate” (as published by the Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid or (B) the maximum rate permitted by applicable Legal Requirement.
(f) Notwithstanding anything to the contrary contained in this Agreement, (i) RMT Partner in no event shall be obligated to pay the RMT Partner Termination Fee more than once, regardless of the number of agreements and occurrences that would otherwise result in multiple payments thereof and (ii) Remainco in no event shall be obligated to pay the Remainco Termination Fee more than once, regardless of the number of agreements and occurrences that would otherwise result in multiple payments thereof.
(g) Without limiting the rights of RMT Partner and Spinco under the RMT Partner Commitment Letter or Spinco Commitment Letter, or of RMT Partner, Spinco or any of their respective Subsidiaries under any RMT Partner Financing Agreement or Spinco Financing Agreements and notwithstanding anything to the contrary contained in this Agreement, Remainco agrees that none of (i) the RMT Partner Financing Sources or Spinco Financing Sources or (ii) any of the respective Affiliates of such Financing Sources or any of such Financing Sources’ or their respective Affiliates’ respective former, current or future general or limited partners, shareholders, managers, members, agents, officers, directors, employees, accountants, advisors, or representatives or any of their respective successors or assigns (the Persons referred to in this clause (ii) being collectively referred to as the “Financing Source Related Parties”) shall have any liability or obligation to Remainco, its stockholders or its Affiliates (other than Spinco) relating to this Agreement or any of the transactions contemplated hereby (including the RMT Partner Financing and the Spinco Financing), whether at law, in equity, in contract, in tort or otherwise.
(h) Without limiting the rights of Remainco under the Remainco Commitment Letter or of RMT Partner, Spinco, Remainco or any of their respective Subsidiaries under any Financing Agreements and notwithstanding anything to the contrary contained in this Agreement, each of RMT Partner and Spinco agrees that none of (i) the Remainco Financing Sources or (ii) any of the Remainco Financing Sources’ Financing Source Related Parties shall have any liability or obligation to RMT Partner, Spinco, their respective stockholders or their respective Affiliates (other than Remainco) relating to this Agreement or any of the transactions contemplated hereby (including the Remainco Financing), whether at law, in equity, in contract, in tort or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Rexnord Corp), Merger Agreement (Regal Beloit Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, 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 Parent and the Company shall pay 100% of share equally all fees and expenses, other than attorneys attorneys' fees and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary 52 materials relating related thereto) and ), the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, and filings under the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockHSR Act.
(b) The Company shall reimburse Parent for all fees and expenses of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination (including without limitation fees and expenses of Parent's counsel, accountants and financial advisors), upon the termination of this Agreement (i) by Parent or the Company pursuant to Section 8.1(d), (ii) by Parent pursuant to Sections 8.1(e) or 8.1(h) or (iii) by the Company pursuant to Section 8.1(g).
(c) The Company shall pay Parent a termination fee of $2 million 44,630,000 upon the earliest to occur of any of the following events:events (each, a "Termination Event"):
(i) the entry by the Company into an agreement with respect to, or the consummation of, any Acquisition Proposal or the acquisition by any person of beneficial ownership of 20% or more of the equity or voting interests of the Company in any such case within one year of the termination of this Agreement by Parent pursuant to Section 10.1(d)Sections 8.1(b) or 8.1(d) if prior to such termination an Acquisition Proposal shall have been publicly announced or otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal;
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a8.1(h); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g8.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this AgreementThe expenses and fees, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees if applicable, payable pursuant to Sections 11.1(b), (c8.3(b) or 11.1(dand 8.3(c) shall be paid within one business day after promptly, but in no event later than the date of the first to occur of the events described in Sections 11.1(b8.3(b)(i), (cii) or 11.1(d(iii) or 8.3(c)(i), as the case may be, and the expenses payable pursuant to Section 11.1(a(ii) shall be paid within five business days after receipt of written documentation of the amount of expenses so payableor (iii); provided, however, that in no event shall Parent or the Company, as the case may be, Company be required to pay such the expenses and fees or expenses to the otherof Parent, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses Parent was in material breach of its obligations under this Agreement. The Company acknowledges that the agreements contained in Section 8.3(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay the amount due pursuant to Section 8.3(c), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in Section 8.3(c), the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (Emc Corp), Merger Agreement (Emc Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or not the Merger is consummated, except as otherwise specifically provided herein, all fees costs 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a fee of $2 million upon the earliest to occur of any of the following eventsFee if this Agreement is terminated as follows:
(i) if (i) after the termination of this Agreement by Parent pursuant to Section 10.1(d);
date hereof, a Takeover Proposal shall have become publicly known, (ii) the termination of thereafter, this Agreement by Parent pursuant to Section 10.1(a); or
is terminated (iiiA) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock8.01(c), or (B) by Parent pursuant to Section 10.1(b8.01(d), and (iii) based on within nine (9) months of such termination, the Company Board approves or recommends any Takeover Proposal (regardless of when made), the Company or any of its Subsidiaries enters into any acquisition agreement, merger agreement or other definitive agreement that provides for any Takeover Proposal, or any Takeover Proposal is consummated, then, in any such case, the Company shall pay to Parent (or a failure person designated by Parent in writing) the Fee by wire transfer of same-day funds within two (2) Business Days of the condition earliest of the date any such Company Board approval or recommendation is made, any such acquisition agreement, merger agreement or other definitive agreement is entered into by the Company or any of its Subsidiaries or the date any such transaction is consummated. Solely for purposes of this Section 8.03(b)(i), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 7.56.02(g), or except that all references to “20%” therein shall be deemed to be references to “50%”;
(ii) if this Agreement is terminated by Parent pursuant to Section 8.01(f), then the Company shall pay to Parent the Fee by wire transfer of same-day funds within one (1) Business Day following the date of such termination of this Agreement; or
(iii) if this Agreement is terminated by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.68.01(g), if in any such event within 24 months from the date of this Agreement then the Company enters into an agreement shall pay to be acquired Parent the Fee by any third party wire transfer of same-day funds prior to or simultaneously with (including any current AMVC shareholderand as a condition to the effectiveness of) or a majority of AMVC Common Stock is acquired by a third party in a tender offersuch termination.
(dc) The parties acknowledge that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty, and that, without these agreements, the parties would not have entered into this Agreement. For the avoidance of doubt, the Fee shall be payable only once and not in duplication even though the Fee may be payable under one or more provisions hereof. Subject to Section 8.02, in the event Parent shall pay receive the Fee, the receipt thereof shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby (and the termination thereof or any matter forming the basis for such termination), and neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other Legal Proceeding against the Company a fee or any of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent its Affiliates arising out of this Agreement, or pursuant to Section 10.1(f) based upon a failure any of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees transactions contemplated hereby or any matters forming the basis for such termination. If the Company fails promptly to pay the Fee when due and payable pursuant to Sections 11.1(b)this Section 8.03, and, in order to obtain such payment, Parent commences an action or other proceeding that results in an award against the Company for such Fee, the Company shall pay Parent’s costs and expenses (cincluding reasonable attorneys’ fees and expenses) in connection with such action or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b)proceeding, (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of together with interest on the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as Fee from the case may be, be date such payment was required to pay be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such fees or expenses payment was required to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementbe made.
Appears in 2 contracts
Samples: Merger Agreement (Mallinckrodt PLC), Merger Agreement (Cadence Pharmaceuticals Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of contemplated by this Section 11.1 or as otherwise provided hereinAgreement, all fees and expenses incurred in connection with the Offer, the Merger, this Agreement and the transactions contemplated hereby Transactions shall be paid by the party incurring such fees or expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent to Parent, upon demand a fee of $2 1 million upon (the earliest to occur "Termination Fee"), payable in same day funds, if (A) after the date of --------------- this Agreement, any person or "group" (within the meaning of Section 13(d)(3) of the following events:
Exchange Act) shall have publicly made a Takeover Proposal, (iB) the termination Offer shall have remained open until at least the scheduled expiration date immediately following the date such Takeover Proposal is made (and in any event for at least ten business days following the date such Takeover Proposal is made), (C) the Minimum Condition shall not have been satisfied at the expiration of the Offer, (D) this Agreement by Parent shall thereafter be terminated pursuant to Section 10.1(d7.1(b)(i);
, and (iiE) the termination Company Board, within 10 business days after the public announcement of this Agreement by Parent pursuant the Takeover Proposal, either fails to Section 10.1(a); or
(iii) the termination recommend against acceptance of this Agreement such Takeover Proposal by the Company Company's stockholders or Parent pursuant announces that it takes no position with respect to Section 10.1(g)the acceptance of such Takeover Proposal by the Company's stockholders.
(c) The If (x) the Company shall pay Parent a fee of $500,000 upon the termination of terminate this Agreement by Parent or the Company pursuant to Section 10.1(c7.1(c), (y) Parent shall terminate this Agreement pursuant to Section 7.1(d)(iii) hereof, or (z) either the Company or Parent terminates this Agreement pursuant to Section 7.1(b)(i) as a result of the existence of any condition set forth in paragraph (d) of Annex A; the Company shall pay to Parent, an amount (the "Expense Reimbursement Amount") equal to $200,000, which ---------------------------- shall be payable in same day funds. The equal Expense Reimbursement Amount shall be paid concurrently with any such termination. Parent shall reimburse the Company to the extent such Expense Reimbursement Amount exceeds its actual expenses.
(d) If Parent shall terminate this Agreement upon failure by Parent to satisfy the Financing Condition, Parent shall pay to the Company an amount equal to $100,000, which shall be payable in same day funds (the "Company Reimbursement Amount"); provided, however, Parent and Purchaser shall not be obligated to pay the Company Reimbursement Amount if such failure to receive satisfy the requisite approval of Financing Condition is due to the failure by the Company to fulfill its obligations under this Agreement or satisfy the conditions precedent applicable to the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant if any, to Section 10.1(bthe Financing set forth in the Financing Commitment Letter.
(e) based on a failure of Notwithstanding the condition in Section 7.5foregoing, or the aggregate payment by the Company pursuant to Section 10.1(f8.1(b) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(dand 8.1(c) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementnot exceed $1 million.
Appears in 2 contracts
Samples: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise specifically provided for herein, all fees and expenses incurred in connection with the Merger and the other transactions contemplated by this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is such transactions are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a fee of $2 million upon 109,000,000 (the earliest to occur of any of the following events“Termination Fee”) if:
(i) the termination of Company terminates this Agreement by Parent pursuant to Section 10.1(d);
(ii8.01(d) the termination of or Parent terminates this Agreement by Parent pursuant to Section 10.1(a8.01(f) (other than as a result of any Company Adverse Recommendation Change made by the Company relating to a Parent Material Adverse Effect); or
(iiiii) the termination of this Agreement by (A) an Acquisition Proposal shall have been announced, commenced, publicly disclosed or otherwise made known to the Company or Parent shall have been made directly to the stockholders of the Company generally; (B) thereafter this Agreement is terminated pursuant to Section 10.1(g8.01(b)(i), Section 8.01(b)(iii) or Section 8.01(e); and (C) within 12 months of such termination (x) the Company enters into an Alternative Acquisition Agreement with respect to an Acquisition Proposal that is subsequently consummated or (y) an Acquisition Proposal is consummated; provided, however, that for purposes of this Section 8.03(b)(ii), the references to 15% in the definition of “Acquisition Proposal” shall be deemed to be references to 50%.
(c) The Company shall pay to Parent a fee of $500,000 upon 40,000,000 (the termination of this Agreement by “Company Expense Reimbursement”) if Parent or the Company terminates this Agreement pursuant to Section 10.1(c) as a result 8.01(b)(iii). The existence of circumstances which could require the failure Termination Fee to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or become subsequently payable by the Company pursuant to Section 10.1(f8.03(b)(ii) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement shall not relieve the Company enters into an agreement of its obligations to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee Expense Reimbursement pursuant to this Section 8.03(c), and the payment by the Company of $2 million upon termination the Company Expense Reimbursement pursuant to this Section 8.03(c) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 8.03(b)(ii). In the event the Company pays the Company Expense Reimbursement pursuant to this Agreement Section 8.03(c), the amount of such Company Expense Reimbursement actually paid shall be credited against any Termination Fee subsequently payable by the Company pursuant to Section 10.1(e8.03(b)(ii).
(d) after a Breach Any amounts due under Section 8.03(b) or Section 8.03(c) shall be paid by Parent wire transfer of same-day funds (i) in the case of Section 8.03(b)(i), on the Business Day immediately following the date of termination of this Agreement in the case of termination pursuant to Section 8.01(f) (or simultaneous with such termination, in the case of termination pursuant to Section 8.01(d)), (ii) in the case of Section 8.03(b)(ii), on the date of consummation of the Acquisition Proposal referred to in Section 8.03(b)(ii)(C), and (iii) in the case of Section 8.03(c), on the Business Day immediately following the date of termination of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable Company acknowledges and agrees that the agreements contained in Section 8.03(b) and Section 8.03(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to pay any amounts due pursuant to Sections 11.1(bSection 8.03(b) or Section 8.03(c), and, in order to obtain such payment, Parent commences an Action that results in a judgment in its favor for such payment, the Company shall pay to Parent its costs and expenses (cincluding attorneys’ fees and expenses) or 11.1(d) shall in connection with such Action, together with interest on the amount of such payment from the date such payment was required to be paid within one business day after made until the first date of payment at a rate per annum equal to occur the prime interest rate published in The Wall Street Journal on the date such interest begins accruing. The parties agree that the receipt of the events described in Sections 11.1(b), (c) or 11.1(d)Termination Fee and/or the Company Expense Reimbursement, as the case may be, together with the amounts described in the immediately preceding sentence, shall be the sole and exclusive monetary remedy available to Parent and Merger Sub with respect to this Agreement and the expenses payable pursuant transactions contemplated hereby in the event such amounts are paid by the Company and accepted by Parent, and, upon payment of such amounts by the Company and the acceptance of such amounts by Parent, the Company, the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives shall have no further liability to Section 11.1(a) Parent and Merger Sub under this Agreement. In no event shall the Company be paid within five business days after receipt of written documentation of obligated to pay the amount of expenses so payableTermination Fee or the Company Expense Reimbursement on more than one occasion; provided, however, that in no event shall Parent or (i) the Company, as the case Company may be, be required to pay both the Company Expense Reimbursement pursuant to Section 8.03(c) and a portion of the Termination Fee pursuant to Section 8.03(b)(ii) and (ii) no such fees payment shall relieve any Person from any liability or expenses to the other, if, immediately prior to the termination damages arising out of: (x) fraud in connection with this Agreement or (y) any willful or intentional breach of any provision of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Community Health Systems Inc), Merger Agreement (Health Management Associates, Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein7.03, 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 -------- ------- Parent and the Company shall pay 100% of share equally (i) all SEC filing fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), printing expenses incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating related thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto and (together, ii) conveyance and similar taxes required to be paid or which Parent has agreed should be paid prior to the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockEffective Time pursuant to Section 5.16.
(b) The Company shall pay Parent Guarantor a fee of $2 9.5 million (the "Fee") and shall also pay Parent's and Guarantor's respective actual, documented and reasonable out-of-pocket expenses relating to the transactions contemplated by this Agreement (including, but not limited to, fees and expenses of counsel and accountants and out-of-pocket expenses (but not fees) of financial advisors) ("Expenses," as applicable to Parent, Guarantor or the Company) in a combined amount not to exceed $1.5 million, upon the earliest first to occur of any of the following events:
(i) the termination of this Agreement by Parent or the Company pursuant to Section 10.1(d7.01(c) following the Company Stockholders Meeting at which the stockholders of the Company failed to adopt this Agreement, provided that (A) the Alternative Transaction Condition is satisfied and (B) the Exchange Ratio has not been adjusted pursuant to Section 7.01(j);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a7.01(e); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g7.01(i). The "Alternative Transaction Condition" shall be satisfied in respect of a termination of this Agreement if an Alternative Transaction shall be publicly announced by the Company or any third party during the period beginning on the date of this Agreement and ending 12 months following the date of termination of this Agreement and such transaction shall at any time thereafter be consummated on substantially the terms theretofore announced; provided, that in the case of -------- Section 7.03(b)(i), such transaction provides for a per Share consideration with a fair market value greater than $23.00; and provided further, that for purposes -------- ------- of this definition, the definition of Alternative Transaction set forth in Section 4.02(a) shall be modified to replace "25%," as it appears in such definition, with 40%.
(c) The Company shall pay Parent Upon a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c7.01(h), (i) as the Company shall pay to Guarantor and Parent their respective Expenses relating to the transactions contemplated by this Agreement in a result combined amount not to exceed $1.5 million, and (ii) the Company shall pay Guarantor the Fee provided that (I) such Termination Breach is willful and (II) the Alternative Transaction Condition is satisfied.
(d) Upon a termination of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or this Agreement by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.57.01(f), or by the Company pursuant shall pay to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party Guarantor and Parent their respective Expenses in a tender offercombined amount not to exceed $1.5 million.
(de) Parent shall pay the Company Upon a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e7.01(f) after a Breach by or Section 7.01(h), Parent of this Agreement, or shall pay to the Company its Expenses in an amount not to exceed $2.0 million.
(f) The Fee and Expenses payable pursuant to Section 10.1(f7.03(b) based upon a failure of or Section 7.03(c), or the conditions set forth in Sections 8.1 through 8.4.
(e) The fees Expenses payable pursuant to Sections 11.1(bSection 7.03(d) or Section 7.03(e), (c) or 11.1(d) shall be paid within one business day after a demand for payment following the first to occur of any of the events described in Sections 11.1(b), (c) or 11.1(d)the aforesaid Sections, as the case may beapplicable; provided that, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, Company be required to pay such fees the -------- Fee or expenses any Expenses to Parent, nor shall Parent be required to pay any Expenses to the other, Company if, immediately prior to the termination of this Agreement, the party entity otherwise entitled to receive the fees or such fee and/or expenses was in material breach of its obligations under this AgreementAgreement or, in the case of Parent, Merger Sub was in material breach of its obligations under this Agreement or Guarantor was in material breach of the Guarantee.
(g) Each of the Company, Parent and Merger Sub agrees that the payments provided for in this Section 7.03 shall be the sole and exclusive remedy of Parent and Merger Sub upon a termination of this Agreement by Parent pursuant to Section 7.01(c), (e), (f), (h) or (i), and the payments provided for in this Section 7.03 shall be the sole and exclusive remedy of the Company upon a termination of this Agreement by the Company pursuant to Section 7.01(f) or (h), regardless of the circumstances giving rise to such termination; provided, -------- however, that the foregoing shall not apply to any willful breach of this ------- Agreement or any willful misrepresentation hereunder giving rise to such termination. Subject to Section 7.03(f), if a party is entitled to terminate this Agreement pursuant to more than one clause of Section 7.01, such party shall be entitled to receive the Fees and Expenses to which it is entitled as a result of any such termination, provided that in no event shall there be any duplication of payment.
Appears in 2 contracts
Samples: Merger Agreement (Scott Technologies Inc), Merger Agreement (Scott Technologies Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, each party shall bear all of the 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred it in connection with the printing negotiation and filing performance of this Agreement, and no party may recover any such fees and expenses from the Proxy Statement/Prospectus (including other parties upon any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% termination of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockthis Agreement.
(b) The Company shall pay reimburse the Parent a fee of $2 million upon the earliest to occur of any for all documented out-of-pocket expenses, fees and costs (including, but not limited to, expenses and fees of the following eventsParent’s counsel, accountants, financial advisors and consultants and all filing fees paid to any Governmental Entity) of the Parent relating to the transactions contemplated by this Agreement (including in connection with the Parent’s due diligence investigation and the authorization, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the Merger) actually incurred prior to termination (collectively, “Transaction Expenses”), in the event of the termination of this Agreement:
(i) by the termination of this Agreement by Parent or the Company pursuant to Section 10.1(d)8.1(b)(i) if the failure to satisfy the conditions set forth in Section 7.1(a) or 7.2(a) or (b) by the Outside Date shall have resulted in the Closing not occurring;
(ii) by the termination of this Agreement by Parent pursuant to Section 10.1(a8.1(c)(ii);
(iii) by the Parent pursuant to Section 8.1(c)(iii); or
(iiiiv) by the termination Parent or the Company pursuant to Section 8.1(b)(iii); provided, however, that the Company shall not have to reimburse Transaction Expenses (A) pursuant to Section 8.3(b)(i), (ii) or (iv) in excess of $2 million in the aggregate or (B) pursuant to Section 8.3(b)(iii) in excess of $3 million in the aggregate (the amount in clause (A) or (B), as the case may be, the “Transaction Expense Cap”) (which Transaction Expense Cap shall be increased if the Parent receives a request for additional information from a Governmental Entity with respect to Anti-Trust Law compliance (a “Request”), but only to the extent the Parent incurs additional Transaction Expenses from and after the date of such Request; provided, however, that the Transaction Expense Cap shall not exceed $5 million). The expenses payable pursuant to this Agreement Section 8.3(b) shall be paid by wire transfer of same-day funds within ten business days after demand therefor (and receipt by the Company or Parent pursuant of reasonably appropriate supporting documentation) following the occurrence of the termination event giving rise to the payment obligation described in this Section 10.1(g8.3(b).
(c) The Company shall pay to the Parent $8,965,500 (the “Termination Fee”) in cash if:
(i) this Agreement is terminated by the Parent pursuant to Section 8.1(c)(i);
(ii) after the date of this Agreement:
(A) (x) an Acquisition Proposal (or an amendment to an Acquisition Proposal made prior to the date of this Agreement) shall be announced, commenced, publicly disclosed or otherwise made publicly known; (y) this Agreement is terminated pursuant to Section 8.1(b)(iii); and (z) within nine months after such termination the Company enters into a fee definitive agreement to consummate, or consummates, any Acquisition Proposal (regardless of $500,000 upon whether made before or after the termination of this Agreement), or
(B) (x) any person makes an Acquisition Proposal (or amends an Acquisition Proposal made prior to the date of this Agreement); (y) this Agreement by Parent or the Company is terminated pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock8.1(b)(i), or by Parent pursuant 8.1(c)(ii); and (z) within nine months after such termination the Company enters into a definitive agreement to Section 10.1(b) based on a failure of the condition in Section 7.5consummate, or consummates, any Acquisition Proposal (regardless of whether made before or after the termination of this Agreement); provided, however, that for purposes of Sections 8.3(c)(ii)(A) and (B), the references to 20% in the definition of Acquisition Proposal shall be deemed to be references to 50%; or
(iii) this Agreement is terminated by the Company pursuant to Section 10.1(f8.1(d)(ii). Any fee due under Section 8.3(c)(iii) based shall be paid by wire transfer of same-day funds on the failure date of termination of this Agreement. Any fee due under Section 8.3(c)(i) shall be paid by wire transfer within two business days of termination of this Agreement. Any fee due under Section 8.3(c)(ii) shall be paid by wire transfer of same-day funds on or prior to the date on which the condition set forth in clause (z) of Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder8.3(c)(ii)(A) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(dB), as the case may be, is satisfied and shall be less any amounts previously paid to the Parent by the Company pursuant to Section 8.3(b). If the Company fails to timely pay the amount due pursuant to Section 8.3, or any portion thereof, (i) such amount or portion thereof shall accrue interest from the date such payment was required to be made through the date of payment at the prime rate of Citibank N.A. in effect on the date such payment was required to be made plus 5% and (ii) the Company shall pay to the Parent or Merger Sub its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with any suit (and any appeals thereof) that results in a final, non-appealable judgment against the Company for the amount set forth in Section 8.3 or any portion thereof.
