Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is terminated: (i) by Tempranillo pursuant to Section 10.01(c)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (d) For the avoidance of doubt, any payment made by Lafite or Tempranillo under this Section 11.04 shall be payable only once with respect to this Section 11.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (e) Each of Lafite and Tempranillo acknowledges that the agreements contained in this Section 11.04 are an integral part of the Transactions and that without such provisions Tempranillo and Merger Sub or Lafite, as the case may be, would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite fails to pay the Lafite Termination Fee or any portion thereof and Tempranillo or Merger Sub commences a suit which results in an Order against Lafite for the Lafite Termination Fee or any portion thereof, Lafite shall pay Tempranillo and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04.

Appears in 2 contracts

Samples: Merger Agreement (Teladoc Health, Inc.), Agreement and Plan of Merger (Livongo Health, Inc.)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section 10.01(c)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b8.01(d)(i), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; , the Company shall pay (yor cause to be paid to) Parent a fee in the ~~case~~ amount of ~~clause~~ $51,500,000 (ithe “Termination Fee”). (c) of If this Agreement is terminated by Parent pursuant to Section ~~11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo~~8.01(c)(i), then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and~~ , pay (zor cause to be paid to) Parent the Termination Fee. (d) If this Agreement is terminated (i) by Parent or the Company pursuant to Section 8.01(b)(i) (but in the case of ~~clauses~~ a termination by the Company pursuant to Section 8.01(b)(i), only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.01(b)(i)), (ii) at any time on or after the date of this Agreement and prior to such termination, a Person (other than Parent or any of Affiliates) shall have made a bona fide Takeover Proposal (whether or not withdrawn) in respect of a Takeover Transaction that shall have become generally known to the public, and (iii) ~~and~~ within twelve (iv12) months after the date of ~~this Section 11.04(b)~~such termination, (A) the Company enters into an Alternative Acquisition Agreement providing for a Takeover Transaction or (B) a Takeover Transaction is consummated, then, the Company shall pay (or cause to be paid) to Parent the Termination Fee concurrently with ~~the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2)~~ the consummation of any such ~~Lafite~~ Takeover Transaction~~. For~~ ; provided, however, that, for purposes ~~of clauses (iii) and (iv)~~ of this Section ~~11.04(b~~9.04(d)(iii), all references to “~~fifteen~~ twenty percent (1520%)” in the definition of ~~Lafite~~ Takeover Transaction shall be deemed to be references to “fifty percent (50%).”. (ce) If Notwithstanding anything to the contrary set forth in this ~~Agreement is terminated:~~ Agreement, the parties agree that: (i) ~~by Lafite pursuant~~ in no event shall the Company be obligated to ~~Section 10.01(d)(i);~~ pay the Termination Fee on more than occasion; and (ii) ~~by Tempranillo or Lafite~~ Parent’s right to receive payment from the Company of the Termination Fee pursuant to this Section ~~10.01(b)(iv~~9.04, and, if applicable, any payments under Section 9.04(g), shall be the sole and exclusive remedy of Parent, Merger Sub and their respective Affiliates against the Company, its Representatives, its Affiliates and equityholders (collectively, “Company Related Parties”) ~~at a time when~~ in any circumstance in which Parent accepts payment of the Termination Fee, and none of the Company Related Parties shall have any further liability or obligation relating to, arising out of, or in connection with, this Agreement ~~was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo~~ or ~~Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to~~ the ~~Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known~~Transactions, and (Bsubject to the proviso below) ~~within twelve (12) months after~~ no Person shall be entitled to bring or maintain any Proceeding against the ~~date~~ Company or any of ~~such termination~~its Affiliates or any of its Representatives arising out of, ~~(x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction~~ relating to, or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of in connection with this Agreement ~~and prior to such termination a Tempranillo Takeover Proposal~~ or any of the Transactions; provided, however, that nothing in this Section 9.04(e) shall ~~have been made (whether~~ limit the rights of Parent or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) Merger Sub in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”Willful Breach. (d) For the avoidance of doubt, any payment made by Lafite or Tempranillo under this Section 11.04 shall be payable only once with respect to this Section 11.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) Each of ~~Lafite~~ Parent, Merger Sub and ~~Tempranillo~~ the Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo and Merger Sub or Lafite, as~~ none of the ~~case may be,~~ parties would ~~not~~ have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If ~~Lafite~~ the Company fails to timely pay the ~~Lafite~~ Termination Fee in accordance with Section 9.04(b), (c) or (d), as applicable, or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their reasonable costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable ~~to Tempranillo~~ pursuant to this Section ~~11.04~~ 9.04 shall be paid to ~~Tempranillo~~ Parent by wire transfer of immediately available funds. ~~Tempranillo~~ Parent shall promptly provide ~~Lafite~~ the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Alexion Pharmaceuticals, Inc.), Merger Agreement (Portola Pharmaceuticals Inc)