(d) The parties agree that, except in the case of liability of the Company for fraud under this Agreement, the amounts referenced in Section 8.3(b) and (c) shall be the sole and exclusive monetary remedy available to Parent and Merger Sub with respect to this Agreement and the expenses transactions contemplated hereby in the event such amounts are paid by the Company, and, upon payment of such amounts by the Company, the Company, the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives shall have no further liability to Parent and Merger Sub under this Agreement, except to the extent that following any payment of Transaction Expenses, the Termination Fee subsequently becomes payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in 8.3(c)(ii). In no event shall Parent or the Company, as the case may be, Company be required obligated to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was amounts referenced in material breach of its obligations under this AgreementSection 8.3(b) and (c) on more than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.03, all fees and expenses Expenses incurred in connection with this Agreement and the transactions contemplated hereby Transactions shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided. “Expenses”, howeveras used in this Agreement, that Parent shall pay 100% of include all reasonable out-of-pocket fees and expensesexpenses (including all reasonable fees and expenses of counsel, other than attorneys accountants, investment bankers, experts and accountants fees (as consultants to which each a party shall bear hereto and its own expenses), affiliates) incurred by a party or on its behalf in connection with or related to the printing authorization, preparation, negotiation, execution and performance of this Agreement and the Transactions, any litigation with respect thereto, the preparation, printing, filing and mailing of the Proxy Statement/Prospectus (including , the solicitation of stockholder approvals, the filing of any preliminary materials relating thereto) required notices under the HSR Act or other regulations and all other matters related to the closing of the Merger and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved other actions contemplated by the holders of the Company's Common Stock and Preferred Stockthis Agreement.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsagrees that:
(i) the termination of if Parent shall terminate this Agreement by Parent pursuant to Section 10.1(d8.01(c)(ii), Section 8.01(c)(iii) or Section 8.01(c)(iv) then the Company shall pay to Parent promptly (but in any event no later than two business days after such termination shall have occurred) a fee of $7,500,000 in immediately available funds (the “Termination Fee”);
(ii) if the termination of Company shall terminate this Agreement by Parent pursuant to Section 10.1(a8.01(d)(ii), then the Company shall pay to Parent the Termination Fee prior to or simultaneously with such termination;
(iii) if Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(iii), then the Company shall reimburse Parent all of its Expenses up to $1,000,000, provided that payment of the Expenses pursuant to this subsection (iii) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to subsection (v) below;
(iv) if (A) Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(i), (B) prior to the time of such termination a Takeover Proposal shall have been publicly announced with respect to the Company, and (C) within 12 months after the date of such termination the Company consummates a transaction contemplated by a Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referenced in clause (B)) (provided that for purposes of this Section 8.03(b)(iv), all references to 15% in the definition of “Takeover Proposal” shall be replaced with references to 50%), then the Company shall pay to Parent the Termination Fee within two business days of the consummation of the transaction contemplated by such Takeover Proposal;
(v) if (A) Parent or the Company shall terminate this Agreement pursuant to Section 8.01(b)(iii), (B) prior to the time of the Stockholders’ Meeting a Takeover Proposal shall have been publicly announced with respect to the Company, and (C) within 12 months after the date of such termination the Company consummates a transaction contemplated by a Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referenced in clause (B)) (provided that for purposes of this Section 8.03(b)(v), all references to 15% in the definition of “Takeover Proposal” shall be replaced with references to 50%), then the Company shall pay to Parent the Termination Fee, less the amount of any Expenses previously reimbursed by the Company to Parent under subsection (iii) above, within two business days of the consummation of the transaction contemplated by such Takeover Proposal; or
(iiivi) the termination of if (A) Parent shall terminate this Agreement by the Company or Parent pursuant to Section 10.1(g8.01(c)(i), (B) prior to the time of such termination (or in the 12 months after the time of such termination in the event of a termination on account of a breach of Section 6.04 or Section 6.02(a)) a Takeover Proposal shall have been publicly announced with respect to the Company, and (C) within 12 months after the date of such termination (or 12 months after the announcement of the Takeover Proposal in the case of a termination on account of a breach of Section 6.04 or Section 6.02(a)) the Company consummates a transaction contemplated by a Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referenced in clause (B)) (provided that for purposes of this Section 8.03(b)(vi), all references to 15% in the definition of “Takeover Proposal” shall be replaced with references to 50%), then the Company shall pay to Parent the Termination Fee within two business days of the consummation of the transaction contemplated by such Takeover Proposal.
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by If Parent or the Company pursuant is entitled to Section 10.1(c) as terminate this Agreement and Parent is entitled to receive a result Termination Fee, receipt by Parent of such Termination Fee in full will constitute liquidated damages and be the sole and exclusive remedy against the Company, its officers, directors, employees, agents, affiliates, and representatives regardless of the failure to receive the requisite approval circumstances of the Company's outstanding Common Stock or Preferred Stocksuch termination, or by Parent pursuant to Section 10.1(b) based on a failure except in cases of the condition fraud. The parties hereto acknowledge and agree that in Section 7.5, or by no event shall the Company pursuant be required to Section 10.1(f) based pay the Termination Fee on more than one occasion, whether or not the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date Termination Fee may be payable under more than provision of this Agreement Agreement, at the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) same or a majority at different times and the occurrence of AMVC Common Stock is acquired by a third party in a tender offerdifferent events.
(d) The Company and Parent shall pay acknowledge that the Company a fee of $2 million upon termination of agreements contained in this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure 8.03 are an integral part of the conditions set forth in Sections 8.1 through 8.4Transactions.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Enstar Group LTD), Merger Agreement (SeaBright Holdings, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as Unless specified otherwise provided herein, all fees and expenses incurred in connection with this Agreement Agreement, the Transactions, the solicitation of stockholder approvals and all other matters related to the transactions contemplated hereby Transactions shall be paid by the party incurring such expenses, whether or not the Merger Mergers or any other Transaction is consummated; provided, howeverexcept as otherwise set forth in this Agreement.
(a) If this Agreement shall be validly terminated by the Parent Entities pursuant to (i) Section 9.01(d)(i), that Parent or (ii) by the Company pursuant to Section 9.01(e)(i), then OpCo shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as or cause to which each party shall bear its own expensesbe paid) to the Parent Entities (or their designees) $288,500,000 (the “Company Termination Fee”) in accordance with Section 9.03(b), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The In the event the Company Termination Fee becomes payable by the Company Entities pursuant to Section 9.03(a), it shall pay be paid to the Parent a fee of $2 million upon Entities (or the earliest to occur of any of the following events:
Parent Entities’ designees) by OpCo (ior its designee) in immediately available funds within two Business Days after the termination of this Agreement by Parent Agreement; provided that, notwithstanding the foregoing, if the Company Termination Fee becomes payable pursuant to Section 10.1(d9.03(a);
, the Company Termination Fee shall be payable concurrently with the consummation of such Superior Proposal. The payment to the Parent Entities (iior the Parent Entities’ designees) of the termination Company Termination Fee shall be the sole and exclusive remedy of this Agreement by the Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement Related Parties for any loss suffered by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) Related Parties as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock Transactions to be consummated, and, upon such payment in accordance with this Section 9.03, the Company Related Parties shall not have any further liability or Preferred Stockobligation, relating to or by Parent pursuant to Section 10.1(barising out of this Agreement or the Transactions.
(c) based on a failure of the condition in Section 7.5, or If this Agreement shall be validly terminated (i) by the Company pursuant to Section 10.1(f9.01(e)(ii), Section 9.01(e)(iii) based on or Section 9.01(e)(iv) or (ii) by the Company or Parent Entity pursuant to Section 9.01(b) (if the events giving rise to such termination right are caused by or resulted from, in any material respect, a Parent Entity’s breach of any representations or warranties or failure to satisfy any agreements or covenants under this Agreement) or Section 9.01(c) at a time when the Company could terminate this Agreement pursuant to Section 9.01(e)(ii)) or Section 9.01(e)(iii), then the Parent Entities shall pay to OpCo (or its designee) the amount of $705,000,000 (the condition “Parent Termination Fee”) in accordance with Section 9.03(d). (d) In the event the Parent Termination Fee becomes payable by the Parent Entities pursuant to this Section 9.03, it shall be paid to OpCo (or its designee) by the Parent Entities in immediately available funds within two Business Days after such termination. Notwithstanding anything to the contrary set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement (including this Article IX), the Company enters into an agreement to be acquired by any third party Entities expressly acknowledge and agree that (including any current AMVC shareholderi) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by Entities’ right to receive the Parent Termination Fee pursuant to and in accordance with Section 9.03(c), (ii) the amounts payable to OpCo and the Company Subsidiaries pursuant to Section 10.1(e7.12(c), (iii) after a Breach the amounts payable to OpCo and the Company Subsidiaries pursuant to the penultimate sentence of this Section 9.03(d) (subject to the Expense Cap), (iv) the Company Entities’ right to seek specific performance or other equitable relief solely in accordance with, and subject to the limitations in, this Agreement (including Section 10.08) and the Equity Commitment Letter, (v) the rights of the Company Entities to bring any claims or otherwise pursue any Action in accordance with, and subject to the limitations in, the Guarantee and (vi) the rights of the Company Entities to bring any claims or otherwise pursue any Action under the Confidentiality Agreement and the Voting Agreement shall constitute the sole and exclusive remedies of the Company Entities, the Company Subsidiaries, their respective Affiliates or any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the “Company Related Parties”) against (A) the Parent Entities and the Merger Subs or (B) the Equity Investors and the Parent Entities’ and the Equity Investors’ respective Affiliates or any of their or their respective Affiliates’ respective former, current or future directors, officers, employees, general or limited partners, mangers, members, direct or indirect equityholders, controlling persons, attorneys, assignees, agents, representatives or representatives of any of the foregoing, or any former, current or future estates, heirs, executors, administrators, trustees, successors or assigns of any of the foregoing, or any financial institution which provides or is committed to provide financing in connection with the transactions contemplated by this Agreement or any of their respective Affiliates (collectively, the “Parent of Related Parties”), for, or with respect to, this Agreement, the Equity Commitment Letter, the Guarantee, the Confidentiality Agreement, the Voting Agreement, the Financings or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
transactions contemplated hereby or thereby (e) The fees payable pursuant to Sections 11.1(bincluding, any breach thereof by the Parent Entities or the Merger Subs), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party failure to consummate the Closing or any claims or actions under applicable Law arising out of any such breach, termination or failure and none of the Company Related Parties shall seek to recover any other damages or seek any other remedy, whether based on a claim at law or in equity, in contract, tort or otherwise, with respect to any such losses or damages (including in respect of any oral representation made or alleged to be made in connection herewith). Nothing in this Section 9.03(d) will preclude any liability of the Debt Financing Sources or the Preferred Equity Financing Sources to the Company Entities (following the Closing), the Parent Entities or the Merger Subs under the definitive agreements relating to the Debt Financing or the Preferred Equity Financing or limit the Company Entities (following the Closing), the Parent Entities or the Merger Subs from seeking to recover any such damages or obtain equitable relief from or with respect to any Debt Financing Source or Preferred Equity Investor pursuant to the definitive agreements relating to the Debt Financing or the Preferred Equity Financing. Notwithstanding anything to the contrary herein, other than the obligation of the Parent Entities to pay the Parent Termination Fee and any Additional Obligations in accordance with Section 9.03(c) and this Section 9.03(d) and the respective obligations of the Guarantors under, and pursuant to the terms of, the Guarantee, in no event will any Parent Related Party or any other Person have any liability for monetary damages to the Company Entities or any other Person relating to or arising out of this Agreement or the transactions contemplated by this Agreement. While the Company Entities may pursue both a grant of specific performance pursuant to Section 10.08(a) to cause consummation of the Transactions (including the Mergers) to occur and the payment of the Parent Termination Fee and any Additional Obligations (subject to the Expense Cap), in no event shall the Company Entities be entitled to receive both (i) an order for specific performance or any other equitable remedy of the fees type contemplated by Section 10.08(a) to cause consummation of the Transactions (including the Mergers) to occur and (ii) the Parent Termination Fee if payable pursuant to this Section 9.03; provided, that, for the avoidance of doubt, nothing in this Agreement shall be deemed to prohibit the Company Entities from pursuing (or expenses was obtaining) specific performance of the Parent Entities’ obligations hereunder or other equitable relief that does not require the Merger Subs to cause the Closing to occur and, to the extent this Agreement is subsequently terminated, the payment of the Parent Termination Fee and any Additional Obligations (subject to the Expense Cap). Each of the parties hereto acknowledges that the agreements contained in material breach this Section 9.03 are an integral part of its obligations under the transactions contemplated hereby, and that, without these agreements, the Company Entities would not enter into this Agreement. Accordingly, if OpCo or the Parent Entities fail to pay in a timely manner the Company Termination Fee or the Parent Termination Fee, as applicable, then OpCo shall pay (or cause to be paid) to the Parent Entities (or their designees) or the Parent Entities shall pay (or cause to be paid) to OpCo (or its designee), as applicable, interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made, plus 2% per annum (together with the obligations of the Parent Entities under Section 7.12(c), the “Additional Obligations”). The Company Entities and the Parent Entities hereby agree that the aggregate amount of the Additional Obligations payable by the Parent Entities or the Company Entities (as applicable) pursuant to this Section 9.03(d) shall not exceed $20,000,000 (the “Expense Cap”).
Appears in 2 contracts
Samples: Merger Agreement (Emanuel Ariel), Merger Agreement (Endeavor Group Holdings, Inc.)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein10.3, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated hereby other Contemplated Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, except that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), the expenses incurred in connection with the printing and filing of the Proxy Registration Statement/Prospectus , and all filing and other fees paid to the SEC, in each case in connection with the Merger (including any preliminary materials relating thereto) other than the Company’s attorneys’ fees, accountants’ fees and related expenses), shall be paid by the Acquiror and the S-4 Registration Statement (including financial statements expenses incurred in connection with printing and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% mailing of the Proxy Expenses in the event the Merger is not approved Statement shall be paid by the holders of the Company's Common Stock and Preferred Stock.
(b) The If this Agreement is terminated by Acquiror pursuant to Section 10.1(b), then the Company shall pay Parent a fee to Acquiror, within ten (10) Business Days after such termination, the amount of $2 4.7 million upon (the earliest “Termination Fee”) by wire transfer of immediately available funds to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g)such account as Acquiror shall designate.
(c) The Company shall pay Parent a fee of $500,000 upon the termination of If this Agreement is terminated by Parent or the Company pursuant to Section 10.1(c) as a result of or Section 10.1(j) (or Section 10.1(e), if at the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stocktime of, or by Parent prior to, such termination pursuant to Section 10.1(b10.1(e), the Company would have been entitled to terminate this Agreement pursuant to Section 10.1(c) based on a failure or Section 10.1(j)), then Acquiror shall pay to the Company, within ten (10) Business Days after such termination, the Termination Fee by wire transfer of immediately available funds to such account as the condition in Section 7.5, or Company shall designate.
(d) If this Agreement is terminated by the Company pursuant to Section 10.1(f10.1(h) based on or by Acquiror pursuant to Section 10.1(g), then the failure Company shall pay to Acquiror, within two (2) Business Days after such termination, the Termination Fee by wire transfer of the condition set forth in Section 8.6immediately available funds to such account as Acquiror shall designate.
(e) If, if in any such event within 24 months from after the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, a bona fide Acquisition Proposal shall have been made known to senior management of the party Company or has been communicated directly to receive the fees Company’s stockholders generally or expenses was any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to the Company and (i) thereafter this Agreement is terminated by Acquiror pursuant to Section 10.1(i) and (ii) within six (6) months after such termination the Company shall enter into a definitive written agreement with any Person (other than Acquiror and its Affiliates) with respect to such Acquisition Proposal, the Company shall pay to Acquiror, within three (3) Business Days after the execution of such definitive agreement, the Termination Fee by wire transfer of immediately available funds to such account as Acquiror shall designate; provided, however, that for purposes of this paragraph, Acquisition Proposal has the meaning ascribed thereto in Section 12.1(k), except that references in that Section to “15%” shall be replaced by “50%.”
(f) All payments made pursuant to this Section 10.3 shall constitute liquidated damages and except as provided in Section 10.2 in the case of fraud or willful and material breach of the Agreement, the receipt thereof shall be the sole and exclusive remedy of the receiving party against the party making such payment, its obligations under Affiliates and their respective directors, officers and stockholders for any claims arising out of or relating in any way to this AgreementAgreement or the transactions contemplated herein. Further, the Company shall not be required to pay the Termination Fee on more than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (Guaranty Federal Bancshares Inc), Merger Agreement (QCR Holdings Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all fees and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated hereby Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay pay, or cause to be paid, to Parent a fee of equal to $2 million upon 4,825,000 (the earliest to occur of any of the following events:
“Termination Fee”) if: (i1)(x) the termination of if this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement is terminated by Parent or the Company pursuant to Section 10.1(c8.01(b)(iii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock (or Preferred Stock, or by Parent if this Agreement is terminable pursuant to Section 10.1(b8.01(b)(iii) based on a failure of the condition in Section 7.5, or by and the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of terminates this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(bfor another reason), (cy) or 11.1(d) shall be paid within one business day at any time after the first date hereof an Acquisition Proposal shall have been publicly announced or otherwise communicated to occur the board of directors of the events described in Sections 11.1(b), Company and (cz) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt 12 months of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to receive an Acquisition Proposal or similar transaction, or any such transaction is consummated; (2) this Agreement is terminated by the fees Company pursuant to Section 8.01(c)(i); or (3) this Agreement is terminated by Parent pursuant to Section 8.01(d)(ii).
(c) Any Termination Fee shall be paid by wire transfer in immediately available funds to an account designated by Parent and: (1) if paid pursuant to Section 8.03(b)(1), within two Business Days following termination of this Agreement and the Company’s entering into a definitive agreement with a third party with respect to an Acquisition Proposal or similar transaction, or the consummation of any such transaction; (2) if paid pursuant to Section 8.03(b)(2), concurrently with and as a condition to the effectiveness of such termination; or (3) if paid pursuant to Section 8.03(b)(3), within five Business Days following termination of this Agreement by Parent.
(d) In the event that this Agreement is terminated pursuant to Section 8.01(b)(iii) (or if this Agreement is terminable pursuant to Section 8.01(b)(iii) and the Company terminates this Agreement for another reason) under circumstances in which no Termination Fee is then payable, then the Company shall promptly, but in no event later than five Business Days after being notified of such by Parent, pay all of the reasonable, documented out-of-pocket expenses was incurred by Parent and Purchaser in material breach of its obligations under connection with this Agreement and the Transactions contemplated by this Agreement, up to a maximum of Seven Hundred Fifty Thousand Dollars ($750,000), by wire transfer in immediately available funds to an account designated by Parent.
Appears in 2 contracts
Samples: Merger Agreement (Crane & Co Inc), Merger Agreement (American Bank Note Holographics Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated; provided, provided however, that Parent the Company and the Buyer shall pay 100% share equally (i) the filing fee of the Buyer's pre-merger notification report under the HSR Act and (ii) all fees and expenses, other than attorneys accountants' and accountants fees (as to which each party shall bear its own expenses)attorneys' fees, incurred in connection with respect to the printing printing, filing and filing mailing of the Joint Proxy Statement/Prospectus (including any related preliminary materials relating theretomaterials) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockthereto.
(bi) The Company shall pay Parent a fee of the Buyer up to $2 1.5 million upon the earliest to occur of any as reimbursement for expenses of the following events:
Buyer actually incurred relating to the transactions contemplated by this Agreement prior to termination (i) including, but not limited to, fees and expenses of the Buyer's counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors), upon the termination of this Agreement by Parent Agreement:
(A) pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a8.1(e); or
(iiiB) pursuant to Section 8.1(b) (without the termination Company Stockholders Meeting having occurred) if at any time after the date of this Agreement by the Company or Parent and before such termination an Acquisition Proposal shall have been publicly announced and remain outstanding.
(ii) The expenses payable pursuant to Section 10.1(g8.3(b)(i) shall be paid within 10 business days after demand therefor following the occurrence of the termination event giving rise to the payment obligation described in this Section 8.3(b).
(c) The Company shall pay Parent the Buyer a termination fee of $500,000 23.5 million if:
(i) this Agreement is terminated pursuant to Section 8.1(b) (without the Company Stockholders Meeting having occurred) or 8.1(e) if at any time after the date of this Agreement and before such termination an Acquisition Proposal shall have been publicly announced and remains outstanding and within twelve months of such termination the Company enters into any definitive agreement with respect to an Acquisition Proposal or an Acquisition Proposal relating to the Company is consummated (provided that for purposes of this Section 8.3(c)(i), all references to "20%" in the definition of "Acquisition Proposal" shall be deemed to be references to "25%"); or
(ii) this Agreement is terminated pursuant to Section 8.1(d), 8.1(g) or 8.1(i); or
(iii) this Agreement is terminated pursuant to Section 8.1(j) (x) resulting from a failure to satisfy the condition set forth in Section 7.2(a) based upon a breach of a representation or warranty by the Company, which representation or warranty was known by the Company to be false when made, or (y) resulting from a failure to satisfy the condition set forth in Section 7.2(b) based upon a material and knowing breach by the Company of its obligations under this Agreement required to be performed by it on or prior to the Closing Date; provided, however, that if a termination fee is payable by the Company pursuant to Section 8.3(c)(i), then the Company may reduce the amount to be paid by it pursuant to this Section 8.3(c) by the amount of any expense reimbursement previously paid by the Company to the Buyer pursuant to Section 8.3(b)(i)(A) or (B).
(d) Any fee due under Section 8.3(c) shall be paid by the Company by wire transfer of same-day funds:
(i) in the case of Section 8.3(c)(i), on the earlier to occur of the date on which the Company (A) enters into the definitive agreement or (B) consummates the Acquisition Proposal referred to therein;
(ii) in the case of Section 8.3(c)(ii) (other than as a result of a termination pursuant to Section 8.1(i)) or Section 8.3(c)(iii), within one business day after the date of termination of this Agreement; and
(iii) in the case of Section 8.3(c)(ii), in the event of a termination pursuant to Section 8.1(i), concurrently with such termination.
(e) The Buyer shall pay the Company up to $1.5 million as reimbursement for expenses of the Company actually incurred relating to the transactions contemplated by this Agreement prior to termination (including, but not limited to, fees and expenses of the Company's counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors), upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c8.1(f). The expenses payable pursuant to this Section 8.3(e) as a result shall be paid within 10 business days after demand therefor following the occurrence of the failure termination event giving rise to receive the requisite approval payment obligation described in this Section 8.3(e).
(f) The Buyer shall pay the Company a termination fee of $23.5 million upon the Company's outstanding Common Stock or Preferred Stock, or by Parent termination of this Agreement:
(i) pursuant to Section 10.1(b8.1(k) based on (x) resulting from a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of satisfy the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f7.3(a) based upon a breach of a representation or warranty by the Buyer that was known by the Buyer to be false when made, or (y) resulting from a failure of to satisfy the conditions condition set forth in Sections 8.1 through 8.4Section 7.3(b) based upon a material and knowing breach by the Buyer of its obligations under this Agreement required to be performed by it on or prior to the Closing Date; or
(ii) pursuant to Section 8.1(h).
(eg) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(dAny fee due under Section 8.3(f) shall be paid by the Buyer by wire transfer of same-day funds within one business day after the first to occur date of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement.
(h) The parties acknowledge 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, the parties would not enter into this Agreement. If one party fails to receive promptly pay to the fees other any expense reimbursement or expenses was in material breach of its obligations fee due under this AgreementSection 8.3, the defaulting party shall pay the costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime rate of Fleet Bank, N.A. plus five percent per annum, compounded quarterly, from the date such expense reimbursement or fee was required to be paid.
Appears in 2 contracts
Samples: Merger Agreement (Packard Bioscience Co), Merger Agreement (Perkinelmer Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.03, 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, except that each of the Company and Parent shall will bear and pay 100% one-half of all fees the costs and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), expenses incurred in connection with the filing, printing and filing mailing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"SEC filing fees); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company Parent shall pay Parent a fee of the Company up to $2 million upon the earliest to occur of any 5,000,000 as reimbursement for expenses of the following events:
(i) Company actually incurred relating to the termination of transactions contemplated by this Agreement by Parent pursuant prior to Section 10.1(dtermination (including, but not limited to, reasonable fees and expenses of the Company’s Representatives, but excluding any discretionary fees paid to such Representatives);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) , upon the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g8.01(f).
(c) The Company shall pay Parent a fee up to $5,000,000 as reimbursement for expenses of $500,000 Parent and Merger Sub actually incurred relating to the transactions contemplated by this Agreement prior to termination (including, but not limited to, reasonable fees and expenses of Parent’s Representatives, but excluding any discretionary fees paid to such Representatives), upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer8.01(g).
(d) Parent shall pay Upon the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first earlier to occur of the events described in Sections 11.1(b(i) or all the events described in (ii) below:
(i) the termination of this Agreement pursuant to (A) Section 8.01(e) or (B) Section 8.01(h); or
(ii) if (1) after the date of this Agreement, any person has made an Acquisition Proposal that has been publicly disclosed or any person publicly announces an intention to make an Acquisition Proposal, in each case, involving the Company which has not been publicly withdrawn, (2) this Agreement is terminated pursuant to Section 8.01(d), and (c3) (A) within 12 months after the date of such termination, the Company enters into an agreement for any Acquisition Transaction and such Acquisition Transaction is thereafter consummated (whether before or after such 12 month period) or 11.1(d(B) within 12 months after the date of such termination, any Acquisition Transaction involving the Company is consummated (for the purposes of this Section 8.03(d)(ii)(3), as the case may beterm “Acquisition Transaction” shall have the meaning assigned to such term in Section 9.03, except that all references to “20%” shall be changed to “50%”); the Company shall pay to Parent a fee of $185.0 million (the “Company Termination Fee”). The Company’s payment of the Company Termination Fee pursuant to this subsection shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and any of its Subsidiaries and their respective Representatives with respect to the occurrences giving rise to such payment. Notwithstanding the foregoing sentence, nothing in this Section 8.03(d) shall relieve the Company from liability for any knowing or willful misrepresentation or inaccuracy in any of its representations or warranties contained in this Agreement or any knowing or willful breach of any of its covenants or agreements contained in this Agreement.
(e) The expenses and fees, if applicable, payable pursuant to Section 11.1(aSections 8.03(b), 8.03(c), 8.03(d)(i)(A) or 8.03(d)(ii) shall be paid within five business days one Business Day after receipt the first to occur of written documentation all of the amount of expenses so payable; providedevents described in Sections 8.03(b), however8.03(c), that in no event 8.03(d)(i)(A) or 8.03(d)(ii), respectively. The fees, if applicable, payable pursuant to Section 8.03(d)(i)(B) shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to paid concurrently with the termination of this Agreement. To the extent any expenses and fees shall become payable to a party hereunder, such expense and fees shall be paid by transfer of same-day funds to an account designated by the receiving party.
(f) The parties each agree that the agreements contained in Section 8.03 are integral parts of the transaction contemplated by this Agreement and that, without these agreements, neither the Company nor Parent would enter into this Agreement. Accordingly, if a party fails to receive promptly pay the fees or expenses was in material breach of its obligations other party an amount due under this AgreementSection 8.03, such failing party shall pay the costs and expenses of such other party (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect payment, together with interest on the amount of the payment at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (Grant Prideco Inc), Merger Agreement (National Oilwell Varco Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all All fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated hereby shall be borne and timely paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) (A) an Acquisition Proposal is made directly to the termination of Company’s stockholders or otherwise publicly disclosed (and shall not have been withdrawn at least two (2) Business Days prior to the Company Stockholders Meeting), and (B) this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement is thereafter terminated by the Company or Parent pursuant to Section 10.1(g7.1(b)(ii) and (C) concurrently with or within twelve (12) months after the date of any such termination of this Agreement referred to in clause (B).
, (cx) The the Company shall pay Parent or any of its Subsidiaries enters into a fee definitive agreement providing for the consummation of $500,000 upon an Acquisition Proposal, (y) the Company Board or any committee thereof recommends that Company stockholders vote in favor of or tender into an Acquisition Proposal that (either within twelve (12) months after the termination of this Agreement or afterwards) is subsequently consummated or (z) any Acquisition Proposal is consummated, the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Company pursuant to Section 10.1(c) as a result Termination Fee concurrently with the earlier of the failure entry into such definitive agreement with respect to, or consummation of, such Acquisition Proposal;
(ii) (A) an Acquisition Proposal is made directly to receive the requisite approval of the Company's outstanding Common Stock ’s stockholders or Preferred Stock, otherwise publicly disclosed or by Parent pursuant otherwise communicated to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees Company Board or expenses to the other, if, immediately any committee thereof (and shall not have been withdrawn prior to the termination of this Agreement), and (B) this Agreement is thereafter terminated by the Company or Parent pursuant to Section 7.1(b)(iii), and (C) concurrently with or within twelve (12) months after the date of any such termination of this Agreement referred to in clause (B), (x) the Company or any of its Subsidiaries enters into a definitive agreement providing for the consummation of an Acquisition Proposal, (y) the Company Board recommends that Company stockholders vote in favor of or tender into an Acquisition Proposal that (either within twelve (12) months after the termination of this Agreement or afterwards) is subsequently consummated or (z) any Acquisition Proposal is consummated, the party Company shall pay to receive Parent or its designee by wire transfer of same day funds to the fees account or expenses was accounts designated by Parent or such designee the Termination Fee concurrently with the earlier of the entry into such definitive agreement with respect to, or consummation of, such Acquisition Proposal;
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Termination Fee within two (2) Business Days after such termination; and
(iv) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Termination Fee prior to or concurrently with, and as a condition to, such termination; it being understood that in material breach of its obligations under this Agreementno event shall the Company be required to pay the Termination Fee on more than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (Borgwarner Inc), Merger Agreement (Remy International, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinin this Agreement, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated hereby other Contemplated Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided. Further, howeverexcept as explicitly provided for in this Section 11.3, that Parent no payment made pursuant to this Section 11.3 shall pay 100% preclude the party receiving such payment from asserting or enforcing any claim against the party making such payment, or any other Person, arising out of all fees and expenses, other than attorneys and accountants fees (as or relating in any way to which each party shall bear its own expenses), incurred in connection with this Agreement or the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stocktransactions contemplated herein.
(b) The Subject to Section 11.3(e), if this Agreement is terminated by Acquiror pursuant to Section 11.1(b), then the Company shall pay Parent a fee to Acquiror, within ten (10) Business Days after such termination, the amount of Two Million Five Hundred Thousand Dollars ($2 million upon the earliest 2,500,000) by wire transfer of immediately available funds to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g)such account as Acquiror shall designate.
(c) The Company shall pay Parent a fee of $500,000 upon the termination of If this Agreement is terminated by Parent or the Company pursuant to Section 10.1(c) as a result of the failure 11.1(c), then Acquiror shall pay to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or within ten (10) Business Days after such termination, the amount of Two Million Five Hundred Thousand Dollars ($2,500,000) by Parent wire transfer of immediately available funds to such account as the Company shall designate.
(d) If this Agreement is terminated by Acquiror pursuant to Section 10.1(b11.1(g) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.611.1(i), if in any such event within 24 months from the date of this Agreement then the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay to Acquiror, within ten (10) Business Days after such termination, the Company a fee amount of Four Million Five Hundred Thousand Dollars ($2 million upon termination 4,500,000) by wire transfer of this Agreement by the Company pursuant immediately available funds to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4such account as Acquiror shall designate.
(e) The fees payable pursuant to Sections 11.1(b), If: (ci) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable this Agreement is terminated by Acquiror pursuant to Section 11.1(a11.1(b); and (ii) within six (6) months after such termination the Company shall be paid enter into a definitive written agreement with any Person (other than Acquiror and its Affiliates) with respect to an Acquisition Transaction, the Company shall pay to Acquiror, within five business days ten (10) Business Days after receipt the execution of written documentation of such definitive agreement, the amount of expenses so payableFour Million Five Hundred Thousand Dollars ($4,500,000) by wire transfer of immediately available funds to such account as Acquiror shall designate; provided, however, that for purposes of this paragraph, “Acquisition Transaction” has the meaning ascribed thereto in no event Section 1.1, except that references in that Section to “20%” shall Parent be replaced by “50%”; provided, further, that the amount due to Acquiror from the Company pursuant to this Section 11.3(e) shall be reduced by any amount previously paid by the Company to Acquiror pursuant to Section 11.3(b).
(f) Except as otherwise provided in this Section 11.3, all payments made pursuant to Sections 11.3(b), (c), (d) and (e) shall constitute liquidated damages and the receipt thereof shall be the sole and exclusive remedy of the receiving party against the party making such payment, its Affiliates and their respective directors, officers and shareholders for any claims arising out of or relating in any way to this Agreement or the Companytransactions contemplated herein; provided, as the case may behowever, be required to pay such fees that nothing herein shall preclude or expenses to the other, if, immediately prior to the termination of this Agreement, bar the party to receive receiving such payment from asserting or enforcing any such claim against any Person other than the fees or expenses was in material breach of its obligations under this Agreementparty making such payment, such party’s Affiliates and their respective officers, directors, employees and shareholders.
Appears in 2 contracts
Samples: Merger Agreement (Midland States Bancorp, Inc.), Merger Agreement (Midland States Bancorp, Inc.)
Fees and Expenses. (a) The Company shall pay to Parent by wire transfer $15,000,000 (the "Company Termination Fee") if:
(i) the Company terminates this Agreement pursuant to Section 8.1(e), in which case, the Company Termination Fee must be paid simultaneously with such termination;
(ii) Parent terminates this Agreement pursuant to Section 8.1(d), in which case, the Company Termination Fee must be paid no later than one business day after the termination of this Agreement; or
(iii) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iii), (B) the approval of this Agreement by the stockholders of the Company shall not have been obtained by reason of the failure to obtain the required vote at a meeting of stockholders duly convened thereon as contemplated by this Agreement (a "Company Negative Vote"), (C) at the time of such Company Negative Vote there shall be pending a Takeover Proposal, and (D) within one year after such termination, the Company consummates either (1) a merger, consolidation or other business combination between the Company and any other person (other than Parent, Sub or an affiliate of Parent) or (2) the sale of 30% or more (in voting power) of the voting securities of the Company or of 30% or more (in fair market value) of the assets of the Company and its Subsidiaries, on a consolidated basis, in which case, the Company Termination Fee must be paid simultaneously with the closing of the event described in clause (1) or (2) of this subparagraph.
(b) Parent shall pay to the Company by wire transfer $5,000,000 (the "Parent Termination Fee") if this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(b)(i) and at the time of such termination (A) the condition set forth in Section 7.2(c) to the obligations of Parent and Sub shall not have been satisfied or waived and (B) each of the other conditions set forth in Article VII to the obligations of the Company, Parent and Sub shall have been satisfied or waived and Parent and Sub shall not have then been entitled to terminate this Agreement pursuant to any of the provisions of Section 8.1 (other than Section 8.1(b)(i)). If payable, the Parent Termination Fee shall be paid no later than one business day after the termination of this Agreement.
(c) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinabove, all fees and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all filing fees and expenses, other than attorneys and accountants fees (as related to which each party shall bear its own expenses), incurred compliance with the HSR Act in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) transactions contemplated hereby shall be borne equally by Parent and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Zilog Inc), Merger Agreement (Zilog Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.03, all expenses (including fees and expenses payable to Representatives and hedging counterparties) incurred by any party to this Agreement or its Affiliates on its behalf in connection with this Agreement and or the transactions contemplated hereby by this Agreement (“Expenses”) shall be paid by the party incurring such expenses, whether or not the Merger is Mergers are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company agrees that if this Agreement shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsbe terminated:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c9.01(b) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, Section 9.01(f) or by Parent pursuant to Section 10.1(b9.01(d) based (however, only in the event of a termination pursuant to Section 9.01(d) that relates to a breach by the Company Parties of their obligations under Section 7.02 or Section 7.04) and (A) an Acquisition Proposal shall have been made to the Company Parties or publicly announced prior to such Termination Date (and with respect to termination pursuant to Section 9.01(b), such Acquisition Proposal was not withdrawn prior to the Termination Date), and (B) concurrently with such termination or within twelve (12) months following the Termination Date, the Company enters into a Contract with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated (in each case whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in the foregoing clause (A)), then the Company shall pay to Parent, if and when such Contract is entered into or consummation of such Acquisition Proposal occurs, as applicable, the Company Termination Fee (and for purposes of this Section 9.03(b)(i), “50%” shall be substituted for “20%” in the definition of Acquisition Proposal); or
(ii) by Parent pursuant to Section 9.01(g), or the Company pursuant to Section 9.01(h), then the Company shall pay to Parent the Company Termination Fee on the Termination Date, and with respect to a failure termination pursuant to Section 9.01(h), such payment shall be made before or concurrently with such termination and shall be a condition to the effectiveness of the condition such termination.
(c) Except as set forth in Section 7.5, or 9.03(b)(ii) for termination by the Company pursuant to Section 10.1(f9.01(h), the Company Termination Fee shall be paid by the Company as directed by Parent in writing in immediately available funds within three (3) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from Business Days after the date of this Agreement the Company enters into an agreement event giving rise to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerthe obligation to make such payment.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent For purposes of this Agreement, or pursuant “Company Termination Fee” means an amount equal to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4$200,000,000.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Eop Operating LTD Partnership), Merger Agreement (Eop Operating LTD Partnership)
Fees and Expenses. (a) Except as set forth expressly provided otherwise in subsection (b) of this Section 11.1 or as otherwise provided hereinAgreement, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated hereby by this Agreement shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, it being understood and agreed that Parent shall pay 100% be solely responsible for payment of any and all filing fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with payable under the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockHSR Act.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following events:
(i) the termination of event that this Agreement is terminated (1) by Parent pursuant to Section 10.1(d7.01(f) (Change of Recommendation) or (2) by the Company pursuant to Section 7.01(e) (Superior Proposal);
, then the Company shall pay, or cause to be paid, to Parent the Company Termination Fee (i) on or before the third Business Day following the date of such termination (in the case of a termination other than pursuant to Section 7.01(e) (Superior Proposal)) or (ii) prior to or concurrently with such termination (in the case of termination of this Agreement by Parent the Company pursuant to Section 10.1(a7.01(e) (Superior Proposal); or), by wire transfer of immediately available U.S. dollars to the applicable account or accounts designated in writing to the Company by Parent.
(iiic) In the termination of event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g7.01(b)(i) (End Date).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement , by Parent or the Company or Parent pursuant to Section 10.1(c7.01(b)(iii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, (Company Shareholder Approval) or by Parent pursuant to Section 10.1(b7.01(c) based on a failure of the condition in Section 7.5(Company Breach), or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6and, if in any such event within 24 months from case, (i) at any time after the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, an Acquisition Proposal shall have been made to the party Company or any of its Subsidiaries or its shareholders or shall have been publicly announced and such Acquisition Proposal shall not have been publicly withdrawn on a bona fide basis without qualification (1) at least thirty (30) Business Days prior to a termination pursuant to Section 7.01(b)(i) (End Date), or (2) at least ten (10) Business Days prior to the Shareholders Meeting in connection with a termination pursuant to Section 7.01(b)(iii) (Company Shareholder Approval) and (ii) within twelve (12) months after such termination, the Company enters into a definitive agreement with respect to an Acquisition Proposal that is thereafter consummated, or shall have consummated or shall have approved or recommended to the Company’s shareholders or otherwise not opposed, an Acquisition Proposal that is thereafter consummated, then the Company shall pay, or cause to be paid, to Parent the Company Termination Fee prior to or concurrently with entry into, or if not pursuant to an agreement, recommendation or consummation of, such Acquisition Proposal by wire transfer of immediately available U.S. dollars to the applicable account or accounts designated in writing to the Company by Parent. For purposes of only subclause (ii) of this Section 7.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(g)(i), except that the references to “20%” shall be deemed to be references to “50%”.
(d) Each of the Parties acknowledges and agrees that the agreements contained in this Section 7.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither the Company nor Parent or Merger Sub would enter into this Agreement. Accordingly, if the Company fails to promptly pay the Company Termination Fee in accordance with Section 7.03(b) or Section 7.03(c) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Company Termination Fee (or any portion thereof), then the Company shall pay, or cause to be paid, to Parent its costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of the Company Termination Fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made through the date of payment plus two percent (2%). The Company Termination Fee is non-refundable and shall not be set off by or credited against any other payment.
(e) Upon termination of this Agreement in accordance with its terms, Parent’s right, if any, to receive the fees Company Termination Fee pursuant to Section 7.03(b) or expenses was Section 7.03(c), and the amounts described in Section 7.03(d), shall be the sole and exclusive remedy of Parent and Merger Sub and their respective Affiliates against the Company and its former, current or future shareholders, directors, officers, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Merger or the other transactions contemplated by this Agreement to be consummated, and upon payment of such Company Termination Fee and any applicable amount described in Section 7.03(d), none of the Company or any of its former, current or future shareholders, directors, officers, Affiliates, agents or other Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Merger or the other transactions contemplated by this Agreement; provided that, nothing in this Section 7.03(e) shall relieve any Party from any liabilities or damages resulting from any willful and material breach of its obligations under this Agreement prior to or in connection with such termination. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Company be required to pay the Company Termination Fee more than once.
Appears in 2 contracts
Samples: Merger Agreement (Magicjack Vocaltec LTD), Merger Agreement (B. Riley Financial, Inc.)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Expenses shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is Mergers are consummated; provided, however, provided that Parent shall pay 100% of all the Parties will share equally the Form S-4 filing fees and expenses, other than attorneys and accountants fees (as may be required to which each party shall bear its own expenses), incurred in connection with consummate the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved transactions contemplated by the holders of the Company's Common Stock and Preferred Stockthis Agreement.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that this Agreement is terminated:
(i) (A)(x) by REIT II pursuant to Section 9.1(d)(i) (REIT III Terminating Breach), and after the date hereof and prior to the breach or failure to perform giving rise to such right of termination, a bona fide Competing Proposal (with, for all purposes of this Section 9.3(b)(i), all percentages included in the definition of “Competing Proposal” increased to 50%) has been publicly announced, disclosed or otherwise communicated to the REIT III Board or any Person shall have publicly announced an intention (whether or not conditional) to make such a Competing Proposal or (y) by REIT II or REIT III pursuant to Section 9.1(b)(i) (Outside Date) (and at the time of such termination REIT III would not have been entitled to terminate this Agreement pursuant to Section 9.1(c)(iii) (REIT II Failure to Close)) or Section 9.1(b)(iii) (Failure to Obtain REIT III Stockholder Approval) and after the date of this Agreement by Parent pursuant but prior to Section 10.1(d)the REIT III Stockholders Meeting, a Competing Proposal with respect to REIT III has been made to REIT III or publicly announced, disclosed or otherwise communicated to REIT III’s stockholders (and not withdrawn) and (B) within 12 months after the date of such termination, a transaction in respect of a Competing Proposal with respect to REIT III is consummated or REIT III enters into a definitive agreement in respect of a Competing Proposal with respect to REIT III that is later consummated, REIT III shall pay to REIT II an amount equal to the Termination Payment;
(ii) the termination of this Agreement (A) by Parent REIT III pursuant to Section 10.1(a9.1(c)(iii) (Failure to Close), then REIT II shall pay to REIT III an amount equal to the Expense Reimbursement Payment, or (B) by REIT II pursuant to Section 9.1(d)(iii) (Failure to Close), then REIT III shall pay to REIT II an amount equal to the Expense Reimbursement Payment;
(iii) by REIT III pursuant to Section 9.1(c)(ii) (Superior Proposal), then REIT III shall pay to REIT II an amount equal to the Termination Payment; or
(iiiiv) the termination of this Agreement by the Company or Parent REIT II pursuant to Section 10.1(g9.1(d)(ii) (Adverse Recommendation Change/No-Shop Violation), then REIT III shall pay to REIT II an amount equal to the Termination Payment.
(c) The Company REIT II agrees that in no event shall REIT III be required to pay Parent a fee Termination Payment on more than one occasion. Payment of $500,000 upon a Termination Payment shall be made by wire transfer of same day funds to the termination account or accounts designated by REIT II (i) prior to or concurrently at the time of this Agreement consummation of any transaction contemplated by Parent or an Competing Proposal, in the Company case of a Termination Payment payable pursuant to Section 10.1(c9.3(b)(i), (ii) as concurrently with termination in the case of a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent Termination Payment payable pursuant to Section 10.1(b9.3(b)(iii), and (iii) based on as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of a failure of the condition in Section 7.5, or by the Company Termination Payment payable pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer9.3(b)(iv).
(d) Parent shall pay the Company a fee of $2 million upon termination of Notwithstanding anything in this Agreement by to the Company pursuant to Section 10.1(e) after contrary, in the event that a Breach by Parent Termination Payment becomes payable, then such payment shall be the REIT II Parties’ sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against REIT III and its Subsidiaries and each of their respective Representatives in respect of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth any agreement executed in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may beconnection herewith, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the failure of the Mergers to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise.
(e) REIT III acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, REIT II would not enter into this Agreement. In the event that REIT III shall fail to pay the Termination Payment when due, REIT III shall reimburse REIT II for all reasonable costs and expenses actually incurred or accrued by REIT II (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.3. Further, if REIT III fails to timely pay any amount due pursuant to this Section 9.3, and, in order to obtain the payment, REIT II commences a suit that results in a judgment against REIT III for the payment set forth in this Section 9.3, REIT III shall pay to REIT II its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on such amount at a rate per annum equal to the prime rate as published in the Wall Street Journal in effect on the date such payment was required to be made through the date of payment.
(f) If REIT III becomes obligated to pay a Termination Payment under this Section 9.3, then, if requested by REIT II, REIT III shall deposit into escrow an amount in cash equal to the Termination Payment with an escrow agent reasonably selected by REIT II, after reasonable consultation with REIT III, and pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 9.3 and otherwise reasonably acceptable to each of the Parties and the escrow agent. The payment or deposit into escrow of the Termination Payment pursuant to this Section 9.3(f) shall be made by REIT III promptly after receipt of notice from REIT II that the Escrow Agreement has been executed by the parties thereto. The Escrow Agreement shall provide that the Termination Payment in escrow or the applicable portion thereof shall be released to REIT II on an annual basis based upon the delivery by REIT II to the escrow agent of any one (or a combination) of the following:
(i) a letter from REIT II’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to REIT II without causing REIT II to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of REIT II determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(H) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to REIT II such maximum amount stated in the accountant’s letter;
(ii) a letter from REIT II’s counsel indicating that REIT II received a private letter ruling from the IRS holding that the receipt by REIT II of the Termination Payment would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to REIT II the remainder of the Termination Payment; or
(iii) a letter from REIT II’s counsel indicating that REIT II has received a tax opinion from REIT II’s outside counsel or accountant, respectively, to the effect that the receipt by REIT II of the Termination Payment should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to REIT II the remainder of the Termination Payment. REIT III agrees to cooperate in good faith to amend this Section 9.3(f) at the reasonable request of REIT II in order to (A) maximize the portion of the Termination Payment that may be distributed to REIT II hereunder without causing REIT II to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve REIT II’s chances of securing the favorable private letter ruling from the IRS described in this Section 9.3(f) or (C) assist REIT II in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 9.3(f). The Escrow Agreement shall provide that REIT II shall bear all costs and expenses under the Escrow Agreement and that any portion of the Termination Payment held in escrow for ten years shall be released by the escrow agent to REIT III. REIT III shall not be a party to receive the fees Escrow Agreement and shall not bear any liability, cost or expenses was expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on REIT III in material breach of its obligations under this Agreementconnection therewith). REIT II shall fully indemnify REIT III and hold REIT III harmless from and against any such liability, cost or expense.
Appears in 2 contracts
Samples: Merger Agreement (Resource Apartment REIT III, Inc.), Merger Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) Section 8.3(b), and except with respect to costs and expenses of this Section 11.1 or as otherwise provided hereinprinting and mailing the Proxy Statement and all filing and other fees paid to the SEC in connection with the Merger, which shall be borne equally by GBC and First Charter, all fees and expenses incurred in connection with the Merger, this Agreement Agreement, and the transactions contemplated hereby by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.
(b) GBC shall promptly pay to First Charter a termination fee in the amount of $3,570,000, plus all of the reasonable actual expenses incurred by First Charter in connection with the proposed transaction, in immediately available federal funds if:
(i) (A) this Agreement is terminated by First Charter pursuant to Section 8.1(d), 8.1(e) or 8.1(f); and (B)(1) prior to such termination, an Alternative Transaction with respect to GBC was commenced, publicly proposed or publicly disclosed (or an Alternative Proposal is received); and (2) within 12 months after such termination, GBC shall have entered into a definitive written agreement relating to an Alternative Transaction or any Alternative Transaction shall have been consummated; or
(ii) after receiving an Alternative Proposal, GBC’s Board or Directors (the “GBC Board”) does not take action to convene the GBC Shareholders Meeting and/or recommend that GBC shareholders adopt this Agreement; and within 12 months after such receipt, GBC shall have entered into a definitive written agreement relating to an Alternative Transaction or any Alternative Transaction shall have been consummated; provided, however, that Parent First Charter shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as not be entitled to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating theretoa termination fee pursuant to this Section 8.3(b) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsif:
(iA) the termination of this Agreement by Parent shall have been terminated pursuant to Section 10.1(d);
(ii8.1(a) the termination of this Agreement by Parent pursuant to or Section 10.1(a8.1(b); or
(iiiB) the termination of GBC shall have terminated this Agreement by the Company or Parent pursuant to Section 10.1(g8.1(d) or Section 8.1(g).
(iii) Upon payment of the fee described in this Section 8.3(b), GBC shall have no further liability to First Charter at law or in equity with respect to such termination, or with respect to GBC Board’s failure to take action to convene the GBC Shareholders Meeting and/or recommend that GBC shareholders adopt this Agreement.
(c) The Company shall pay Parent a fee of $500,000 upon GBC acknowledges that the termination of agreements contained in this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result 8.3 are an integral part of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or transactions contemplated by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or and that, without these agreements, First Charter would not enter into this Agreement. Accordingly, if GBC fails to pay timely any amount due pursuant to this Section 10.1(f) based upon 8.3 and, in order to obtain such payment, First Charter commences a failure of suit that results in a judgment against GBC for the conditions set forth in Sections 8.1 through 8.4.
(e) The fees amount payable to First Charter pursuant to Sections 11.1(b)this Section 8.3, GBC shall pay to First Charter its reasonable, out-of-pocket costs and expenses (cincluding attorneys’ fees and expenses) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b)connection with such suit, (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of together with interest on the amount of expenses so payable; provided, however, that in no event shall Parent or payable at the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementapplicable Federal Funds rate.
Appears in 2 contracts
Samples: Merger Agreement (First Charter Corp /Nc/), Merger Agreement (GBC Bancorp Inc)
Fees and Expenses. (a) Except as otherwise provided in this Section 5.5 and except with respect to claims for damages incurred as a result of the breach of this Agreement (it being understood that such claims by Parent, USF&G or their affiliates shall be precluded under Section 5.5(d) by the payment of the amount set forth in subsection (bSection 5.5(b) of this when Section 11.1 or as otherwise provided herein5.5(b) is applicable), all fees costs 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockexpense.
(b) The Company shall agrees to pay Parent a fee of in immediately available funds equal to $2 million upon the earliest to occur of any of the following events:
7,500,000 if (i) the termination of this Agreement by Parent is terminated pursuant to Section 10.1(d);
7.1(d) hereof and any person or group of persons shall, within 90 days after the date of such termination, consummate an Acquisition Proposal or enter into an agreement with respect to an Acquisition Proposal or (ii) the termination of this Agreement by Parent is terminated pursuant to Section 10.1(a); or
(iii7.1(e) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a hereof. Such fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first of any termination of this Agreement pursuant to occur Section 7.1(e) hereof or within one business day of the events described consummation of an Acquisition Proposal or the entry into of any agreement with respect to an Acquisition Proposal, in Sections 11.1(b), either case during the 90-day period after any termination of this Agreement pursuant to Section 7.1(d) hereof.
(c) or 11.1(d), as Any amounts due under this Section 5.5 that are not paid when due shall bear interest at the case may be, rate of 9% per annum from the date due through and including the expenses payable date paid.
(d) Upon the payment of any fee pursuant to Section 11.1(a5.5(b) above (regardless of whether a transaction pursuant to an Acquisition Proposal is consummated), such fee shall be the exclusive remedy of Parent, USF&G and their affiliates relating to this Agreement or the transactions contemplated thereunder, and upon payment of any such fee, Parent, USF&G and their affiliates shall have no rights, in tort, contract or otherwise, arising under or relating to this Agreement or the transactions contemplated thereunder, except for rights under the second sentence of Section 5.4 hereof.
(e) The fee set forth in Section 5.5(b) shall be paid within five business days after receipt of written documentation of payable solely under the amount of expenses so payable; provided, however, that circumstances set forth in no event Section 5.5(b) and shall Parent or the Company, as the case may be, not be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations payable under this Agreementany other circumstances.
Appears in 2 contracts
Samples: Merger Agreement (Titan Holdings Inc), Merger Agreement (Usf&g Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, 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 Parent and the Company shall pay 100% of share equally all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses)attorneys' fees, incurred in connection with relation to the printing and filing of the Proxy Statement/Prospectus Statement (including any preliminary materials relating related thereto) and ), the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, and all filing fees payable in connection with filings made under the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred StockHSR Act.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(d8.1(e) (other than 8.1(e)(ii);
(ii) the termination of this Agreement by Parent pursuant to or Section 10.1(a8.1(f); or
(iiiii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company terminates this Agreement pursuant to Section 10.1(c8.1(d) as a result hereof because of the failure to receive obtain the requisite required approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by from the Company pursuant to Section 10.1(fstockholders and either (x) based on at the failure time of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) termination or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the Company Stockholders' Meeting there shall have been an Acquisition Proposal (whether or not such Acquisition Proposal or any inquiry, announcement or agreement relating to such Acquisition Proposal shall have been rejected or shall have been withdrawn prior to the time of such termination or of the Company Stockholders' Meeting) or (y) the Company shall have entered into a binding agreement in connection with an Acquisition Proposal within twelve (12) months following termination of this Agreement, the party Company shall pay to receive Parent, simultaneously with such termination of this Agreement referred to in clauses (i) or (ii)(x) of this Section 8.3(b) or at the fees time a binding agreement is entered into in connection with an Acquisition Proposal as contemplated in clause (ii)(y) of this Section 8.3(b), a fee in cash equal to $12,000,000, plus the amount of Parent Stipulated Expenses paid to Parent pursuant to Section 8.3(c) (the "Termination Fee"), which amount shall be payable by wire transfer of immediately available funds not later than two business days after the date of such termination.
(c) If this Agreement is terminated pursuant to Sections 8.1(e), 8.1(f) or expenses was 8.1(g) and provided that (i) Parent is not then in breach of its representations and warranties under this Agreement such that Section 6.3(a) of this Agreement would not be satisfied or (ii) Parent is not otherwise in material breach of its obligations under this Agreement such that Section 6.3(b) will not be satisfied, then the Company shall reimburse Parent, within three (3) business days of Parent's request therefor, for all Parent Stipulated Expenses. As used in this Agreement, the term "Parent Stipulated Expenses" shall mean those reasonable and documented out-of-pocket fees and expenses actually incurred by Parent in connection with this Agreement, the Stockholder Agreement and the transactions contemplated hereby and thereby which do not exceed $2,500,000 in the aggregate.
Appears in 2 contracts
Samples: Merger Agreement (Moviefone Inc), Merger Agreement (America Online Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein7.3, all fees and expenses incurred in connection with this Agreement Agreement, the Merger, the Subsequent Merger and the transactions contemplated hereby other Transactions shall be borne and timely paid by the party incurring such fees or expenses, whether or not the Merger or the Subsequent Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) (A) prior to the termination receipt of the Company Stockholder Approval, a Company Competing Proposal shall have been publicly disclosed or shall have become publicly known and not withdrawn and (B) this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement is thereafter terminated by Parent or the Company pursuant to Section 10.1(c7.1(b)(ii), Section 7.1(b)(iii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred StockSection 7.1(b)(iv), or by Parent pursuant to Section 10.1(b7.1(c)(i), then (1) based on a failure the Company shall pay to Parent by wire transfer of same day funds to the account or accounts designated by Parent or its designee the Parent Expenses within two (2) Business Days after receipt from Parent of documentation supporting such Parent Expenses and (2) if, concurrently with or within 12 months after the date of any such termination, (x) any of the condition Acquired Companies enters into a definitive agreement with respect to any Company Competing Proposal or (y) any Company Competing Proposal is consummated, (which Company Competing Proposal may be the same as or different from the Company Competing Proposal referred to in the immediately preceding clause (A)), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Termination Fee concurrently with the consummation of such Company Competing Proposal;
(ii) (A) prior to the receipt of the Parent Stockholder Approval, a Parent Competing Proposal shall have been publicly disclosed or shall have become publicly known and not withdrawn and (B) this Agreement is thereafter terminated by Parent or the Company pursuant to Section 7.57.1(b)(ii), Section 7.1(b)(iii) or Section 7.1(b)(iv), or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.67.1(d)(i), if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party then (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d1) Parent shall pay to the Company by wire transfer of same day funds to the account or accounts designated by the Company or its designee the Company Expenses within two (2) Business Days after receipt from the Company of documentation supporting such Company Expenses and (2) if, concurrently with or within 12 months after the date of any such termination, (x) any of the Parent Companies enters into a fee definitive agreement with respect to any Parent Competing Proposal or (y) any Parent Competing Proposal is consummated, (which Parent Competing Proposal may be the same as or different from the Parent Competing Proposal referred to in the immediately preceding clause (A)), Parent shall pay to the Company or its designee by wire transfer of $2 million upon termination same day funds to the account or accounts designated by the Company or such designee the Termination Fee concurrently with the consummation of such Parent Competing Proposal;
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii) or Section 7.1(c)(iii), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Termination Fee within two (2) Business Days after such termination;
(iv) this Agreement is terminated by the Company pursuant to Section 10.1(e7.1(d)(ii) or Section 7.1(d)(iii), Parent shall pay to the Company or its designee by wire transfer of same day funds to the account or accounts designated by the Company or such designee the Termination Fee within two (2) Business Days after a Breach such termination;
(v) this Agreement is terminated by Parent of this Agreement, or pursuant to Section 10.1(f) based upon 7.1(c)(iv), Parent shall pay to the Company or its designee by wire transfer of same day funds to the account or accounts designated by the Company or such designee the Termination Fee prior to, and as a failure of the conditions set forth in Sections 8.1 through 8.4.condition to, such termination;
(evi) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after this Agreement is terminated by the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable Company pursuant to Section 11.1(a7.1(d)(iv), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Termination Fee prior to, and as a condition to, such termination;
(vii) unless the Company is required to pay Parent Expenses under Section 7.3(b)(i), if this Agreement is terminated pursuant to Section 7.1(b)(ii), then the Company shall be paid pay to Parent by wire transfer of same day funds to the account or accounts designated by Parent or its designee the Parent Expenses within five business days two (2) Business Days after receipt from Parent of written documentation supporting such Parent Expenses; and
(viii) unless Parent is required to pay Company Expenses under Section 7.3(b)(ii), if this Agreement is terminated pursuant to Section 7.1(b)(iii), then Parent shall pay to the Company by wire transfer of same day funds to the amount account or accounts designated by the Company or its designee the Company Expenses within two (2) Business Days after receipt from the Company of expenses so payable; provideddocumentation supporting such Company Expenses, however, it being understood that in no event shall the Company or Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination Termination Fee on more than one occasion.
(c) For purposes of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementSection 7.3.
Appears in 2 contracts
Samples: Merger Agreement (CBOE Holdings, Inc.), Merger Agreement (Bats Global Markets, Inc.)
Fees and Expenses. (a) CEH LLC shall be entitled to receive from the Company a payment in an aggregate amount equal to $10,000,000 (the "Termination Payment") if at the time of termination of this Agreement CEH LLC is not in material breach of any of its obligations hereunder, and:
(i) the Agreement is terminated by CEH LLC pursuant to Section 12.1(b) hereof and the Company enters into an Alternative Agreement in respect of a Superior Proposal within six months following such termination,
(ii) the Agreement is terminated by CEH LLC pursuant to Sections 12.1(d)(i) or 12.1(d)(ii) hereof and the Company enters into an Alternative Agreement within nine months following such termination,
(iii) the Agreement is terminated by CEH LLC pursuant to Sections 12.1(d)(iii) or 12.1(d)(iv) hereof, or
(iv) the Agreement is terminated by the Company pursuant to Section 12.1(f) hereof. Any Termination Payment due and owing to CEH LLC (x) pursuant to Sections 12.2(a)(i), 12.2(a)(ii) or 12.2(a)(iii) hereof shall be paid upon consummation of the transaction contemplated by the Alternative Agreement, and (y) pursuant to Section 12.2(a)(iv) hereof shall be paid within five (5) Business Days after the date of termination or such later date as the Bankruptcy Court may direct (but in no event later than the earlier of the consummation of the transaction contemplated by an Alternative Agreement and the effective date of a plan of reorganization for the Company).
(b) CEH LLC shall be entitled to reimbursement by the Company for all of CEH LLC's Reimbursable Expenses up to an aggregate of $7,500,000 if CEH LLC is entitled to a Termination Payment. Any Reimbursable Expenses due and owing to CEH LLC as a result of the termination of this Agreement (x) pursuant to section 12.2(a)(i) or 12.2(a)(ii) or 12.2(a)(iii) hereof shall be paid upon the earlier of the consummation of the transaction contemplated by an Alternative Agreement and the effective date of a plan of reorganization for the Company, and (y) pursuant to section 12.2(a)(iv) hereof shall be paid within five (5) Business Days after the date of termination or such later date as the Bankruptcy Court may direct (but in no event later than the earlier of the consummation of the transaction contemplated by an Alternative Agreement and the effective date of a plan of reorganization for the Company).
(c) If this Agreement is terminated and, prior to making any payment due to CEH LLC pursuant to Section 12.2(a) or 12.2(b) hereof, and the Company commences a case under chapter 11 of the Bankruptcy Code, the Company shall file the Break-Up Payment Claim Motion within three (3) Business Days after the commencement of such chapter 11 case seeking entry of the Break-Up Payment Claim Order.
(d) The Company acknowledges and agrees that (i) the payment of the Break-Up Payment or, if applicable, the allowance of the Allowed Break-Up Payment Claim and the Company's agreement to request Administrative Claim status therefore is an integral part of the transactions contemplated by this Agreement, (ii) the Company is aware that prior to the date hereof CEH LLC and/or its unitholders have incurred approximately $5 million of actual and deferred financing fees and substantial legal and accounting fees in connection with the transactions contemplated hereby and (iii) in the absence of the Company's obligations to make this payment and agree to request such status, CEH LLC would not have entered into this Agreement and (iv) time is of the essence with respect to the payment of the Break-Up Payment.
(e) Except as set forth above in subsection (b) of Section 9.10 and this Section 11.1 or as otherwise provided herein12.2, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby other Transaction Documents shall be paid by the party incurring such expenses, whether or not the Merger Restructuring is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Aurora Foods Inc /De/), Agreement and Plan of Reorganization and Merger (Sea Coast Foods, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in In the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
that (bA) The Company shall pay Parent a fee of $2 million upon the earliest prior to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
Agreement, a Company Acquisition Proposal is publicly submitted, publicly proposed, publicly disclosed prior to, and not withdrawn prior to, the receipt of the Company Stockholder Approval, (iiB) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g8.1(e) (Outside Date) prior to the receipt of the Company Stockholder Approval or Section 8.1(f) (Failure to Obtain Company Stockholder Approval) and (C) the Company enters into a definitive agreement with respect to, or consummates, a Company Acquisition Proposal within twelve (12) months after the date this Agreement is terminated, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee upon the earliest date of when such definitive agreement is executed or such Company Acquisition Proposal is consummated. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction to “20%” shall be deemed to be to be a reference to “more than 50%.”
(b) In the event this Agreement is terminated by Parent pursuant to Section 8.1(f) (Failure to Obtain Company Stockholder Approval) or Section 8.1(g) (Company Change in Recommendation or Material Breach of Non-Solicit), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days of termination of this Agreement.
(c) The Company shall pay Parent a fee of $500,000 upon In the termination of this Agreement by event that: (i) Parent or the Company shall terminate this Agreement pursuant to Section 10.1(c8.1(e) as a result and, at the time of such termination, (x) the conditions set forth in Section 7.1(a), Section 7.1(b), Section 7.3(a) and Section 7.3(b) have been satisfied (other than, in the case of Section 7.1(b), for the failure to receive be satisfied resulting from an injunction or order entered or issued by a Governmental Entity under any Antitrust Law or the requisite approval adoption, enactment or promulgation by a Governmental Entity of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(bany Antitrust Law) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(fand (y) based on the failure of the condition set forth in Section 8.67.1(c) has not been satisfied or (ii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) as the result of an injunction or order entered or issued by a Governmental Entity under any Antitrust Law or the adoption, if enactment or promulgation by a Governmental Entity of any Antitrust Law, or (iii) the Company shall terminate this Agreement pursuant to Section 8.1(h) or Parent or the Company shall terminate this Agreement pursuant to Section 8.1(e) at a time when the Company could have terminated this Agreement pursuant to Section 8.1(b) or Section 8.1(h), then in any such event case Parent will pay to the Company the Parent Termination Fee (A) in the case of the termination by the Company, within 24 months from the date two (2) Business Days of termination of this Agreement or, (B) in the Company enters into an agreement to be acquired case of termination by any third party (including any current AMVC shareholder) or a majority Parent, contemporaneously with the termination of AMVC Common Stock is acquired by a third party in a tender offerthis Agreement.
(d) As used herein, “Company Termination Fee” means a cash amount equal to $318,000,000. As used herein, “Parent shall pay the Company Termination Fee” means a fee of cash amount equal to $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4600,000,000.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Albertsons Companies, Inc.), Merger Agreement (Kroger Co)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or as otherwise provided hereinnot the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (except as to which each party shall bear its own expensesprovided in Section 9.1(a), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto9.1(b), 9.1(c) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g9.1(e).
(ca) The Company shall pay Parent a fee of $500,000 upon the termination of If this Agreement is terminated by Parent or the Company Partners pursuant to Section 10.1(c8.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.68.1(d), if in any such event within 24 months from the date of this Agreement then the Company enters into an agreement shall pay to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerPartners the Company Termination Fee.
(db) Parent shall pay In the event that (i) an Acquisition Proposal with respect to the Company a fee of $2 million upon termination has been publicly proposed by any Person (meaning, for the purpose of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b9.1(b), (ca Person other than Partners, Partners GP and MergerCo or any Affiliate thereof) or 11.1(dany Person has publicly announced its intention (whether or not conditional) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) make such an Acquisition Proposal or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent such an Acquisition Proposal or the Company, as the case may be, be required to pay such fees or expenses intention has otherwise become publicly known to the other, if, immediately Stockholders generally and in any event such proposal or intention is not subsequently withdrawn prior to the termination of this Agreement, (ii) thereafter this Agreement is terminated by either the party Company or Partners pursuant to receive Section 8.1(b)(i) or Section 8.1(b)(iii) or by Partners pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v) and (iii) within 12 months after the fees termination of this Agreement, the Company or expenses was in material breach any of its obligations Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal, or an Acquisition Proposal with respect to the Company or any of its Subsidiaries is consummated, then the Company shall pay to Partners, if and when consummation of such Acquisition Proposal occurs (or, if earlier, upon entry into such definitive agreement), the Company Termination Fee less all Expenses of Partners previously paid to Partners.
(c) If this Agreement is terminated by the Company pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v), then Partners shall pay to the Company the Expenses of the Company. If this Agreement is terminated by Partners pursuant to Section 8.1(b)(iv) or Section 8.1(b)(v), then the Company shall pay to Partners the Expenses of Partners.
(d) Except as otherwise provided herein, any payment of the Company Termination Fee or Expenses pursuant to this Section 9.1 shall be made by wire transfer of immediately available funds to an account designated by Partners within one Business Day after such payment becomes payable; provided, however, that any payment of the Company Termination Fee by the Company as a result of termination under Section 8.1(c) or Section 8.1(d) shall be made prior to or concurrently with termination of this Agreement; provided, however, that any payment of the Company Termination Fee pursuant to Section 9.1(b) shall be made contemporaneously with the consummation of the Acquisition Proposal (or, if earlier, entry into such definitive agreement) as provided in clause (iii) of Section 9.1(b). The parties acknowledge that the agreements contained in this Section 9.1 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, none of the parties would enter into this Agreement.
(i) If the Merger is consummated, Partners shall pay, or cause to be paid, any and all property or transfer taxes imposed on either party in connection with the Merger, (ii) Expenses incurred in connection with filing, printing and mailing the Proxy Statement and the Registration Statement shall be paid one-half by Partners and one-half by the Company, and (iii) any filing fees payable pursuant to regulatory Laws and other filing fees incurred in connection with this Agreement shall be paid by the party incurring the fees. As used in this agreement, “Expenses” includes all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the preparation, printing, filing and mailing of the Proxy Statement and the Registration Statement and the solicitation of Stockholder approvals and all other matters related to the transactions contemplated hereby; provided, however, that the amount of Expenses payable by one party to another under this Section 9.1 shall not exceed $3.0 million.
(f) This Section 9.1 shall survive any termination of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Crude Carriers Corp.), Merger Agreement (Capital Product Partners L.P.)
Fees and Expenses. (a) Except as set forth If this Agreement is terminated pursuant to Section 7.1(c)(ii) or Section 7.1(d)(ii) then, in subsection any such event, the Company shall pay Parent a fee in the amount of $4,000,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid to Parent in cash by wire transfer of immediately available funds not later than two business days after the occurrence of such termination.
(b) If (i)(A) either Parent or the Company terminates this Agreement pursuant to Section 7.1(b)(ii), (B) Parent terminates this Agreement pursuant to Section 7.1(c)(iii) or (C) the Company terminates this Agreement pursuant to Section 7.1(d)(iii) (ii) prior to the Stockholders Meeting there shall have been publicly announced or publicly disclosed a bona fide Acquisition Proposal (provided, however, that for purposes of this Section 11.1 7.3(b) any reference in the definition of Acquisition Proposal to 20% shall be deemed to be a reference to 50%) that shall not have been withdrawn prior to the Stockholders Meeting and (iii) within 12 months after the date of such Stockholders Meeting, a transaction constituting an Acquisition Proposal is consummated or as otherwise provided hereinthe Company enters into an agreement with respect to a transaction constituting an Acquisition Proposal that is consummated, all fees then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds not later than two business days following the consummation of such transaction.
(c) If Parent terminates this Agreement pursuant to Section 7.1(c)(v), Parent shall pay the Company a fee in the amount of $4,000,000 (the “Parent Termination Fee”). The Parent Termination Fee shall be paid to the Company in cash by wire transfer of immediately available funds not later than two business days after the occurrence of such termination.
(d) All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Merger shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that . In no event shall Parent shall pay 100% of all fees and expenses, other be entitled to receive more than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing one payment of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4Termination Fee.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur Each of the events described Company and Parent acknowledges that the agreements contained in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to this Section 11.1(a) shall be paid within five business days after receipt of written documentation 7.3 are an integral part of the amount of expenses so payable; provided, however, transactions contemplated by this Agreement. In the event that in no event the Company shall Parent or the Company, as the case may be, be required fail to pay such the Company Termination Fee when due, the Company shall reimburse Parent for all reasonable costs and expenses actually incurred or accrued by Parent (including reasonable fees or and expenses to of counsel) in connection with the other, if, immediately prior to the termination collection under and enforcement of this AgreementSection 7.3. In the event that Parent shall fail to pay the Parent Termination Fee when due, Parent shall reimburse the party to receive Company for all reasonable costs and expenses actually incurred or accrued by the Company (including reasonable fees or and expenses was of counsel) in material breach connection with the collection under and enforcement of its obligations under this AgreementSection 7.3.
Appears in 2 contracts
Samples: Merger Agreement (Skywest Inc), Merger Agreement (Expressjet Holdings Inc)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein8.03, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated hereby by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a fee of an amount equal to $2 million upon 1,000,000 (the earliest to occur of any of “Company Termination Fee”) in the following eventsevent that:
(i) the termination of this Agreement is terminated by Parent the Company pursuant to Section 10.1(d);
(ii8.01(f) the termination of this Agreement or by Parent and Purchaser pursuant to Section 10.1(a8.01(e); or
(iiiii) (A) an Acquisition Proposal shall have been made to the termination of Public Shareholders generally or has otherwise become publicly known, disclosed or proposed, and in each case has not been withdrawn, and thereafter this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by either Parent or the Company pursuant to Section 10.1(c8.01(b)(i) as or Section 8.01(g), and (B) within twelve (12) months after such termination, the Company enters into, or publicly announces the intention to enter into, a result definitive agreement with respect to any Acquisition Proposal, or consummates the transactions contemplated by such Acquisition Proposal; provided, that for purposes of this Section 8.03(b)(ii), the percentages set forth in the defined term “Acquisition Proposal” shall be deemed to be 50%. In each case, the Company shall pay Parent the Company Termination Fee by wire transfer of immediately available funds on the second (2nd) business day following (y) in the case of a payment required by Section 8.03(b)(i), the date of termination of this Agreement, and (z) in the case of a payment required by Section 8.03(b)(ii), the closing date of any definitive agreement with regard to the Acquisition Proposal. Notwithstanding the foregoing, in the event the Company Termination Fee becomes payable by the Company in connection with a termination under Section 8.01(f) in order to enter into a definitive agreement with respect to an Acquisition Proposal with any party set forth on Section 8.03(b) of the failure Company Disclosure Letter, then the Company Termination Fee shall be reduced to receive $600,000.
(c) Parent shall pay the requisite approval of Company an amount equal to $1,000,000 (the Company's outstanding Common Stock or Preferred Stock“Parent Termination Fee”), or by Parent pursuant to Section 10.1(b) based on a failure of in the condition in Section 7.5, or event that this Agreement is terminated by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder8.01(b)(i) or Section 8.01(d), in each circumstance, as a majority result of AMVC Common Stock is acquired by a third party in a tender offer.
Parent not being able to secure financing for the Merger (d) Parent shall pay provided that at the Company a fee time of $2 million upon such termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure all of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) 7.01 and Section 7.02 shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, have been satisfied and the expenses payable pursuant to Section 11.1(a) Company shall not be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement). In such case, Parent shall pay the Company the Parent Termination Fee by wire transfer of immediately available funds on the second (2nd) business day after such termination by the Company or by cancellation of indebtedness owed by the Company to the Executives.
(d) Each of the parties hereto acknowledges that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated by this Agreement and that neither the Company Termination Fee nor the Parent Termination Fee is a penalty, but rather are liquidated damages in a reasonable amount that will compensate Parent or the Company in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision.
Appears in 2 contracts
Samples: Merger Agreement (VCG Holding Corp), Merger Agreement (Lowrie Management LLLP)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.03, all fees and expenses Expenses incurred in connection with this Agreement and the transactions contemplated hereby Transactions shall be paid by the party incurring such expenses, whether or not the Merger or any other Transaction is consummated; provided. "EXPENSES", howeveras used in this Agreement, that Parent shall pay 100% of include all reasonable out-of-pocket expenses (including all fees and expensesexpenses of counsel, other than attorneys accountants, investment bankers, financing sources, hedging counterparties, experts and accountants fees (as consultants to which each a party shall bear hereto and its own expenses), affiliates) incurred by a party or on its behalf in connection with or related to the printing authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) , the solicitation of stockholder approvals and all other matters related to the closing of the Merger and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockother Transactions.
(b) The Company agrees that if this Agreement shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsbe terminated:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d8.01(d), then (A) the Company shall pay Parent the Termination Expenses and (B) if, concurrently with such termination or within 12 months of the Termination Date, the Company enters into, or submits to the stockholders of the Company for adoption, an agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, then the Company shall also pay Parent the Company Termination Fee;
(ii) by Parent or the Company pursuant to Section 8.01(f), then (A) the Company shall pay Parent the Termination Expenses and (B) if, concurrently with such termination or within 12 months of this Agreement the Termination Date, the Company enters into, or submits to the stockholders of the Company for adoption, an agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, then the Company shall also pay Parent the Company Termination Fee;
(iii) by Parent pursuant to Section 10.1(a8.01(g), then (so long as neither Parent nor Merger Sub was in material breach of any of its representations, warranties or covenants in this Agreement as of the Termination Date) the Company shall pay Parent the Company Termination Fee and the Termination Expenses; or
(iiiiv) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g8.01(h), then the Company shall pay Parent the Company Termination Fee and the Termination Expenses (which Company Termination Fee and Termination Expenses shall be paid concurrently with such termination).
(c) The Company Termination Fee shall pay Parent a fee of $500,000 upon the termination of this Agreement by be paid to Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or its designee by the Company pursuant in immediately available funds (i) concurrently with and as a condition to Section 10.1(f) based on the failure effectiveness of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e8.01(h) and (ii) within two business days after the date of the event giving rise to the obligation to make such payment in all other circumstances. The Termination Expenses shall be paid to Parent or its designee by the Company in immediately available funds (i) concurrently with and as a Breach by Parent condition to the effectiveness of a termination of this Agreement, or Agreement by the Company pursuant to Section 10.1(f8.01(h) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
and (eii) The fees payable pursuant to Sections 11.1(b)otherwise, (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five two business days after receipt by the Company of written reasonable documentation of the amount of expenses so payable; provided, however, that in with respect to such Expenses. In no event shall Parent or the Company, as the case may be, Company be required to pay such fees or expenses to the other, if, immediately prior to the termination under Section 8.03(b) an amount in excess of $27,000,000.
(d) (i) For purposes of this AgreementSection 8.03, Acquisition Proposal shall have the party meaning assigned to receive such term in Section 6.04(f), except that references to 15% in clauses (1) and (2) of the fees or expenses was definition thereof shall be deemed to be references to 40% and clause (3) of the definition thereof shall be deemed amended and replaced in material breach of its obligations under this Agreement.entirety by the following language "
Appears in 2 contracts
Samples: Merger Agreement (Prime Hospitality Corp), Merger Agreement (Prime Hospitality Corp)
Fees and Expenses. (a) Except as set forth provided below in subsection (b) of this Section 11.1 or as otherwise provided herein6.06, all fees and expenses incurred in connection with this Agreement and the transactions Merger and any other transaction contemplated hereby by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsIf:
(i) the termination of Parent shall terminate this Agreement by Parent pursuant to Section 10.1(d)8.01(g) and prior to the Company Stockholders Meeting there is a competitive proposal;
(ii) the termination of Parent shall terminate this Agreement by Parent pursuant to Section 10.1(a8.01(c), unless at the time of such failure to recommend, withdrawal of a recommendation or adverse recommendation, recommendation of a competitive proposal, or entering into an agreement with respect to a competitive proposal, any of the conditions set forth in Section 7.03(a) or 7.03(b) would not have been satisfied as of such date and would not be reasonably capable of being satisfied; or
(iii) Parent shall terminate this Agreement pursuant to Section 8.01(e)(ii) because of a failure to satisfy or waive the conditions set forth in Section 7.02(a) or (b), then in any case as described in clause (i), (ii) or (iii) (each such case of termination being referred to as a "Trigger Event") the Company shall pay to Parent (by wire transfer of immediately available funds not later than the date of termination of this Agreement) an amount equal to $3,000,000. Acceptance by Parent of the payment referred to in the foregoing sentence shall constitute conclusive evidence that this Agreement by has been validly terminated and upon acceptance of payment of such amount the Company shall be fully released and discharged from any liability or obligation resulting from or under this Agreement. Parent's rights hereunder are in addition to any rights Parent pursuant to Section 10.1(g)may have under the Voting Agreement.
(c) The If the Company shall pay Parent a fee of $500,000 upon the termination of terminate this Agreement by Parent or the Company pursuant to Section 10.1(c8.01(f)(ii) as because of a result of the failure to receive the requisite approval of the Company's outstanding Common Stock satisfy or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of waive the conditions set forth in Sections 8.1 through 8.4.
Section 7.03(a) or (e) The fees payable pursuant to Sections 11.1(bb), then Parent shall pay to Company (c) or 11.1(d) shall be paid within one business day after by wire transfer of immediately available funds not later than the first to occur date of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, ) an amount equal to $1,000,000. Acceptance by the party Company of the payment referred to receive in the fees foregoing sentence shall constitute conclusive evidence that this Agreement has been validly terminated and upon acceptance of payment of such amount Parent shall be fully released and discharged from any liability or expenses was in material breach of its obligations obligation resulting from or under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Hovnanian Enterprises Inc), Merger Agreement (Hovnanian Enterprises Inc)
Fees and Expenses. (a) Except as set forth In the event this Agreement is terminated by Parent pursuant to Section 7.1(c)(i) (Partnership Adverse Recommendation Change) or by the Partnership or Parent pursuant to Section 7.1(b)(iii) (Partnership Unitholder Vote), in subsection each case, where a Partnership Superior Proposal Adverse Recommendation Change has occurred, then the Partnership shall pay to Parent, within two (2) business days after the date of termination, $817,000,000 (the “Partnership Termination Fee”).
(b) In the event this Agreement is terminated by the Partnership pursuant to Section 7.1(d)(i) (Parent Adverse Recommendation Change) or by the Partnership or Parent pursuant to Section 7.1(b)(iv) (Parent Stockholder Vote), in each case, where a Parent Superior Proposal Adverse Recommendation Change has occurred, then Parent shall pay to the Partnership, within two (2) business days after the date of termination, $817,000,000 (the “Parent Termination Fee”).
(c) Any payment of the Partnership Termination Fee shall be made in cash by wire transfer of same day funds to an account designated in writing by Parent. In lieu of any direct payment of the Parent Termination Fee to the Partnership by Parent, the Partnership GP shall, within two (2) business days after the date of termination of this Agreement, execute an IDR Waiver in the form attached to Section 7.3 of the Parent Disclosure Schedule (the “IDR Waiver”), and Parent hereby does consent to such action.
(d) In the event that the Partnership or Parent, as applicable, shall fail to pay the Partnership Termination Fee or the Parent Termination Fee, as applicable, required pursuant to this Section 7.3 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the legal rate of interest provided for in Section 2301 of Title 6 of the Delaware Code. In addition, if the Partnership or Parent, as applicable, shall fail to pay the Partnership Termination Fee or the Parent Termination Fee, as applicable, when due, the Partnership or Parent, as applicable, shall also pay all of the other party’s reasonable costs and expenses (including reasonable attorneys’ fees) in connection with efforts to collect such fee. The parties acknowledge that the provisions of this Section 11.1 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, none of the parties would enter into this Agreement. The parties agree that in the event that the Partnership pays the Partnership Termination Fee to Parent, the Partnership, the Partnership GP and the Partnership GP Delegate shall have no further liability to Parent or as otherwise provided herein, all fees and expenses incurred Merger Sub of any kind in connection with respect of this Agreement and the transactions contemplated hereby by this Agreement, and that in no event shall the Partnership be paid by required to pay the party incurring such expenses, whether or not the Merger is consummated; provided, however, Partnership Termination Fee on more than one occasion. The parties agree that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event that Parent pays the Merger is not approved by Parent Termination Fee to the holders Partnership through the Partnership GP’s execution of the Company's Common Stock IDR Waiver, Parent and Preferred Stock.
(b) The Company Merger Sub shall pay Parent a fee of $2 million upon have no further liability to the earliest to occur Partnership, the Partnership GP or the Partnership GP Delegate of any of the following events:
(i) the termination kind in respect of this Agreement and the transactions contemplated by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementParent Termination Fee on more than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (Kinder Morgan, Inc.), Merger Agreement (Kinder Morgan, Inc.)
Fees and Expenses. (a) Except as set forth provided in subsection (bSection 7.08(b) of this and Section 11.1 or as otherwise provided herein7.08(c), all fees and expenses incurred in connection with this Agreement the Transaction Agreements and the transactions contemplated hereby Transactions shall be paid by the party hereto incurring such fees or expenses, whether or not the Merger is such transactions are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay (or cause to be paid) to Parent a fee the Company Termination Fee if:
(i) Parent terminates this Agreement pursuant to Section 9.01(e); provided that if either the Company or Parent terminates this Agreement pursuant to Section 9.01(b)(i) or Section 9.01(b)(iv) at any time after Parent would have been permitted to terminate this Agreement pursuant to Section 9.01(e), this Agreement shall be deemed terminated pursuant to Section 9.01(e) for purposes of $2 million upon this Section 7.08(b)(i); or
(ii) (A) this Agreement is terminated pursuant to Section 9.01(b)(i) or Section 9.01(b)(iv), (B) after the earliest date hereof, but prior to occur of any the date of the following eventsCompany Stockholder Meeting (in the case of Section 9.01(b)(iv)) or prior to the date this Agreement is terminated (in the case of Section 9.01(b)(i)), a third party has made a Company Takeover Proposal that has become known to the public or a third party has publicly announced an intention to make a Company Takeover Proposal and (C) within 12 months of such termination, the Company enters into a definitive Contract to consummate any Company Takeover Proposal or any Company Takeover Proposal is consummated. For the purposes of Section 7.08(b)(ii)(C) only, the term “Company Takeover Proposal” shall have the meaning assigned to such term in Section 6.02(g)(i) except that all references to “20%” therein shall be deemed to be references to “50%”.
(c) Parent shall pay (or cause to be paid) to the Company the Parent Termination Fee if:
(i) the termination of Company terminates this Agreement by Parent pursuant to Section 10.1(d9.01(f);
(ii) ; provided that if either the termination of Company or Parent terminates this Agreement by Parent pursuant to Section 10.1(a9.01(b)(i) or Section 9.01(b)(iii) at any time after the Company would have been permitted to terminate this Agreement pursuant to Section 9.01(f), this Agreement shall be deemed terminated pursuant to Section 9.01(f) for purposes of this Section 7.08(c)(i); or
(iiiii) the termination of (A) this Agreement by the Company or Parent is terminated pursuant to Section 10.1(g9.01(b)(i) or Section 9.01(b)(iii).
, (cB) The Company shall pay Parent a fee of $500,000 upon after the termination of this Agreement by Parent or the Company pursuant date hereof, but prior to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of the Company Stockholder Meeting (in the case of Section 9.01(b)(iii)) or prior to the date this Agreement is terminated (in the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority case of AMVC Common Stock is acquired by Section 9.01(b)(i)), a third party has made a Parent Takeover Proposal that has become known to the public or a third party has publicly announced an intention to make a Parent Takeover Proposal and (C) within 12 months of such termination, Parent enters into a definitive Contract to consummate any Parent Takeover Proposal or any Parent Takeover Proposal is consummated. For the purposes of Section 7.08(c)(ii)(C) only, the term “Parent Takeover Proposal” shall have the meaning assigned to such term in a tender offerSection 6.03(g)(i) except that all references to “20%” therein shall be deemed to be references to “50%”.
(d) Any Company Termination Fee due under Section 7.08(b) or any Parent Termination Fee due under Section 7.08(c) shall pay be paid by wire transfer of same-day funds (i) in the Company a fee case of $2 million upon Section 7.08(b)(i) or Section 7.08(c)(i), on the Business Day immediately following the date of termination of this Agreement by and (ii) in the Company pursuant to case of Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c7.08(b)(ii) or 11.1(d7.08(c)(ii) shall be paid within one business day after on the date of the first to occur of the events described referred to in Sections 11.1(b), (cSection 7.08(b)(ii)(C) or 11.1(d7.08(c)(ii)(C), as applicable.
(e) Parent and the case may beCompany acknowledge and agree that the agreements contained in Section 7.08(b) and 7.08(c) are an integral part of the Transactions, and that, without these agreements, Parent and the expenses payable Company would not have entered into this Agreement. Accordingly, if either party hereto fails promptly to pay the amount due pursuant to Section 11.1(a7.08(b) or 7.08(c), as applicable, and, in order to obtain such payment, the other party hereto commences a suit, action or other proceeding that results in a Judgment in its favor for such payment, the Company or Parent, as applicable, shall be paid within five business days after receipt of written documentation of pay to the other party hereto such payment and its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, action or other proceeding, together with interest on the amount of expenses so payable; providedsuch payment from the date such payment was required to be made until the date of payment at the prime rate of JPMorgan Chase Bank, however, that N.A. in effect on the date such payment was required to be made. In no event shall Parent or the Company, as the case may be, either party hereto be required obligated to pay such fees or expenses more than one termination fee pursuant to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementSection 7.08.
Appears in 2 contracts
Samples: Merger Agreement (IsoPlexis Corp), Merger Agreement (Berkeley Lights, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in In the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsthat:
(i) the termination of this Agreement is terminated by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
7.1(b)(ii) and (cA) The prior to the Company Stockholder Meeting, a Company Competing Proposal shall have been publicly disclosed and not publicly withdrawn prior to such termination date, and (B) within twelve (12) months after the date of any such termination, (x) the Company enters into a definitive agreement with respect to any Company Competing Proposal or (y) the transactions contemplated by any Company Competing Proposal are consummated, the Company shall pay to Parent a fee or its designee by wire transfer of $500,000 upon same day funds to the termination of this Agreement account or accounts designated by Parent or such designee the Company Termination Fee concurrently with, and contingent upon, the consummation of the transactions contemplated by such Company Competing Proposal regardless of the date of such consummation;
(ii) this Agreement is terminated by Company or Parent pursuant to Section 10.1(c7.1(b)(iii) as and (A) prior to the Parent Stockholder Meeting, a result Parent Competing Proposal shall have been publicly disclosed and not publicly withdrawn prior to such termination date, and (B) within twelve (12) months after the date of any such termination, (x) Parent enters into a definitive agreement with respect to any Parent Competing Proposal or (y) the transactions contemplated by any Parent Competing Proposal are consummated, Parent shall pay to the Company or its designee by wire transfer of same day funds to the account or accounts designated by the Company or such designee the Parent Termination Fee concurrently with, and contingent upon, the consummation of the failure to receive the requisite approval transactions contemplated by such Parent Competing Proposal regardless of the Company's outstanding Common Stock or Preferred Stock, or date of such consummation;
(iii) this Agreement is terminated by Parent pursuant to Section 10.1(b7.1(c)(i) based on and (A) prior to such termination, a failure Company Competing Proposal shall have been publicly disclosed and not publicly withdrawn prior to such termination date, and (B) within twelve (12) months after the date of any such termination, (x) the Company enters into a definitive agreement with respect to such Company Competing Proposal or (y) the transactions contemplated by such Company Competing Proposal are consummated, the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Company Termination Fee concurrently with, and contingent upon, the consummation of the condition in Section 7.5, or transactions contemplated by such Company Competing Proposal regardless of the date of such consummation;
(iv) this Agreement is terminated by the Company pursuant to Section 10.1(f7.1(d)(i) based on the failure of the condition set forth in Section 8.6and (A) prior to such termination, if in any a Parent Competing Proposal shall have been publicly disclosed and not publicly withdrawn prior to such event termination date, and (B) within 24 twelve (12) months from after the date of any such termination, (x) Parent enters into a definitive agreement with respect to such Parent Competing Proposal or (y) the transactions contemplated by such Parent Competing Proposal are consummated, Parent shall pay to the Company or its designee by wire transfer of same day funds to the account or accounts designated by the Company or such designee the Parent Termination Fee concurrently with, and contingent upon, the consummation of the transactions contemplated by such Parent Competing Proposal regardless of the date of such consummation;
(v) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Company Termination Fee within two (2) Business Days after such termination;
(vi) this Agreement is terminated by Parent pursuant to Section 7.1(c)(iii) and within twelve (12) months after the date of any such termination, (x) the Company enters into an a definitive agreement with respect to be acquired any Company Competing Proposal or (y) any Company Competing Proposal is consummated, the Company shall pay to Parent or its designee by any third party wire transfer of same day funds to the account or accounts designated by Parent or such designee the Company Termination Fee within two (including any current AMVC shareholder2) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.Business Days;
(dvii) Parent shall pay the Company a fee of $2 million upon termination of this Agreement is terminated by the Company pursuant to Section 10.1(e) after a Breach 7.1(d)(ii), the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent of or such designee the Company Termination Fee prior to, and as a condition to, such termination; or
(viii) this Agreement, or Agreement is terminated by the Company pursuant to Section 10.1(f7.1(d)(iii), Parent shall pay to the Company or its designee by wire transfer of same day funds to the account or accounts designated by the Company or such designee the Parent Termination Fee within two (2) based upon a failure of the conditions set forth in Sections 8.1 through 8.4Business Days after such termination.
(eb) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination For purposes of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementSection 7.3.
Appears in 2 contracts
Samples: Merger Agreement (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.03, 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 Mergers are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsParties agree that if:
(i) the termination of this Agreement by Parent shall be terminated pursuant to Section 10.1(d9.01(e) or, 9.01(f), then the Company will pay (to the extent not previously paid by or at the direction of the Company) to Parent, or as directed by Parent, an amount equal to the Company Termination Fee plus the Parent Expenses; provided that, in either case, the applicable amount shall be paid promptly, but in no event later than two (2) Business Days after such termination in the case of termination pursuant to Section 9.01(f) or, in the case of termination pursuant to Section 9.01(e), simultaneously with such termination;
(ii) (A) prior to the Company Shareholders’ Meeting, any Qualifying Acquisition Proposal is publicly proposed or publicly disclosed and not withdrawn at or prior to the time of, the Company Shareholders’ Meeting, (B) this Agreement is terminated pursuant to Section 9.01(b)(i) or Section 9.01(b)(ii) (and if in the case of a termination pursuant to Section 9.01(b)(ii) the Company Shareholder Approval had not been obtained at the time of termination of this Agreement by and Parent pursuant did not breach its obligations under Section 7.01 in any material respect) and (C) concurrently with or within twelve (12) months after the date of such termination, any Company Party enters into a definitive agreement with respect to Section 10.1(aor consummates any Qualifying Acquisition Proposal, then the Company shall, promptly after consummating any such Qualifying Acquisition Proposal (but in no event later than five (5) Business Days following such consummation), pay to Parent the Company Termination Fee plus the Parent Expenses; or
(iii) the termination of this Agreement by the Company or Parent shall be terminated pursuant to Section 10.1(g9.01(b)(i).
(c, Section 9.01(c), Section 9.01(g) The or Section 9.01(h), then the Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred StockParent, or as directed by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5Parent, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6promptly, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that but in no event shall Parent or the Companylater than two (2) Business Days after such termination, as the case may be, be required to pay such fees or expenses an amount equal to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.Parent Expenses;
Appears in 2 contracts
Samples: Merger Agreement (GMH Communities Trust), Merger Agreement (GMH Communities Trust)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or as otherwise provided hereinnot the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (except as to which each party shall bear its own expenses), incurred provided in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating theretoSections 8.1(d) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"8.1(e); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of If this Agreement is terminated by Parent pursuant to Section 10.1(d7.1(c) or 7.1(d);, then the Company shall pay to Parent in immediately available funds a termination fee in an amount equal to U.S. $12.5 million (the “Termination Fee”).
(c) In the event that (i) an Acquisition Proposal with respect to the Company has been proposed by any Person (other than Parent and Purchaser or any of their respective affiliates) or any Person has publicly announced its intention (whether or not conditional) to make such Acquisition Proposal or such Acquisition Proposal or such intention has otherwise become publicly known to the Company’s stockholders generally, (ii) the termination of thereafter this Agreement is terminated by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by either the Company or Parent pursuant to Section 10.1(g)7.1(b)(i) or 7.1(b)(iii) and (iii) within 12 months after the termination of this Agreement, the Company or any of its Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal, or an Acquisition Proposal with respect to the Company or any of its Subsidiaries is consummated, then the Company shall pay to Parent the Termination Fee in immediately available funds.
(cd) The Company For purposes of clause (iii) of Section 8.1(c) only, the term “Acquisition Proposal” shall pay Parent a fee have the meaning assigned to such term in Section 5.3(f) except that all references to “10%” therein shall be deemed to be references to “40%”.
(e) Any payment of $500,000 upon the Termination Fee pursuant to Section 8.1(b) or 8.1(c) shall be made within one Business Day after termination of this Agreement by Parent or wire transfer of immediately available funds to an account designated by Parent. Any payment of the Company Termination Fee pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d8.1(d) shall be paid within one business day after made prior to the first to occur of the events described in Sections 11.1(bclause (iii) of Section 8.1(d), (c) or 11.1(d), as . The parties acknowledge that the case may be, and the expenses payable pursuant to agreements contained in this Section 11.1(a) shall be paid within five business days after receipt of written documentation 8.1 are an integral part of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of transactions contemplated by this Agreement, and that, without these agreements, none of the party to receive the fees or expenses was in material breach of its obligations under parties would enter into this Agreement; accordingly, if the Company fails promptly to pay or cause to be paid the amounts due pursuant to this Section 8.1, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amounts set forth in this Section 8.1, the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit and any appeal relating thereto, together with interest on the amounts set forth in this Section 8.1 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (Mission Resources Corp), Merger Agreement (Petrohawk Energy Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinbelow, all fees and expenses incurred in connection with the Merger and the other transactions contemplated by this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is such transactions are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a fee of $2 million upon 85,000,000 (the earliest to occur of any of the following events“Termination Fee”) if:
(i) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(d8.01(e); provided that if either the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii) at any time after Parent would have been permitted to terminate this Agreement pursuant to Section 8.01(e), this Agreement shall be deemed terminated pursuant to Section 8.01(e) for purposes of this Section 6.06(b)(i);
(ii) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(a8.01(d) as a result of a breach by the Company of, or failure by the Company to perform, the Company’s obligations under Section 6.01(d), if such breach shall have occurred or continued after a Takeover Proposal shall have been made to the Company or shall have been made directly to the stockholders of the Company generally or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal; or
(iii) (A) prior to the Company Stockholders Meeting, (1) a Takeover Proposal shall have been made to the Company and not withdrawn or shall have been made directly to the stockholders of the Company generally and not withdrawn or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal not subsequently withdrawn, or (2) a Takeover Proposal shall have been made to the Company which is withdrawn or shall have been made directly to the stockholders of the Company generally and is withdrawn or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal which is subsequently withdrawn, (B) this Agreement is terminated pursuant to Section 8.01(b)(i) prior to the Company Stockholders Meeting or Section 8.01(b)(iii) and (C) within 12 months of such termination, (x) in the case of clause (A)(1) of this Section 6.06(b)(iii), the Company enters into a definitive Contract to consummate a Takeover Proposal or a Takeover Proposal is consummated or (y) in the case of clause (A)(2) of this Section 6.06(b)(iii), the Company enters into a definitive Contract to consummate a Takeover Proposal with the Person making the Takeover Proposal that was withdrawn (or any Affiliate of such Person) or any Takeover Proposal with the Person making the Takeover Proposal that was withdrawn (or any Affiliate of such Person) is consummated, provided, however, that solely for this Section 6.06(b)(iii), all references to 20% in the definition of “Takeover Proposal” shall be deemed to be references to 50.1%. Any Termination Fee due under this Section 6.06(b) shall be paid by wire transfer of same-day funds (x) in the case of clause (i) or (ii) above, on the Business Day immediately following the date of termination of this Agreement by and (y) in the Company or Parent pursuant case of clause (iii) above, on the date of the first to Section 10.1(g)occur of the events referred to in clause (iii)(C) above.
(c) The Company shall pay acknowledges and agrees that the agreements contained in Section 6.06(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent a fee of $500,000 upon the termination of would not enter into this Agreement by Parent or Agreement. Accordingly, if the Company fails promptly to pay the amount due pursuant to Section 10.1(c) as 6.06(b), and, in order to obtain such payment, Parent commences a result of the failure to receive the requisite approval of the Company's outstanding Common Stock suit, action or Preferred Stockother proceeding that results in a Judgment in its favor for such payment, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant shall pay to Section 10.1(fParent its costs and expenses (including attorneys’ fees and expenses) based in connection with such suit, action or other proceeding, together with interest on the failure amount of the condition set forth in Section 8.6, if in any such event within 24 months payment from the date of this Agreement the Company enters into an agreement such payment was required to be acquired by any third party (including any current AMVC shareholder) or a majority made until the date of AMVC Common Stock is acquired by a third party payment at the prime rate of BankAmerica in a tender offer.
(d) Parent shall pay effect on the Company a fee of $2 million upon termination of this Agreement by the Company pursuant date such payment was required to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in made. In no event shall Parent or the Company, as the case may be, Company be required obligated to pay such fees or expenses to the other, if, immediately prior to the more than one termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreementfee.
Appears in 2 contracts
Samples: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.03, 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, except that Parent shall pay 100% of all fees out-of-pocket costs and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), expenses incurred in connection with the printing and filing of mailing the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved be borne by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsagrees that if this Agreement is terminated:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
9.01(e) and (iiA) at any time after the termination of this Agreement by Parent pursuant date hereof and prior to Section 10.1(a); or
(iii) the termination of this Agreement by obtaining the Company or Parent pursuant Shareholder Approval, an Acquisition Proposal shall have been publicly announced prior to Section 10.1(g).
such Termination Date (c) The Company shall pay Parent a fee of $500,000 upon and such Acquisition Proposal was not withdrawn before the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(bTermination Date), and (cB) concurrently with such termination or 11.1(dwithin twelve (12) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to months following the termination of this Agreement, the party Company enters into an agreement with respect to receive an Acquisition Proposal, or an Acquisition Proposal is consummated, then the fees Company shall pay to Parent, if and when consummation of such Acquisition Proposal occurs, an amount equal to $1,000,000 (the “Superior Offer Termination Fee”);
(ii) pursuant to Section 9.01(f), then the Company shall pay to Parent the Superior Offer Termination Fee; or
(iii) pursuant to Section 9.01(d) then the Company shall pay to Parent $400,000 (the “Company Termination Fee”). The Company Superior Offer Termination Fee or expenses was Termination Fee shall be paid by the Company as directed by Parent in material breach writing in immediately available funds as soon as is reasonably practicable, but in any event no more than three (3) Business Days following the event giving rise to the obligation to make such payment. Upon payment of its obligations the Company Superior Termination Fee or Termination Fee, the Company shall have no further liability to Mx. Xxx, Parent and MergerSub at law or in equity with respect to such termination, this Agreement or otherwise.
(c) Mx. Xxx agrees that if this Agreement is terminated pursuant to Section 9.01(g), then Mx. Xxx shall pay to the Company an amount equal to $400,000 (“Mx. Xxx Termination Fee”). Mx. Xxx Termination Fee shall be paid by Mx. Xxx as directed by the Company in writing in immediately available funds as soon as is reasonably practicable, but in any event no more than three (3) Business Days following such termination. Payment by Mx. Xxx of Mx. Xxx Termination Fee shall be the Company’s sole and exclusive remedy against Mx. Xxx, Parent and MergerSub for failure to consummate the Merger and performance under this AgreementAgreement and shall be in lieu of all other relief. It is understood and agreed that payment of the Parent Termination Fee represents the reasonable estimate of actual damages by the Company, Mx. Xxx, Parent and MergerSub and does not constitute a penalty. Upon payment of the Mx. Xxx Termination Fee, Mx. Xxx, Parent and MergerSub shall have no further liability to the Company at law or in equity with respect to such termination, this Agreement or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Dragon Pharmaceutical Inc), Merger Agreement (Dragon Pharmaceutical Inc)
Fees and Expenses. (a) In the event that:
(i) this Agreement is validly terminated by Parent pursuant to Section 8.01(d) or by the Company pursuant to Section 8.01(g), then the Company shall pay to Parent concurrently with such termination, in the case of a termination by the Company, or within two business days thereafter, in the case of a termination by Parent, a termination fee of $108,700,000 (the “Company Termination Fee”).
(ii) (A) this Agreement is validly terminated by (x) Parent or the Company pursuant to Section 8.01(b)(i) (provided that in the case of termination by the Company, at the time of such termination Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 8.01(b)(i)), (y) Parent pursuant to Section 8.01(c) as a result of a breach of a covenant or agreement by the Company or (z) Parent or the Company pursuant to Section 8.01(h) and, in the case of this clause (z), at the final Expiration Date immediately preceding such termination pursuant to Section 8.01(h), all Offer Conditions other than the Minimum Tender Condition and the Offer Condition in clause (v) of Exhibit A (which only need to be capable of being satisfied) had been satisfied or waived, (B) following the date hereof and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed or shall have otherwise become publicly known (and not publicly withdrawn prior to the time of such termination) or is otherwise known to the Company Board and (C) within 12 months after such termination, the Company or any Company Subsidiary either (1) consummates a Company Takeover Proposal or (2) enters into a definitive agreement with respect to a Company Takeover Proposal; provided that for all purposes of this Section 6.05(a)(ii), the term Company Takeover Proposal shall have the meaning assigned to such term in Section 5.02(j), except that the references to “15%” shall be deemed to be references to 50%, then the Company shall pay to Parent the Company Termination Fee on the date no later than two business days after the earlier of the consummation of a Company Takeover Proposal or the date of entry into a definitive agreement with respect to a Company Takeover Proposal.
(iii) All payments under this Section 6.05(a) shall be made by the Company to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(b) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 6.05 are an integral part of the Transactions and (ii) without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely manner the Company Termination Fee due pursuant to this Section 6.05 and, in order to obtain such payment, Parent makes a claim that results in a judgment for the Company Termination Fee, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the Company Termination Fee at the prime rate of Citibank, N.A. in effect from time to time from the date such payment was required to be made hereunder through the date such payment was actually received.
(c) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein6.05 and Section 6.07, all fees and expenses incurred in connection with this Agreement and Agreement, the transactions contemplated hereby Transactions shall be paid by the party incurring such fees or expenses, whether or not the Offer or the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Stryker Corp), Merger Agreement (Vocera Communications, Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinbelow, all fees and expenses incurred in connection with the Merger and the other transactions contemplated by this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is such transactions are consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a fee of $2 million upon 99,000,000 (the earliest to occur of any of the following events“Termination Fee”) if:
(i) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(d8.01(e); provided that if either the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii) at any time after Parent would have been permitted to terminate this Agreement pursuant to Section 8.01(e), this Agreement shall be deemed terminated pursuant to Section 8.01(e) for purposes of this Section 6.06(b)(i);
(ii) the termination of Parent terminates this Agreement by Parent pursuant to Section 10.1(a8.01(d) as a result of a breach by the Company of, or failure by the Company to perform, the Company’s obligations under Section 6.01(d), if such breach shall have occurred or continued after a Takeover Proposal shall have been made to the Company or shall have been made directly to the stockholders of the Company generally or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal;
(iii) (A) prior to the Company Stockholders Meeting, a Takeover Proposal shall have been made to the Company and not withdrawn or shall have been made directly to the stockholders of the Company generally and not withdrawn or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal not subsequently withdrawn, (B) this Agreement is terminated pursuant to Section 8.01(b)(i) prior to the Company Stockholders Meeting or Section 8.01(b)(iii) and (C) within 12 months of such termination, the Company enters into an Alternative Acquisition Agreement or a Takeover Proposal is consummated (provided that for purposes of clause (C) of this Section 6.06(b)(iii), the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “50%”);
(iv) (A) prior to the Company Stockholders Meeting, a Takeover Proposal shall have been made to the Company which is withdrawn or shall have been made directly to the stockholders of the Company generally and is withdrawn or shall otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal which is subsequently withdrawn, (B) this Agreement is terminated pursuant to (i) Section 8.01(b)(i) prior to the Company Stockholders Meeting or (ii) Section 8.01(b)(iii) and such Takeover Proposal was publicly withdrawn without qualification less than fifteen (15) calendar days prior to the date of the Company Stockholders Meeting and (C) within 12 months of such termination, the Company enters into an Alternative Acquisition Agreement with the Person making the Takeover Proposal that was withdrawn (or any Affiliate of such Person) or any Takeover Proposal with the Person making the Takeover Proposal that was withdrawn (or any Affiliate of such Person) is consummated (provided that for purposes of clause (C) of this Section 6.06(b)(iv), the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “50%”); or
(iiiv) the Company terminates this Agreement pursuant to Section 8.01(f) and the counterparty to such Alternative Acquisition Agreement is not an Excluded Party. Any Termination Fee due under this Section 6.06(b) shall be paid by wire transfer of same-day funds (x) in the case of clauses (i) or (ii) above, on the Business Day immediately following the date of termination of this Agreement by and (y) in the Company case of clauses (iii) or Parent pursuant (iv) above, on the date of the first to Section 10.1(goccur of the events referred to in clause (iii)(C) or (iv)(C), as applicable, above.
(c) The Company shall pay to Parent a fee of $500,000 upon 49,500,000 (the termination of “Excluded Party Termination Fee”) if the Company terminates this Agreement by Parent or the Company pursuant to Section 10.1(c8.01(f) as a result of and the failure counterparty to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Alternative Acquisition Agreement the Company enters into is an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerExcluded Party.
(d) The Company acknowledges and agrees that the agreements contained in Section 6.06(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to pay the amount due pursuant to Section 6.06(b), and, in order to obtain such payment, Parent commences a suit, action or other proceeding that results in a Judgment in its favor for such payment, the Company shall pay to Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, action or other proceeding, together with interest on the amount of such payment from the date such payment was required to be made until the date of payment at the prime rate of Bank of America in effect on the date such payment was required to be made, plus five percent. In no event shall the Company be obligated to pay more than one termination fee.
(e) Notwithstanding the foregoing, in no event shall the Company be required to pay (i) both the Termination Fee and the Excluded Party Termination Fee or (ii) either the Termination Fee or the Excluded Party Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement, the parties agree that if this Agreement is terminated under circumstances in which the Company is obligated to pay the Termination Fee or the Excluded Party Termination Fee under this Section 6.06 and the Termination Fee or the Excluded Party Termination Fee, as applicable, is paid, the payment of the Termination Fee or the Excluded Party Termination Fee, as applicable, shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement and the transactions contemplated by this Agreement, and, upon payment of the Termination Fee or Excluded Party Termination Fee, as applicable, pursuant to this Section 6.06, the Company and the Company Subsidiaries and its and their respective directors, officers, employees, stockholders and other Representatives shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub or any of their respective Subsidiaries; provided, however, that (A) the parties hereto will remain obligated and entitled to remedies with respect to Section 6.06(d), and (B) nothing in this Section 6.06(e) shall relieve any party hereto from liability for any statement, act or failure to act by such party that is material and that such party intended to be a misrepresentation or a breach of any covenant or agreement set forth in this Agreement.
(f) Parent shall pay to the Company a fee of $2 million upon termination of 125,000,000 (the “Reverse Termination Fee”) if:
(i) Either Parent or the Company terminates this Agreement by the Company pursuant to Section 10.1(e8.01(b)(i) after a Breach by Parent of this Agreement, or pursuant due to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4Section 7.01(c) or 7.01(d) not having been satisfied by the End Date or
(ii) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) due to a Legal Restraint imposed in connection with the antitrust approvals set forth in Section 7.01(c) or 7.01(d).
(eg) The fees payable pursuant to Sections 11.1(b), (cParent acknowledges and agrees that the agreements contained in Section 6.06(f) or 11.1(d) shall be paid within one business day after the first to occur are an integral part of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may betransactions contemplated by this Agreement, and that, without these agreements, the expenses payable Company would not enter into this Agreement. Accordingly, if Parent fails promptly to pay the amount due pursuant to Section 11.1(a6.06(f), and, in order to obtain such payment, the Company commences a suit, action or other proceeding that results in a Judgment in its favor for such payment, Parent shall pay to the Company its costs and expenses (including attorneys’ fees and expenses) shall be paid within five business days after receipt of written documentation of in connection with such suit, action or other proceeding, together with interest on the amount of expenses so payablesuch payment from the date such payment was required to be made until the date of payment at the prime rate of Bank of America in effect on the date such payment was required to be made, plus five percent. In no event shall Parent be obligated to pay more than one termination fee.
(h) Notwithstanding the foregoing, in no event shall Parent be required to pay the Reverse Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement, the parties agree that if this Agreement is terminated under circumstances in which Parent is obligated to pay the Reverse Termination Fee under this Section 6.06 and the Reverse Termination Fee is paid, the payment of the Reverse Termination Fee shall be the sole and exclusive remedy available to the Company with respect to this Agreement and the transactions contemplated by this Agreement, and, upon payment of the Reverse Termination Fee pursuant to this Section 6.06, Parent and the Parent Subsidiaries and its and their respective directors, officers, employees, stockholders and other Representatives shall have no further monetary liability with respect to this Agreement or the transactions contemplated by this Agreement to the Company or any of the Company Subsidiaries; provided, however, that (A) the parties hereto will remain obligated and entitled to remedies with respect to Section 6.06(g) and (B) nothing in no event this Section 6.06(h) shall Parent relieve any party hereto from liability for any statement, act or the Company, as the case may be, failure to act by such party that is material and that such party intended to be required to pay such fees a misrepresentation or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material a breach of its obligations under any covenant or agreement set forth in this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Gartner Inc), Merger Agreement (CEB Inc.)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinbelow, all fees and expenses incurred in connection with this Agreement the Merger and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) (A) a Takeover Proposal has been made to the termination of Company or its stockholders or a Takeover Proposal shall have otherwise become publicly known, (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 10.1(d)8.01(b)(i) or Section 8.01(b)(iii) and (C) at any time (1) on or prior to the six-month anniversary of such termination, the Company or any Company Subsidiary (x) enters into any Acquisition Agreement with respect to any Takeover Proposal or (y) the transactions contemplated by any Takeover Proposal are consummated or (2) after the six-month anniversary but prior to the 12-month anniversary of such termination, the Company or any Company Subsidiary (x) enters into any Acquisition Agreement with respect to any Takeover Proposal made by a Designated Party or (y) the transactions contemplated by any Takeover Proposal are consummated by a Designated Party;
(ii) the termination of this Agreement is terminated by Parent the Company pursuant to Section 10.1(a8.01(f); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or is terminated by Parent pursuant to Section 10.1(b8.01(c) based on and either (A) prior to such termination a failure of the condition in Section 7.5, or by Takeover Proposal has been made to the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or its stockholders or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
Takeover Proposal shall have otherwise become publicly known or (dB) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately at any time prior to the termination 12-month anniversary of this Agreementsuch termination, the party Company or any Company Subsidiary enters into any Acquisition Agreement with respect to receive any Takeover Proposal or the fees or expenses was in material breach of its obligations under this Agreement.transactions contemplated by any Takeover Proposal are consummated,
Appears in 2 contracts
Samples: Merger Agreement (United Defense Industries Inc), Merger Agreement (United Defense Industries Inc)
Fees and Expenses. (a) Except as set forth specifically provided to the contrary in subsection (b) of this Section 11.1 or as otherwise provided hereinAgreement, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby consummation of the Transactions shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:If
(i) the termination Company shall enter into a definitive written agreement which accepts or implements a Superior Proposal, the Company shall pay Parent an amount equal to the Termination Fee concurrently with its execution of this Agreement by Parent pursuant to Section 10.1(d)such agreement;
(ii) either the Company or Parent terminates this Agreement pursuant to SECTION 8.1(b)(i) and prior thereto there shall have been publicly announced another Acquisition Proposal by a Person other than Parent, Purchaser or any of their Affiliates (and such Acquisition Proposal has not been withdrawn prior to the time of such termination), and at any time prior to, or within twelve months after the termination of this Agreement Agreement, the Company shall have consummated a transaction with respect to such Acquisition Proposal, the Company shall pay Parent an amount equal to the Termination Fee concurrently with the consummation of the transaction contemplated by Parent pursuant to Section 10.1(a); orsuch Acquisition Proposal;
(iii) the Company shall terminate this Agreement pursuant to SECTION 8.1(c)(ii), the Company shall pay Parent an amount equal to the Termination Fee concurrently with the Company's termination of this Agreement; or
(iv) Parent shall terminate this Agreement by pursuant to SECTION 8.1(d)(ii), the Company shall pay Parent an amount equal to the Termination Fee within two (2) Business Days after Parent's termination of this Agreement; The Company hereby waives any right to set off or Parent pursuant counterclaim against such amount solely to Section 10.1(g)the extent that such right to set off or counterclaim does not arise out of this Agreement or the Transactions. The Termination Fee shall be paid in same day funds.
(c) The Company shall pay and Company Subsidiaries expressly acknowledge that the agreements contained in this SECTION 9.1(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent a fee of $500,000 upon the termination of would not enter into this Agreement by Parent or Agreement; accordingly, if the Company pursuant or any Company Subsidiary fail promptly to Section 10.1(cpay the Termination Fee, and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company or any Company Subsidiary for the Termination Fee, the Company and the Company Subsidiaries expressly shall be obligated, jointly and severally, to pay to Parent its reasonable costs and expenses (including reasonable attorneys' fees and expenses) as a result in connection with such suit, together with interest on the amount of the failure to receive Termination Fee at the requisite approval prime rate of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition Citibank N.A. in Section 7.5, or by the Company pursuant to Section 10.1(f) based effect on the failure of the condition set forth in Section 8.6, if in any date such event within 24 months from the date of this Agreement the Company enters into an agreement payment was required to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offermade.
(d) Parent shall pay If this Agreement is terminated pursuant to SECTION 8.1(c)(ii) OR 8.1(d), the Company a fee shall reimburse Parent for Parent's Expenses within two (2) Business Days after invoice of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4such Expenses.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Convergent Holding Corp), Merger Agreement (Convergent Holding Corp)
Fees and Expenses. (a) Except as In the event this Agreement is terminated by (i) the Partnership or Parent pursuant to Section 8.1(e) (Outside Date) and, at the time of such termination, the condition set forth in subsection Section 7.3(g) (bQualified Pasadena Sale or Spin Out Transactions) has not been satisfied, (ii) the Partnership or Parent pursuant to Section 8.1(f) (No Partnership Unitholder Approval), or (iii) by Parent pursuant to Section 8.1(c) (Partnership Entity Breach) or Section 8.1(i) (Breach of this Section 11.1 No Shop), the Partnership shall pay Parent (or its designated Affiliate) an amount equal to $10,000,000 (as otherwise provided herein, all fees and expenses incurred in connection with this Agreement and a reimbursement of expenses) (the transactions contemplated hereby shall be paid by the party incurring “Parent Expenses Amount”) within two (2) LA\4224998.8 US 3682459v.19 Business Days after such expenses, whether or not the Merger is consummatedtermination; provided, however, that Parent in no event shall pay 100% the Partnership have any obligation to make any such payment if, at the time of all fees and expensessuch termination, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved this Agreement was terminable by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent Partnership pursuant to Section 10.1(d8.1(d) (Parent Entity Breach);
(ii) . In the termination of event this Agreement is terminated by Parent the Partnership pursuant to Section 10.1(a8.1(d) (Parent Entity Breach); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company Partnership (or its designated Affiliate) an amount equal to $10,000,000 (as a fee reimbursement of $2 million upon termination of this Agreement by expenses) (the Company pursuant to Section 10.1(e“Partnership Expenses Amount”) within two (2) Business Days after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payablesuch termination; provided, however, that in no event shall Parent have any obligation to make any such payment if, at the time of such termination, this Agreement was terminable by Parent pursuant to Section 8.1(c) (Partnership Entity Breach).
(b) In the event that (i) an Alternative Proposal is publicly proposed or the Company, as the case may be, be required to pay such fees publicly disclosed or expenses otherwise communicated to the otherPartnership Board prior to, if, immediately and not withdrawn prior to the termination date of the Partnership Meeting, (ii) this Agreement is terminated by the Partnership or Parent pursuant to Section 8.1(f) (No Partnership Unitholder Approval), and (iii) the Partnership enters into a definitive agreement with respect to an Alternative Proposal or an Alternative Proposal is consummated within twelve (12) months after the date this Agreement is terminated, then the Partnership will pay to Parent (or its designated Affiliate) the Termination Fee, plus, if not previously paid pursuant to Section 8.4(a), the Parent Expenses Amount, upon the consummation of any such transaction. For purposes of this AgreementSection 8.4(b), the party term “Alternative Proposal” has the meaning assigned to receive such term in Section 6.5(f)(i), except that the fees references to “15% or expenses was in material breach of its obligations under this Agreementmore” are deemed to be references to “more than 50%.”
Appears in 2 contracts
Samples: Merger Agreement (CVR Partners, Lp), Merger Agreement
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinbelow, all fees and expenses incurred in connection with this Agreement Agreement, the Merger and the transactions contemplated hereby other Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided. Notwithstanding the foregoing or anything else in this Agreement to the contrary, however, that Parent any filing fees assessed under the HSR Act shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved be paid by the holders of the Company's Common Stock and Preferred StockParent.
(b) The Company shall pay to Parent a termination fee of equal to $2 32.7 million upon (the earliest to occur of any of the following events:
“Termination Fee”) if: (iI) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(iiX) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, a Company Takeover Proposal is publicly proposed or announced or otherwise becomes publicly known, or any person shall have publicly announced an intention (whether or not conditional and whether or not withdrawn) to make a Company Takeover Proposal, (Y) thereafter this Agreement is terminated pursuant to Section 8.01(b)(i), Section 8.01(b)(iii), Section 8.01(c), Section 8.01(d)(ii), Section 8.01(d)(iii) or Section 8.01(d)(iv), and (Z) within twelve (12) months following such termination the party Company enters into a definitive agreement to receive consummate, or consummates, the fees transactions contemplated by such Company Takeover Proposal (solely for purposes of this Section 6.08(b), the term “Company Takeover Proposal” shall have the meaning set forth in the definition of Company Takeover Proposal contained in Section 5.03(c) except that all references to twenty percent (20%) shall be deemed references to fifty percent (50%)), (II) Parent terminates this Agreement pursuant to Section 8.01(d)(i) or expenses was in material breach of its obligations (III) the Company terminates this Agreement pursuant to Section 8.01(f). Any fee due under this AgreementSection 6.08(b) shall be paid by wire transfer of same-day funds to an account designated by Parent (A) in the case of preceding clause (I), prior to or simultaneously with the entry into a definitive agreement relating to the Company Takeover Proposal contemplated by the preceding clause (I), (B) in the case of the preceding clause (II), no later than one Business Day after such termination or (C) in the case of the preceding clause (III), immediately prior to such termination. Notwithstanding the foregoing, in the event the Reverse Termination Fee is paid (or required to be paid) in accordance with Section 6.08(c), the Company shall not be required to pay the Termination Fee pursuant to Section 6.08(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nielsen Holdings N.V.), Merger Agreement (Arbitron Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, 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 Transaction is consummated; provided, however, that Parent Private Company and Public Company shall pay 100% of share equally all fees and expenses, other than attorneys accountant’s and accountants fees (as to which each party shall bear its own expenses)attorneys’ fees, incurred in connection with respect to the printing printing, filing and filing mailing of the Proxy Statement/Prospectus Statement (including any related preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibitsmaterials) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockthereto.
(b) The Private Company shall pay Parent Public Company a termination fee of $2 million upon 450,000 (the earliest to occur of any of “Private Company Termination Fee”) in the following eventsevent that this Agreement is terminated:
(i) the termination of this Agreement by Parent Public Company pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a8.1(e); or
(iiiii) the termination of this Agreement by the either Public Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) Private Company, as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stockapplicable, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b8.1(b), (c8.1(g) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b8.1(j), so long as (cA) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, any Person makes an Acquisition Proposal or amends an Acquisition Proposal made prior to the date of this Agreement with respect to Private Company; and (B) within 12 months after such termination Private Company enters into a definitive agreement to consummate, or consummates, any Acquisition Proposal (regardless of whether made before or after the termination of this Agreement); provided that for purposes of this Section 8.3(b)(iii), the references to 15% in the definition of Acquisition Proposal shall be deemed to be 50%.
(c) Public Company shall pay Private Company a termination fee of $300,000 (the “Public Company Termination Fee”) in the event of the termination of this Agreement:
(i) by Private Company pursuant to Section 8.1(f);
(ii) by Public Company pursuant to Section 8.1(i); or
(iii) by Public Company or Private Company, as applicable, pursuant to Sections 8.1(b) or 8.1(h), so long as (A) prior to the termination of this Agreement, any Person makes an Acquisition Proposal or amends an Acquisition Proposal made prior to the date of this Agreement with respect to Public Company; and (B) within 12 months after such termination Public Company enters into a definitive agreement to consummate, or consummates, any Acquisition Proposal (regardless of whether made before or after the termination of this Agreement); provided that for purposes of this Section 8.3(c)(iii), the references to 15% in the definition of Acquisition Proposal shall be deemed to be 50%.
(d) Any fee due under Section 8.3(b)(i) or 8.3(c)(i) shall be paid by wire transfer of same-day funds within two Business Days after the date of termination of this Agreement. Any fee due under Section 8.3(b)(ii) or 8.3(c)(ii) shall be paid by wire transfer of same-day funds on or before the date of termination of this Agreement. Any fee due under Section 8.3(b)(iii) or 8.3(c)(iii) shall be paid by wire transfer of same-day funds within two Business Days after the date on which the transaction referenced in clause (B) of such Section 8.3(b)(iii) or Section 8.3(c)(iii), as applicable, is consummated. If one party fails to promptly pay to the other any fee due under this Section 8.3, the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime rate of Bank of America, N.A. plus five percent per annum, compounded quarterly, from the date such fee was required to be paid.
(e) In no event shall Private Company be required to pay the Private Company Termination Fee on more than one occasion, nor shall Public Company be required to pay the Public Company Termination Fee on more than one occasion, in each case whether or not such fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events.
(f) The parties hereto acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, and that the parties hereto would not enter into this Agreement absent such agreements. Notwithstanding Section 8.2 or any other provision of this Agreement, payment of the fees described in this Section 8.3 shall constitute the sole and exclusive remedy of Public Company or Private Company, as applicable in connection with any termination of this Agreement in the circumstances in which such fees became payable. In the event that Public Company or Private Company shall receive the payment of a fee described in this Section 8.3, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the party to receive the fees or expenses was in material breach such fee and any of its obligations under Affiliates in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and neither the party receiving such fee nor any of its Affiliates, shall be entitled to bring or maintain any other claim, action or proceeding against the party paying such fee or any of its Affiliates arising out of this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Dare Bioscience, Inc.), Stock Purchase Agreement (Cerulean Pharma Inc.)
Fees and Expenses. (a) Except as set forth provided in subsection (b) of this Section 11.1 11.5(b), whether or as otherwise provided hereinnot the Offer or the Merger is consummated, all fees costs 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 .
(1) To compensate Purchaser and its affiliates for entering into this Agreement and taking action to consummate the Merger is consummated; provided, however, that Parent shall pay 100% of all fees transactions hereunder and incurring the costs and expenses related thereto and other losses and expenses, including the forgoing by Purchaser of other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (togetheropportunities, the "Proxy Expenses"); provided further, however, Company and Purchaser agree that the Company shall pay 100% of to Purchaser, an aggregate amount equal to $12,000,000 (the Proxy Expenses in the event the Merger "Commitment Amount") if this Agreement is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
terminated (i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(e); (ii) by Purchaser (x) pursuant to Section 10.1(f) based on (unless the event described therein occurs solely as a result of Purchaser's willful breach in any material respect of its representations, warranties, covenants or agreements set forth in this Agreement) or (y) pursuant to Section 10.1(d)(iii) because of the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
paragraph (d) Parent shall pay of Exhibit A as a result of the Company a fee Company's willful breach of $2 million upon termination of its representations or warranties set forth in this Agreement by the Company Agreement; or (iii) pursuant to Section 10.1(e10.1(d)(iii) after at a Breach by Parent of this Agreement, or pursuant to Section 10.1(ftime when the Minimum Condition shall not have been satisfied and (x) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses prior to the othertime this Agreement is terminated, if, immediately prior to an Alternative Proposal shall have been publicly announced by a party other than Purchaser or shall have been publicly known and (y) within nine months after the termination of this Agreement, such party or any affiliate thereof either alone or as part of a "group" (as defined in the party Exchange Act) acquires a majority of the outstanding shares of Common Stock (a "Stock Acquisition"). The Commitment Amount shall be payable (x) at the time of termination if such amount becomes payable pursuant to receive clause (i) above, (y) on the fees or expenses was in material breach next business day following termination if such Amount becomes payable pursuant to clause (ii) above, and (z) on the next business day following the occurrence of its obligations under this Agreementa Stock Acquisition, if such amount becomes payable pursuant to clause (iii) above.
Appears in 2 contracts
Samples: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all All fees and expenses incurred in connection with the Merger, this Agreement Agreement, and the transactions contemplated hereby by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon Notwithstanding the earliest to occur of any of the following eventsforegoing, if:
(i) the termination of (A) Either Company or Purchaser terminates this Agreement by Parent pursuant to 8.1(c) (without the Company Shareholder Approval having been obtained), Purchaser terminates pursuant to Section 10.1(d8.1(d) (as a result of a Willful Breach by Company)(B) prior to termination, there has been publicly announced an Acquisition Proposal or any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) shall have communicated to Company or its shareholders an Acquisition Proposal (whether or not conditional);
, or an intention (iiwhether or not conditional) to make an Acquisition Proposal, and (C) within twelve months of such termination Company shall either (1) consummate an Acquisition Transaction or (2) enter into any definitive agreement relating to any Acquisition Transaction (but not including any confidentiality agreement required by Section 6.7(b) (an “Acquisition Agreement”)) with respect to an Acquisition Transaction or Acquisition Proposal, whether or not such Acquisition Transaction or Acquisition Proposal is subsequently consummated (but changing, in the termination case of this Agreement by Parent pursuant (1) and (2), the references to Section 10.1(athe “25%” and “75%” amounts in the definition of Acquisition Transaction and Acquisition Proposal to “50%”); or
(iiiii) the termination of (A) Either Company or Purchaser terminates this Agreement by the Company or Parent pursuant to Section 10.1(g8.1(g) and (B) within six months of such termination Company shall either (1) consummate an Acquisition Transaction or (2) enter into any Acquisition Agreement with respect to an Acquisition Transaction or Acquisition Proposal, whether or not such Acquisition Transaction or Acquisition Proposal is subsequently consummated (but changing, in the case of (1) and (2), the references to the “25%” and “75%” amounts in the definition of Acquisition Transaction and Acquisition Proposal to “50%”)
(iii) Purchaser terminates this Agreement pursuant to Section 8.1(e); then Company shall pay to Purchaser an amount equal to Three Million, Seven Hundred and Fifty Thousand and 00/100 Dollars ($3,750,000.00) (the “Termination Fee”). If the Termination Fee shall be payable pursuant to subsection (b)(i) of this Section 8.3, the Termination Fee shall be paid in same-day funds at or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of an Acquisition Agreement with respect to such Acquisition Transaction or Acquisition Proposal. If the Termination Fee shall be payable pursuant to subsection (b)(ii) of this Section 8.3, the Termination Fee shall be paid in same-day funds immediately upon delivery of the written notice of termination required by Section 8.1.
(c) The parties acknowledge that the agreements contained in paragraph (b) of this Section 8.3 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, they would not enter into this Agreement; accordingly, if Company fails to pay promptly any fee payable by it pursuant to this Section 8.3, then Company shall pay Parent a fee of $500,000 upon to Purchaser, Purchaser’s costs and expenses (including attorneys’ fees, costs and expenses) in connection with collecting such fee, together with interest on the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result amount of the failure to receive fee at the requisite approval prime rate of the Company's outstanding Common Stock or Preferred StockCitibank, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months N.A. from the date of such payment was due under this Agreement until the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority date of AMVC Common Stock is acquired by a third party in a tender offerpayment.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Emclaire Financial Corp), Merger Agreement (Emclaire Financial Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Subject to Section 11.1 or as otherwise provided herein5.5(c), all fees fees, costs and expenses incurred in connection with this Agreement Agreement, the Merger and the other transactions contemplated hereby shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, that Parent and Company shall pay 100% of share equally all fees and expenses, expenses (other than the fees and expenses of attorneys and accountants fees (as to which each party shall bear its own expenses), accountants) incurred in connection with the printing and filing of with the SEC the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockthereto.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following events:
event (i) this Agreement is terminated pursuant to Section 7.1(b)(i), 7.1(b)(iii), or 7.1(c) and at or prior to such termination (w) Parent and Merger Sub shall not have breached this Agreement in any material respect, (x) a Takeover Proposal shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal, (y) such Takeover Proposal or intention has not been withdrawn, and (z) within six (6) months following the termination of this Agreement a Takeover Proposal is consummated, (ii) Parent terminates this Agreement pursuant to Section 7.1(d), or (iii) the Company terminates this Agreement pursuant to Section 7.1(f), then the Company shall pay to Parent a fee in the amount $1,250,000 (the “Termination Fee”) by wire transfer of same day funds to an account designated by Parent.
(c) The Company shall reimburse Parent for all reasonable out-of-pocket fees and expenses of Parent incurred in connection with the transactions contemplated by this Agreement (including without limitation fees and expenses of Parent’s counsel, accountants and financial advisors), upon the termination of this Agreement (i) by Parent pursuant to Section 10.1(d);
7.1(c) or 7.1(d) or (ii) by the Company pursuant to Section 7.1(f); provided, however, that in the event a Termination Fee is payable pursuant to Section 5.5(b), the aggregate amount of fees and expenses payable by the Company pursuant to this Section 5.5(c) shall be limited to $350,000.
(d) In case of termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iiii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g7.1(b)(i).
(c, 7.1(b)(iii) The or 7.1(c), the Termination Fee, if applicable, shall be paid by the Company shall pay Parent a fee upon consummation of $500,000 upon the transaction contemplated by the applicable Takeover Proposal, and, in the case of termination of this Agreement pursuant to Section 7.1(c), the fees and expenses of Parent shall be paid within two Business Days of such termination, (ii) by Parent or the Company pursuant to Section 10.1(c7.1(f), the Termination Fee shall be paid by the Company prior to or upon the termination, and the fees and expenses of Parent shall be paid within two Business Days of such termination, (ii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure 7.1(d), the Termination Fee, if applicable, and any fees and expenses of the condition in Section 7.5, or Parent shall be paid by the Company within two Business Days after such termination. The Company acknowledges that the agreements contained in this Section 5.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay the amounts due pursuant to this Section 10.1(f) based on 5.5 pursuant to the failure of terms herein, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the condition Company for the amounts set forth in this Section 8.65.5, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay to Parent interest on the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions amounts set forth in Sections 8.1 through 8.4.
this Section 5.5 at a rate per annum equal to the lesser of (ei) The fees payable pursuant to Sections 11.1(b)eight percent (8%) per annum, and (cii) or 11.1(d) shall be paid within one business day after the first to occur maximum non-usurious rate of the events described in Sections 11.1(b), (c) or 11.1(d)interest, as the case in effect from time to time, which may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations collected under this Agreementapplicable law.
Appears in 2 contracts
Samples: Merger Agreement (Autonomy Corp PLC), Merger Agreement (Virage Inc)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or as otherwise provided hereinnot the Mergers are consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses, whether or not the Merger is consummated; providedexcept as provided in Sections 2.1, however5.4, that Parent shall pay 100% of all fees 5.6 and expenses, other than attorneys 5.8 and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockthis Article VIII.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of If this Agreement is terminated by Parent pursuant to Section 10.1(d7.1(e);, then the Company shall pay to Parent a termination fee in the amount of U.S. $85.0 million (the “Termination Fee”).
(c) If this Agreement is terminated by the Company pursuant to Section 7.1(f), then Parent shall pay to the Company the Termination Fee.
(d) (i) if this Agreement is terminated by either party pursuant to Section 7.1(b)(iii), then the Company shall pay to Parent an amount of U.S. $20.0 million as a reasonable estimate of Parent’s expenses, and (ii) the termination of if this Agreement is terminated by Parent either party pursuant to Section 10.1(a7.1(b)(iv); or, then Parent shall pay to the Company an amount of U.S. $20.0 million as a reasonable estimate of the Company’s expenses.
(iiie) In the termination event that (i) (x) an Acquisition Proposal with respect to the Company has been publicly proposed by any Person (other than Parent, Merger Sub I or Merger Sub II, or any of their respective affiliates) or any Person publicly has announced its intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or an Acquisition Proposal with respect to the Company or such intention has otherwise become known to the Company’s stockholders generally (other than as a result of disclosure by the Parent, any of its Subsidiaries or any of their respective Representatives) and (y) thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 10.1(g7.1(b)(i) or 7.1(b)(iii).
, and (cii) The within 12 months after the termination of this Agreement, the Company or any of its Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal with respect to the Company, or an Acquisition Proposal with respect to the Company is consummated, the Company shall pay Parent a fee of $500,000 the Termination Fee upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(bthis clause (ii) (less the amount of any payment previously made by the Company pursuant to Section 8.1(d)(i)).
(f) In the event that (i)(x) an Acquisition Proposal with respect to Parent has been publicly proposed by any Person (other than the Company or any of its affiliates) or any Person publicly has announced its intention (whether or not conditional) to make an Acquisition Proposal with respect to Parent or an Acquisition Proposal with respect to Parent or such intention has otherwise become known to Parent’s stockholders generally (other than as a result of disclosure by the Company, any of its Subsidiaries or any of their respective Representatives) and (y) thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(i) or 7.1(b)(iv), and (cii) within 12 months after the termination of this Agreement, Parent or 11.1(dany of its Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal with respect to Parent, or an Acquisition Proposal with respect to Parent is consummated, Parent shall pay the Company the Termination Fee upon the first to occur of the events described in this clause (ii) (less the amount of any payment previously made by Parent pursuant to Section 8.1(d)(ii)).
(g) Notwithstanding anything in this Agreement to the contrary, in the event that (A) Parent takes any action to defeat or otherwise seek to forestall an unsolicited hostile Acquisition Proposal with respect to Parent (other than any action permitted to be taken under Section 5.3), which action (x) is in breach or violation of any of Parent’s material obligations under this Agreement and (y) results in any of the conditions to the Mergers set forth in Section 6.1 not being satisfied and thereafter the Company terminates the Agreement pursuant to Section 7.1(c) in respect of such action, or (B) Parent terminates the Agreement pursuant to Section 7.1(g), then, upon such termination by the Company or Parent, as the case may beCompany’s sole and exclusive remedy, Parent shall pay to the Company the Termination Fee as liquidated damages, and for the avoidance of doubt, no other fees, expenses payable pursuant to Section 11.1(a) or damages shall be paid within five business days after receipt of written documentation of the amount of expenses so payablepayable by Parent in respect thereof; provided, however, that in no event such Termination Fee is not intended and shall Parent not be an admission or the Company, as the case may be, be required to pay acknowledgement that such fees or expenses amount is equal to the otherdamages sustained by the Company as a result of any intentional breach of this Agreement by Parent that is not described in this Section 8.1(g).
(h) Any payment required pursuant to Section 8.1(b), if(c), (d) or (g) shall be made within one Business Day after termination of this Agreement by wire transfer of immediately available funds to an account designated by the party entitled to such payment. Any payment of the Termination Fee pursuant to Section 8.1(e) or (f) shall be made prior to the first to occur of the execution of a definitive agreement providing for an Acquisition Proposal or the consummation of an Acquisition Proposal. Each party acknowledges that the agreements contained in this Section 8.1 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if either party fails promptly to pay or cause to be paid the amounts due from it pursuant to this Section 8.1, and, in order to obtain such payment, the other party commences a suit that results in a judgment for the amounts set forth in this Section 8.1, the defaulting party shall pay to the other party its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit and any appeal relating thereto, together with interest on the amounts set forth in this Section 8.1 from the date payment was due at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.
(i) For purposes of Sections 8.1(e), 8.1(f) and 8.1(g), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j), except that all references to “15%” therein shall be deemed to be references to “40%.”
(j) This Section 8.1 shall survive any termination of this Agreement, the . In no event shall either party be entitled to receive the fees or expenses was in material breach of its obligations under this AgreementArticle VIII more than an aggregate amount equal to the Termination Fee.
Appears in 2 contracts
Samples: Merger Agreement (General Geophysics Co), Merger Agreement (Veritas DGC Inc)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein9.03, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsIf this Agreement is terminated:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii9.01(g)(ii) or Section 9.01(g)(iv) or the termination of this Agreement by Parent Company pursuant to Section 10.1(a9.01(h), then the Company shall pay to Parent the Termination Fee (unless the Termination Fee is the Go-Shop Termination Fee, in which case the Company shall pay the Go-Shop Termination Fee); or
(iiiii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(cA) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement (1) by Parent or the Company pursuant to Section 10.1(c9.01(f) and, prior to the Company Stockholders’ Meeting, a Company Acquisition Proposal shall have been publicly announced and shall not have been publicly withdrawn as a result of the failure date five (5) Business Days prior to receive the requisite approval date of the Company's outstanding Common Stock or Preferred StockCompany Stockholders’ Meeting, or (2) by Parent pursuant to Section 10.1(b9.01(d), Section 9.01(g)(i) based or Section 9.01(g)(iii) and, at or prior to the date of termination, a Company Acquisition Proposal shall have been publicly disclosed or announced, and not withdrawn, and (B) on a failure or prior to the one year anniversary of the condition date of the termination of this Agreement, the Company enters into a definitive agreement to consummate, or consummates, a Company Acquisition Proposal, then the Company shall pay to Parent the Termination Fee (unless the Termination Fee is the Go-Shop Termination Fee, in which case the Company shall pay the Go-Shop Termination Fee). (For purposes of this Section 9.03(b)(ii), references to “20%” in the definition of “Company Acquisition Proposal” shall be deemed to be references to 50%); or
(iii) by Parent pursuant to Sections 9.01(d), (g) or (h), the Company shall pay to Parent the aggregate amount of all reasonable and documented out-of-pocket fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) actually incurred by or on behalf of Parent on or prior to the date of such termination in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger up to a maximum amount of $7,900,000.00 in the aggregate (the “Parent Expenses”). Payment of the Parent Expenses shall be made within three (3) Business Days after Parent provides the Company with appropriate documentation of such fees and expenses.
(c) In the event of termination of this Agreement by Parent, the Termination Fee shall be paid by the Company as directed by Parent in writing in immediately available funds within three (3) Business Days after the date of the event giving rise to the obligation to make such payment. In the event of termination of this Agreement by the Company, the Termination Fee shall be paid by the Company within two (2) Business Days after the date of termination as directed by Parent in writing in immediately available funds.
(d) If this Agreement is terminated by the Company pursuant to (i) Section 9.01(e)(i) or Section 9.01(e)(ii) and at the time of such termination there is no state of facts or circumstances that would reasonably be expected to cause the conditions in Section 7.58.01, Section 8.02(a) or Section 8.02(b) not to be satisfied on the Outside Date, or (ii) Section 9.01(e)(iii), then Parent shall pay to the Company the Parent Termination Fee within three (3) Business Days after the date of termination.
(e) If this Agreement is terminated by the Company pursuant to Section 10.1(f9.01(e), then Parent shall pay to the Company the aggregate amount of all reasonable and documented out-of-pocket fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) based actually incurred by or on behalf of the Company on or prior to the date of such termination in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger up to a maximum amount of $7,900,000.00 in the aggregate (the “Company Expenses”). Payment of the Company Expenses shall be made within three (3) Business Days after the Company provides Parent with appropriate documentation of such fees and expenses.
(f) The parties agree and understand that payment of the Parent Termination Fee and/or the Company Expenses (as the case may be) shall constitute liquidated damages in a reasonable amount that will compensate the Company, and that payment of the Termination Fee and/or the Parent Expenses (as the case may be) shall constitute liquidated damages in a reasonable amount that will compensate the Buyer Parties, in each case, for the respective efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision.
(i) Notwithstanding anything to the contrary in this Agreement, the Company’s right to terminate and receive the Parent Termination Fee and/or Company Expenses (as the case may be) shall be the sole and exclusive remedy of the Company against Parent, Merger Sub, Guarantor and their respective Representatives (including their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents) for the loss or damage suffered as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement by Parent or Merger Sub and the failure of the condition set forth transactions contemplated hereby to be consummated, and upon payment of such amount, none of Parent, Merger Sub, Guarantor or any of their respective Representatives (including their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents) shall have any further liability or obligation relating to or arising out of this Agreement, the Limited Guaranty or the transactions contemplated hereby or thereby. In no event, whether or not this Agreement shall have been terminated, shall the Company be entitled to monetary damages in Section 8.6excess of $23,700,000.00 in the aggregate, inclusive of the Parent Termination Fee, if applicable, for all losses and damages arising from or in any such event within 24 months from the date connection with breaches of this Agreement by Parent or Merger Sub or otherwise relating to or arising out of this Agreement or the Company enters into an agreement to be acquired transactions contemplated by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerthis Agreement.
(dii) Upon the Parent Termination Fee becoming payable under this Section 9.03, the amount of the Parent Termination Fee to be paid by Parent shall pay be reduced by any amounts of Company Expenses previously paid by Parent to the Company.
(iii) Notwithstanding anything to the contrary in this Agreement, the Parent’s right to terminate and receive the Parent Expenses and/or the Termination Fee, or, alternatively, as applicable, the Go-Shop Termination Fee, (as the case may be) shall be the sole and exclusive remedy of the Parent or Merger Sub against the Company and its respective Representatives (including their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents) for the loss or damage suffered as a fee result of the breach of any representation, warranty, covenant or agreement contained in this Agreement by the Company and the failure of the transactions contemplated hereby to be consummated, and upon payment of such amount, none of the Company or its respective Representatives (including their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents) shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby or thereby. In no event, whether or not this Agreement shall have been terminated, shall Parent be entitled to monetary damages in excess of $2 million upon termination 23,700,000.00 in the aggregate, inclusive of the Termination Fee, or alternatively, if applicable, the Go-Shop Termination Fee, if applicable, for all losses and damages arising from or in connection with breaches of this Agreement by the Company pursuant or otherwise relating to Section 10.1(e) after a Breach by Parent or arising out of this Agreement or the transactions contemplated by this Agreement. Upon the Termination Fee, or pursuant to or, alternatively, if applicable, the Go-Shop Termination Fee, becoming payable under this Section 10.1(f) based upon a failure 9.03, the amount of the conditions set forth in Sections 8.1 through 8.4Termination Fee or the Go-Shop Fee (as the case may be) to be paid by the Company shall be reduced by any amounts of Parent Expenses previously paid by the Company to Parent.
(eg) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur Each of the events described Company and Parent acknowledges that the agreements contained in Sections 11.1(b)this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Company shall fail to pay the Termination Fee or the Parent Fees when due or Parent shall fail to pay the Company Expenses or the Parent Termination Fee when due, (c) and the Company or 11.1(d)Parent, as the case may be, shall reimburse the other party for all reasonable costs and expenses actually incurred or accrued by such other party (including reasonable fees and expenses of counsel) in connection with the expenses collection under and enforcement of this Section 9.03. If payable, none of the Termination Fee, the Company Expenses, the Parent Termination Fee or the Parent Expenses shall be payable more that once pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (PRA International), Merger Agreement (PRA International)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein8.3, all fees and expenses incurred in connection with this Agreement Agreement, the Offer, the Merger and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Offer or the Merger is consummated; provided, howeverexcept that all filing fees paid in respect of the HSR Act shall be paid by Parent, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), the expenses incurred in connection with the filing, printing and filing mailing of the Proxy Statement/Prospectus Schedule TO and the Offer Documents (including any preliminary materials relating theretoapplicable SEC filing fees) shall be paid by Parent and the S-4 Registration Statement expenses incurred in connection with the filing, printing and mailing of the Schedule 14D-9 (including financial statements and exhibitsapplicable SEC filing fees) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved be paid by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following eventsevent that:
(i) this Agreement is terminated by either Parent or the termination Company pursuant to Section 8.1(b)(i) and (A) at any time after the date of this Agreement by Parent pursuant and prior to the termination under Section 10.1(d8.1(b)(i), an Acquisition Proposal shall have been communicated to the Company Board or any executive Officer of the Company or shall have been publicly announced or publicly made known to the stockholders of the Company, and not withdrawn prior to such termination under Section 8.1(b)(i) and (B) within 12 months after such termination, the Company shall have entered into a definitive agreement with respect to, or shall have consummated, an Acquisition Proposal (provided, that for purposes this Section 8.3(b)(i), the references to “15% or more” in the definition of Acquisition Proposal shall be deemed to be references to “more than 50%”);
(ii) the termination of this Agreement is terminated by Parent the Company pursuant to Section 10.1(a8.1(d)(ii); or
(iii) the termination of this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g)8.1(c)(ii) then, in any such case, the Company shall pay Parent the Termination Fee, it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) The Company Payment of the Termination Fee, if applicable, shall pay Parent a fee be made by wire transfer of $500,000 upon immediately available funds to the termination of this Agreement account or accounts designated by Parent (i) on the earlier of the execution of a definitive agreement with respect to or consummation of, any transaction contemplated by an Acquisition Proposal, as applicable, in the case of a Termination Fee payable pursuant to Section 8.3(b)(i), (ii) concurrently with such termination, in the case of a termination by the Company pursuant to Section 10.1(c8.1(d)(ii) or (iii) as promptly as reasonably practicable after termination (but in no event later than two Business Days after termination), in the case of termination by Parent pursuant to Section 8.1(c)(ii).
(d) Payment of the Termination Fee from or on behalf of the Company shall (i) be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Omron, Parent, Merger Sub, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for the termination giving rise to payment of such Termination Fee and (ii) subject to the rights and remedies available to Omron, Parent and Merger Sub pursuant to and under each of the circumstances described in Section 8.2(b), be the sole and exclusive remedy of Omron, Parent and Merger Sub against the Company, its Subsidiaries and each of their respective directors, officers, employees, agents, general and limited partners, managers, members, stockholders and Affiliates (each, a “Company Party”) for any loss or damage suffered as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock Merger to be consummated or Preferred Stockfor a breach or failure to perform hereunder, and no Company Party shall have any other liability or by Parent pursuant obligation relating to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date arising out of this Agreement or the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4transactions contemplated hereby.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after Company acknowledges that the first to occur agreements contained in this Section 8.3 are an integral part of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of transactions contemplated by this Agreement, the party to receive the fees or expenses was in material breach of its obligations under and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails promptly to pay any amounts due pursuant to this Section 8.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amounts set forth in this Section 8.3, the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts due pursuant to this Section 8.3 from the date such payment was required to be made until the date of payment, compounded quarterly, at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (Adept Technology Inc), Merger Agreement (Omron Corp /Fi)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 9.04, whether or as otherwise provided hereinnot the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether cost or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockexpense.
(b) The Company shall pay will pay, or cause to be paid to Parent a fee by wire transfer of immediately available funds to an account designated by Parent, in accordance with Section 9.04(c), the sum of $2 11.0 million upon the earliest to occur of any of the following eventsif:
(i) the termination of this Agreement by Parent is terminated pursuant to Section 10.1(d);
(ii8.01(e) the termination of this Agreement by Parent pursuant to or Section 10.1(a8.01(f); or
(iiiii) this Agreement is terminated pursuant to Section 8.01(h) and, with respect to this clause (ii) only, at the time of such termination (x) the termination Minimum Condition has not been satisfied, (y) an Acquisition Proposal existed or had been previously announced and (z) prior to the nine-month anniversary of this Agreement by such termination, the Company or Parent pursuant to Section 10.1(g)any of its Subsidiaries consummates any Acquisition Proposal.
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company Any amounts payable pursuant to Section 10.1(c9.04(b) as a result (i) shall be payable on the earlier of (i) the failure to receive 90th day after such termination and (ii) concurrently with the requisite approval consummation of the Company's outstanding Common Stock or Preferred Stock, or by Parent an Acquisition Proposal. Any amounts payable pursuant to Section 10.1(b9.04(b)(ii) based on a failure shall be payable concurrently with the consummation of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerAcquisition Proposal.
(d) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Subsidiary would not have entered into this Agreement. Accordingly, if the Company fails to pay promptly any amounts due pursuant to this Section 9.04, and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee or expense reimbursement set forth in this Section 9.04, the Company shall pay to Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest from the Company a fee date of $2 million upon termination of this Agreement by on the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure amounts so owed at the lesser of the conditions set forth prime rate of Chase Manhattan Bank per annum in Sections 8.1 through 8.4.
(e) The fees payable pursuant effect from time to Sections 11.1(b)time during such period, (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b)plus 2% or, (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreementif lower, the party to receive the fees or expenses was in material breach of its obligations under this Agreementmaximum rate permitted by Law.
Appears in 2 contracts
Samples: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
Fees and Expenses. (a) Except as otherwise set forth in subsection (b) of this Section 11.1 or as otherwise provided herein10.03, 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 Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company In the event this Agreement shall pay Parent a fee of $2 million upon the earliest to occur of any of the following eventsbe terminated:
(i) by the termination of this Agreement by Parent Company pursuant to Section 10.1(d10.01(h);, the Company shall pay to Parent the Termination Fee; or
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c10.01(b) as or Section 10.01(d) or Section 10.01(i) if (A) at or prior to the Termination Date, a result of Company Acquisition Proposal shall have been publicly announced (and not withdrawn) prior to such date and (B) concurrently with such termination or within twelve (12) months following the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred StockTermination Date, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an a definitive agreement to consummate or consummates such Company Acquisition Proposal, then the Company shall pay to Parent the Termination Fee if and when the entering into of such definite agreement or consummation of such Company Acquisition Proposal occurs. For purposes of this Section 10.03(b)(ii), “50%” shall be acquired substituted for “20%” in the phrases dealing with assets and “50%” shall be substituted for “20%” in phrases dealing with equity securities or voting power in the definition of Company Acquisition Proposal.
(c) If a Termination Fee is payable pursuant to Section 10.03(b), the Company shall pay Parent (by any third party wire transfer of immediately available funds), if pursuant to Section 10.03(b)(i), on the Termination Date concurrently with such termination and if pursuant to Section 10.03(b)(ii), within two (including any current AMVC shareholder2) or a majority Business Days after the date of AMVC Common Stock is acquired by a third party in a tender offerthe event giving rise to the obligation to make such payment.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent For purposes of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4“Termination Fee” means $450 million.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Medimmune Inc /De), Merger Agreement (Astrazeneca PLC)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein, all fees and expenses incurred in connection with this Agreement the Merger and the transactions contemplated hereby other Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated; provided, however, except that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), expenses incurred in connection with the filing, printing and filing mailing the Proxy Statement and all fees and expenses incurred in connection with obtaining any of the Proxy Statement/Prospectus (including Required Antitrust Filings or obtaining any preliminary materials relating thereto) other consents or approvals from third parties necessary for Closing shall be borne 50% by Parent and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 10050% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay to Parent a nonrefundable fee of $2 million upon 100,000,000 (the earliest to occur of any of the following events:
“Company Termination Fee”) if: (i) the termination of Company terminates this Agreement by Parent pursuant to Section 10.1(d8.01(f);
; (ii) (A) any Person makes a Company Takeover Proposal (except that references in the termination definition of “Company Takeover Proposal” to “20%” shall be replaced by “50%”) (a “Qualifying Transaction”) and thereafter Parent terminates this Agreement by Parent pursuant to Section 10.1(a)8.01(c) or the Company terminates this Agreement pursuant to Section 8.01(b)(i) at a time when Parent had the right to terminate this Agreement pursuant to Section 8.01(c) and (B) within twelve (12) months of such termination the Company consummates, or enters into a definitive agreement to consummate and subsequently consummates, a Qualifying Transaction; or
(iii) the termination of Parent terminates this Agreement by pursuant to Section 8.01(d); (iv) the Company or Parent terminates this Agreement pursuant to Section 10.1(g8.01(b)(i) at a time at which Parent had the right to terminate this Agreement pursuant to Section 8.01(d); or (v) (A) any Person makes a Company Takeover Proposal for a Qualifying Transaction that was publicly disclosed before the Company Stockholders Meeting but not publicly withdrawn by the date of the Company Stockholders Meeting and thereafter this Agreement is terminated pursuant to Section 8.01(b)(iii) and (B) within twelve (12) months of such termination the Company consummates, or enters into a definitive agreement to consummate and subsequently consummates, a Qualifying Transaction; provided, however, that in the event the Company terminates this Agreement pursuant to Section 8.01(f) or Parent terminates this Agreement pursuant to Section 8.01(d)(i), in each case either (A) prior to the No-Shop Period Start Date in connection with the Company’s receipt of a Superior Company Proposal, Company Takeover Proposal or Qualifying Transaction (as applicable) or (B) before 9:00 a.m. New York City time on the fifth (5th) day after the No-Shop Period Start Date (the “Cut-Off Time”) in connection with a Superior Company Proposal from an Excluded Party, the Company Termination Fee shall instead be an amount equal to $60,000,000. The Company Termination Fee shall be paid by wire transfer to an account to be specified by Parent of same-day funds on the date of termination pursuant to clause (i) above, within two (2) Business Days after termination pursuant to clause (iii) or (iv) above, or on the date of the consummation of such transaction in the case of termination pursuant to clause (ii) or (v) above. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(c) The If the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii), the Company shall pay to Parent, by wire transfer to the account specified in Schedule 6.06(b) of same-day funds within two (2) Business Days after such termination, an amount equal to that required to reimburse Parent, Merger Sub and their respective Affiliates for all reasonable out-of-pocket fees and expenses incurred in connection with this Agreement and the Transactions (the “Parent a fee of Expenses”), it being understood that in no event shall payment for the Parent Expenses under this Section 6.06(c) exceed $500,000 upon 25,000,000; provided that in the termination event that the Company Termination Fee shall subsequently become payable pursuant to clause (iv) of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock6.06(c), or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or any amount previously paid by the Company pursuant to Section 10.1(f) based on the failure in respect of the condition set forth in Section 8.6, if in any such event within 24 months from Parent Expenses shall be credited against the date amount of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerTermination Fee.
(d) Parent shall pay the Company a nonrefundable fee of $2 million upon termination of 190,000,000 (the “Reverse Termination Fee”) in the event that this Agreement is terminated (i) by the Company pursuant to Section 10.1(e8.01(e) after a Breach or Section 8.01(g) or (ii) by the Company or Parent of this Agreement, or pursuant to Section 10.1(f8.01(b)(i) based upon at a failure time at which the Company had the right to terminate this Agreement pursuant to Section 8.01(e) or Section 8.01(g). Any fee due under this Section 6.06(d) shall be paid by wire transfer to the account specified in Schedule 6.06(d) of same-day funds within two (2) Business Days after termination as contemplated in the conditions set forth in Sections 8.1 through 8.4foregoing sentence. In no event shall Parent be required to pay the Reverse Termination Fee on more than one occasion.
(e) If the Company fails to promptly pay the Company Termination Fee or the Parent Expenses when due pursuant to Section 6.06(b) or Section 6.06(c) or Parent fails to promptly pay the Reverse Termination Fee when due pursuant to Section 6.06(d), and, in order to obtain such payment, Parent, on the one hand, or the Company, on the other hand, commences a suit that results in a final and non-appealable judgment against the Company for the amount due pursuant to Section 6.06(b) or Section 6.06(c) or a final and non-appealable judgment against Parent for the amount set forth in Section 6.06(d), the Company shall pay to Parent, or Parent shall pay to the Company, as applicable, its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) in connection with such suit, together with interest on such amount or portion thereof at the prime lending rate prevailing during such period as published in The fees Wall Street Journal, Eastern Edition, calculated on a daily basis from the date such amounts were required to be paid to the date of actual payment (any such amount, the “Termination Expenses and Interest”). Any amount payable pursuant to Sections 11.1(b), (c) or 11.1(dthis Section 6.06(e) shall be paid within one business by the applicable party by wire transfer of same-day after funds prior to or on the first date such payment is required to occur of be made pursuant to such final and non-appealable judgment.
(f) The parties agree that the events described agreements contained in Sections 11.1(b)this Section 6.06 are an integral part hereof and that the Company Termination Fee, (c) or 11.1(d)the Reverse Termination Fee, as the case may be, Parent Expenses and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this AgreementTermination Expenses and Interest constitute liquidated damages and not a penalty.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Anixter International Inc)
Fees and Expenses. (a) In the event that:
(i) (A) an Acquisition Proposal shall have been made to the Company or shall have been made directly to its stockholders generally following the date of this Agreement, and thereafter (B) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) solely as a result of the failure to satisfy the Minimum Condition and (C) the Company consummates a transaction contemplated by any Acquisition Proposal (replacing “20%” in the definition thereof with “50%”) within 12 months of the date this Agreement is terminated;
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(i); or
(iii) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.3(a), the Company shall pay to Parent a termination fee of $2,000,000 (the “Termination Fee”). Any payment of the Termination Fee required to be made pursuant to clause (i) of this Section 7.3(a) shall be made to Parent substantially concurrently with consummation of the transaction contemplated by the Acquisition Proposal referred to therein; any payment of the Termination Fee required to be made pursuant to clause (ii) of this Section 7.3(a) shall be made to Parent promptly following the termination of the Agreement pursuant to Section 7.1(c)(i); and any payment of the Termination Fee required to be made pursuant to clause (iii) of this Section 7.3(a) shall be made at the time provided for in Section 7.1(d)(ii).
(b) In the event that the Termination Fee is payable to Parent pursuant to Section 7.3, then in addition to the Termination Fee, the Company also shall pay to Parent $1,000,000 in reimbursement of out of pocket fees and expenses (including legal and other third party advisors fees and expenses) incurred by Parent and its affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (the “Parent Expenses”). The Company shall pay to Parent the Parent Expenses payable pursuant to this Section 7.3(b) concurrently with the Termination Fee.
(c) All such payments to be made to Parent pursuant to this Section 7.3 shall be made by wire transfer of immediately available funds to an account to be designated by Parent or, if Parent fails to timely designate an account, by cashier’s check payable to the order of Parent delivered to Parent at the address specified in Section 8.3.
(d) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided herein7.3(b), all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stock.
(b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d);
(ii) the termination of this Agreement by Parent pursuant to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable In the event that the Company shall fail to pay the Termination Fee and/or Parent Expenses required pursuant to Sections 11.1(b)this Section 7.3 when due, (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d)such Termination Fee and/or Parent Expenses, as the case may be, and shall accrue interest for the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of period commencing on the amount of expenses so payable; provided, however, that in no event shall date such Termination Fee and/or Parent or the CompanyExpenses, as the case may be, be required became past due, at the rate of interest per annum equal to LIBOR plus 300 basis points from such date to the date of payment. In addition, if the Company shall fail to pay such fees or Termination Fee and/or Parent Expenses, as the case may be, when due, the Company shall also pay to Parent all of Parent’s reasonable costs and expenses (including reasonable attorneys’ fees) in connection with efforts to collect such Termination Fee and/or Parent Expenses, as the othercase may be.
(f) The Company acknowledges that the agreements contained in this Section 7.3 are an integral part of the Agreement and the transactions contemplated hereby and that, ifwithout these agreements, immediately prior to the termination of Parent and Merger Sub would not enter into this Agreement. Each of the Parties acknowledges that the Termination Fee and the Parent Expenses are not penalties, but rather reasonable amounts that will compensate Parent and Merger Sub for the costs, expenses, efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Each of Parent and Merger Sub acknowledges and agrees on behalf of itself and its affiliates that in the event that the Termination Fee and the Parent Expenses become payable and is paid by the Company pursuant to this Section 7.3, except as provided below and except for any amounts payable pursuant to Section 7.3(e), the party right to receive the fees or expenses was in material breach Termination Fee and/or Parent Expenses shall constitute each of its obligations Parent’s and Merger Sub’s and each of their affiliates’ and Representatives’ sole and exclusive remedy under this Agreement; provided, however, that with respect to any termination pursuant to Section 7.1(c)(i)(C), or in the event of a willful or intentional breach of this Agreement or fraud as described in Section 7.2, in addition to the Termination Fee, the Company will not be relieved of any liability for damages to the extent set forth in Section 7.2.
Appears in 2 contracts
Samples: Merger Agreement (Merrimac Industries Inc), Merger Agreement (Crane Co /De/)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 or as otherwise provided hereinin this Section, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether cost or not the Merger is consummated; provided, however, that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved by the holders of the Company's Common Stock and Preferred Stockexpense.
(b) The Company shall pay will pay, or cause to be paid, to Parent by wire transfer of immediately available funds to an account designated by Parent, in accordance with Section 9.04(d), the sum of (x) Parent's Expenses (up to a fee of maximum amount not to exceed $2 3.0 million) and (y) $80.0 million upon the earliest to occur of any of the following events:if: 66
(i) the termination of this Agreement by Parent is terminated pursuant to Section 10.1(d);
(ii8.01(e) the termination of this Agreement by Parent pursuant to or Section 10.1(a8.01(f); or
(iiiii) this Agreement is terminated pursuant to Section 8.01(b) and, with respect to this clause (ii) only, at the time of such termination (w) the termination Minimum Condition has not been satisfied, (x) a bona fide Acquisition Proposal has been previously announced or made known to the Company or an offer commenced and (y) prior to the one year anniversary of this Agreement such termination, the Company or any of its Subsidiaries (I) consummates any Acquisition Proposal regardless of whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in clause (x) or (II) enters into any agreement in principle, arrangement, understanding or contract providing for the implementation of any Acquisition Proposal (other than a capital raising transaction by the Company in the form of an underwritten public offering) regardless of whether or Parent pursuant not such Acquisition Proposal was the same Acquisition Proposal referred to Section 10.1(g)in clause (x) and shall consummate (whether before or after such one year anniversary) such Acquisition Proposal.
(c) The Company Any amounts payable pursuant to Sections 9.04(b)(i) shall pay Parent a fee of $500,000 upon the be payable as promptly as practicable following termination of this Agreement by Parent or (but no more than three Business Days) and, if the Company is the party seeking to terminate this Agreement, as a condition thereto. Any amounts payable pursuant to Section 10.1(c9.04(b)(ii) as a result shall be payable promptly but in no event later than three Business Days after the last of the failure specified events has occurred; provided that for the avoidance of doubt, it is understood and agreed that the last specified event to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent occur in connection with any amount payable pursuant to Section 10.1(b9.4(b)(ii) based on a failure shall be consummation of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerapplicable Acquisition Proposal.
(d) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Subsidiary would not have entered into this Agreement. Accordingly, if the Company fails to pay promptly any amounts due pursuant to this Section 9.04, and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee or expense reimbursement set forth in this Section 9.04, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest from the Company a fee date of $2 million upon termination of this Agreement by on the Company pursuant amounts so owed at the prime rate of Chase Manhattan Bank per annum in effect from time to Section 10.1(e) after a Breach by Parent of this Agreementtime during such period, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4plus 4%.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Brown Tom Inc /De), Agreement and Plan of Merger (Encana Corp)
Fees and Expenses. (a) Except as set forth in subsection (b) of this Section 11.1 Whether or not the Mergers are consummated, except as otherwise specifically provided herein, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Merger Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, except that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as any expenses to which each party shall bear its own expenses), incurred be paid in connection with any additional filings under the printing and filing of the Proxy Statement/Prospectus (including any preliminary materials relating thereto) and the S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"); provided further, however, that Company Antitrust Laws shall pay 100% of the Proxy Expenses in the event the Merger is not approved be paid by the holders of the Company's Common Stock and Preferred Stock.Parent;
(b) The Company shall pay to Parent a fee or its designee the Company Termination Fee, by wire transfer of $2 million upon the earliest immediately available funds to occur of any of the following eventsan account or accounts designated in writing by Parent, as follows:
(i) the termination of if (A) this Agreement by Parent is terminated pursuant to (1) Section 10.1(d);
(ii9.1(b)(i) the termination of this Agreement by Parent pursuant prior to Section 10.1(a); or
(iii) the termination of this Agreement by the Company or Parent pursuant Stockholders Meeting and the conditions in Section 8.1(b) and Section 8.1(f) (with respect to orders, decrees and injunctions under the Antitrust Laws) shall have been satisfied, (2) Section 10.1(g).
9.1(b)(iii) (c) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant relating to Section 10.1(c) as a result of the failure to receive obtain the requisite approval of the Company's outstanding Common Stock or Preferred StockRequired Company Vote), or by Parent pursuant (3) Section 9.1(c)(i) (relating to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from Company’s representations or compliance with covenants); (B) following the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offer.
(d) Parent shall pay the Company a fee of $2 million upon termination of this Agreement by the Company pursuant to Section 10.1(e) after a Breach by Parent of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreement, a proposal for a Company Qualifying Acquisition Transaction shall have been made to the party Company or shall have been made directly to receive the fees stockholders of the Company generally or expenses was shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make such a proposal, in material breach the case of a termination under Section 9.1(b)(iii), and such proposal or announcement of an intention to make such proposal shall not have been publicly withdrawn at least two (2) Business Days prior to the Company Stockholders Meeting; and (C) within twelve (12) months following the termination of this Agreement, the Company enters into an agreement providing for, or consummates, a Company Qualifying Acquisition Transaction (as defined below), then the Company shall pay or cause to be paid the Company Termination Fee to Parent upon the consummation of a Company Qualifying Acquisition Transaction;
(ii) if this Agreement is terminated by Parent pursuant to Section 9.1(c)(ii), then the Company shall pay or cause to be paid the Company Termination Fee to Parent promptly, and in any event not more than two (2) Business Days following such termination; or
(iii) if this Agreement is terminated by the Company pursuant to Section 9.1(d)(iv), then concurrently with (and as a condition to) such termination, the Company shall pay or cause to be paid the Company Termination Fee to Parent.
(iv) As used herein, “Company Qualifying Acquisition Transaction” means any Acquisition Proposal involving (A) 50% or more of the non- “cash or cash equivalent” assets of the Company and its Subsidiaries, taken as a whole; or (B) acquisition by any person (other than Parent or any of its obligations under this AgreementSubsidiaries or Affiliates) of 50% or more of the outstanding shares of Company Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Delek US Holdings, Inc.), Merger Agreement (Alon USA Energy, Inc.)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein7.03, all fees and expenses incurred in connection with this Agreement Agreement, the Offer, the Merger and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Offer or Merger are consummated.
(b) In the event that:
(i) (A) an Acquisition Proposal is publicly disclosed and is not withdrawn (in the case of a termination pursuant to Section 7.01(b)(i) or Section 7.01(d)(i), prior to such termination), (B) this Agreement is terminated by Parent or the Company pursuant to Section 7.01(b)(i) or by Parent pursuant to Section 7.01(d)(i), and (C) within nine (9) months after the date of such termination, the Company enters into a definitive agreement with a third party with respect to an Acquisition Transaction and such Acquisition Transaction is consummated; , or consummates a transaction that constitutes an Acquisition Transaction with a third party (provided, however, that Parent shall pay 100% for purposes of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expensesthis Section 7.03(b)(i), incurred in connection with the printing and filing of the Proxy Statement/Prospectus each reference to “twenty percent (including any preliminary materials relating thereto) and the S-4 Registration Statement 20%)” or “eighty percent (including financial statements and exhibits) and any amendments or supplements thereto (together, the "Proxy Expenses"80%); provided further, however, that Company shall pay 100% of the Proxy Expenses ” in the event the Merger is not approved by the holders definition of the Company's Common Stock and Preferred Stock.
“Acquisition Transaction” shall be deemed to be a reference to “fifty percent (b) The Company shall pay Parent a fee of $2 million upon the earliest to occur of any of the following events:
(i) the termination of this Agreement by Parent pursuant to Section 10.1(d50%)”);
(ii) the termination of this Agreement is terminated by Parent pursuant to Section 10.1(a7.01(d)(ii); or
(iii) the termination of this Agreement is terminated by the Company pursuant to Section 7.01(c)(ii), (iv) then, in any such event, the Company shall pay to Parent a fee of $58,000,000 (the “Termination Fee”), less the amount of Parent Expenses previously paid to Parent (if any) pursuant to Section 7.03(c), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(g7.01(b)(ii) under circumstances in which the Termination Fee is not then payable pursuant to Section 7.03(b)(i).
(c) The , then the Company shall pay reimburse Parent a fee and its Affiliates for all of $500,000 upon their reasonable out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to Parent and Purchaser and their Affiliates) incurred by Parent or Purchaser or on their behalf in connection with or related to the termination authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”), up to a maximum amount of $9,680,000; provided that the payment by Parent or the Company of the Parent Expenses pursuant to this Section 7.03(c), shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 10.1(c7.03(b) as a result of except to the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition extent indicated in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from the date of this Agreement the Company enters into an agreement to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock is acquired by a third party in a tender offerSection.
(d) Payment of the Termination Fee shall be made by wire transfer of same day funds to the accounts designated by Parent shall pay (i) on the Company consummation of any transaction contemplated by an Acquisition Proposal, in the case of a fee Termination Fee payable pursuant to Section 7.03(b)(i), (ii) as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), in the case of $2 million upon a Termination Fee payable pursuant to Section 7.03(b)(ii) or (iii) concurrently with, and as a condition to the effectiveness of, termination of this Agreement by in the Company case of a Termination Fee payable pursuant to Section 10.1(e) after a Breach 7.03(b)(iii). Payment of the Parent Expenses shall be made by wire transfer of same day funds to the accounts designated by Parent within two (2) Business Days after the Company’s having been notified of the amounts thereof by Parent and delivery to the Company of documentation (reasonably satisfactory to the Company) substantiating such fees and expenses. In the event that Parent or its designee shall receive payment pursuant to this Section 7.03(d), the receipt of the Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Purchaser or any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the Offer and the Merger (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Purchaser, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, the Offer, the Merger or any matters forming the basis for such termination; provided, however, that payment of the Termination Fee will not be liquidated damages in the case of common law fraud or a Willful and Material Breach of this Agreement, or pursuant to Section 10.1(f) based upon a failure of the conditions set forth in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(b), (c) or 11.1(d) shall be paid within one business day after Company acknowledges that the first to occur agreements contained in this Section 7.03 are an integral part of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may betransactions contemplated by this Agreement and constitute liquidated damages and not a penalty, and the expenses payable pursuant to Section 11.1(a) shall be paid within five business days after receipt of written documentation of the amount of expenses so payable; providedthat, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses to the other, if, immediately prior to the termination of this Agreementwithout these agreements, the party to receive the fees or expenses was in material breach of its obligations under parties would not have entered into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ignyta, Inc.)
Fees and Expenses. (a) Except as set forth otherwise provided in subsection (b) of this Section 11.1 or as otherwise provided herein9.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby Expenses shall be paid by the party Party incurring such fees or expenses, whether or not the Merger is Mergers are consummated; provided, however, provided that Parent shall pay 100% of all fees and expenses, other than attorneys and accountants fees (as to which each party shall bear its own expenses), incurred in connection with the printing and filing of the Proxy Statement/Prospectus (including Parties will share equally any preliminary materials relating thereto) HSR Act and the Form S-4 Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto (togetherfiling fees, if any, as may be required to consummate the "Proxy Expenses"); provided further, however, that Company shall pay 100% of the Proxy Expenses in the event the Merger is not approved transactions contemplated by the holders of the Company's Common Stock and Preferred Stockthis Agreement.
(b) The Company shall pay Parent a fee of $2 million upon In the earliest to occur of any of the following events:
event that this Agreement is terminated: (i) the termination of this Agreement (A)(x) by Parent REIT II pursuant to Section 10.1(d9.1(d)(i);
, and after the date hereof and prior to the breach or failure to perform giving rise to such right of termination, a bona fide Competing Proposal (ii) the termination with, for all purposes of this Agreement Section 9.3(b)(i), all percentages included in the definition of “Competing Proposal” increased to fifty percent (50%)) has been publicly announced, disclosed or otherwise communicated to the REIT I Board or any Person shall have publicly announced an intention (whether or not conditional) to make such a Competing Proposal or (y) by Parent REIT II or REIT I pursuant to Section 10.1(a); or
9.1(b)(i) (iii) and at the time of such termination of REIT I would not have been entitled to terminate this Agreement by the Company or Parent pursuant to Section 10.1(g).
(c9.1(c)(iv) The Company shall pay Parent a fee of $500,000 upon the termination of this Agreement by Parent or the Company pursuant to Section 10.1(c9.1(b)(iii) as a result of the failure to receive the requisite approval of the Company's outstanding Common Stock or Preferred Stock, or by Parent pursuant to Section 10.1(b) based on a failure of the condition in Section 7.5, or by the Company pursuant to Section 10.1(f) based on the failure of the condition set forth in Section 8.6, if in any such event within 24 months from and after the date of this Agreement Agreement, a Competing Proposal with respect to REIT I has been made to REIT I or publicly announced, disclosed or otherwise communicated to REIT I’s stockholders (and not withdrawn) or any Person shall have publicly announced an intention (whether or not conditional) to make such a Competing Proposal and (B) within twelve (12) months after the Company date of such termination, a transaction in respect of a Competing Proposal with respect to REIT I is consummated or REIT I enters into an a definitive agreement in respect of a Competing Proposal with respect to be acquired by any third party (including any current AMVC shareholder) or a majority of AMVC Common Stock REIT I that is acquired by a third party in a tender offer.
(d) Parent later consummated, REIT I shall pay to REIT II the Company a fee of $2 million upon termination of this Agreement REIT I Termination Payment; (ii) (A)(x) by the Company REIT I pursuant to Section 10.1(e9.1(c)(i), and after the date hereof and prior to the breach or failure to perform giving rise to such right of termination, a bona fide Competing Proposal (with, for all purposes of this Section 9.3(b)(ii), all percentages included in the definition of “Competing Proposal” increased to fifty percent (50%)) has been publicly announced, disclosed or otherwise communicated to the REIT II Board or any Person shall have publicly announced an intention (whether or not conditional) to make such a Competing Proposal or (y) by REIT I or REIT II pursuant to Section 9.1(b)(i) (and at the time of such termination REIT II would not have been entitled to terminate this Agreement pursuant to Section 9.1(d)(iv)) or Section 9.1(b)(iii) and after a Breach by Parent the date of this Agreement, a Competing Proposal with respect to REIT II has been made to REIT II or publicly announced, disclosed or otherwise communicated to REIT II’s stockholders (and not withdrawn) or any Person shall have publicly announced an intention (whether or not conditional) to make such a Competing Proposal and (B) within twelve (12) months after the date of such termination, a transaction in respect of a Competing Proposal with respect to REIT II is consummated or REIT II enters into a definitive agreement in respect of a Competing Proposal with respect to REIT II that is later consummated, REIT II shall pay to REIT I the REIT II Termination Payment; (iii) by REIT I pursuant to Section 10.1(f9.1(c)(i) based upon a failure of the conditions set forth (other than as described in Sections 8.1 through 8.4.
(e) The fees payable pursuant to Sections 11.1(bSection 9.3(b)(ii)), then REIT II shall pay to REIT I an amount equal to the Expense Reimbursement Payment; (civ) or 11.1(d) shall be paid within one business day after the first to occur of the events described in Sections 11.1(b), (c) or 11.1(d), as the case may be, and the expenses payable by REIT I pursuant to Section 11.1(a) 9.1(c)(ii), then REIT I shall be paid within five business days after receipt of written documentation of the pay to REIT II an amount of expenses so payable; provided, however, that in no event shall Parent or the Company, as the case may be, be required to pay such fees or expenses equal to the otherREIT I Termination Payment; (v) by REIT I pursuant to Section 9.1(c)(iii), if, immediately prior then REIT II shall pay to REIT I an amount equal to the termination of this Agreement, the party to receive the fees or expenses was in material breach of its obligations under this Agreement.REIT II Termination Payment; 86
Appears in 2 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT, Inc.), Merger Agreement (Griffin Capital Essential Asset REIT II, Inc.)