Fees; Expenses. (a) ~~Except~~ The Company agrees to pay Parent in immediately available funds by wire transfer an amount equal to $1,000,000 (the "TERMINATION FEE") if: (i) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof; (ii) this Agreement is terminated by Parent or the Company, as ~~otherwise expressly provided in~~ applicable, pursuant to Sections 7.1(b)(i) or (ii) hereof prior to which no Triggering Event has occurred, if (A) following the date hereof and prior to such termination of this Agreement, an Acquisition Proposal shall have been publicly announced and shall not have been publicly and irrevocably withdrawn prior to such termination of this Agreement, and (B) within nine (9) months following such termination of this Agreement, either (1) the transaction contemplated by an Acquisition Proposal (a "COMPANY ACQUISITION") is consummated, or (2) the Company enters into a definitive agreement providing for a Company Acquisition and such Company Acquisition is later consummated; or (iii) this Agreement is terminated by the Company pursuant to Section 7.1(d) hereof. (b) The Company shall pay the Termination Fee paid pursuant to this Section 7.3 (if all conditions thereto have been satisfied) (i) at or prior to the termination of this Agreement by the Company in the circumstances described in Section 7.3(a)(iii) hereof, (ii) not later than one (1) business day after the termination of this Agreement by Parent in the circumstances described in Section 7.3(a)(i) hereof, or (iii) at or prior to the consummation of the applicable Company Acquisition in the case of a Termination Fee payable pursuant to Section 7.3(a)(ii) hereof. (c) For purposes of Sections 7.3(a) and 7.3(b) hereof, the definition of "ACQUISITION PROPOSAL" set forth in Section 5.4 hereof shall be modified to replace "15%", as it appears in such definition, with "30%". (d) All costs and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated hereby shall be paid by the party incurring such ~~costs or~~ expenses. (b) If this Agreement is terminated: (i) by Tempranillo pursuant to Section 10.01(c)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (d) For the avoidance of doubt, any payment made by Lafite or Tempranillo under this Section 11.04 shall be payable only once with respect to this Section 11.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (e) Each of Lafite and Tempranillo acknowledges that the agreements contained in this Section 11.04 are an integral part of the Transactions and that without such provisions Tempranillo and Merger Sub or Lafite, as the case may be, would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite fails to pay the Lafite Termination Fee or any portion thereof and Tempranillo or Merger Sub commences a suit which results in an Order against Lafite for the Lafite Termination Fee or any portion thereof, Lafite shall pay Tempranillo and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04.

Appears in 2 contracts

Samples: Offer Agreement (Earthlink Inc), Offer Agreement (Peoplepc Inc)

Fees; Expenses. (a) ~~Except~~ The Company agrees to pay Parent in immediately available funds by wire transfer an amount equal to $33 million (the "TERMINATION FEE") if: (i) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof; (ii) this Agreement is terminated by Parent or the Company, as ~~otherwise expressly provided in~~ applicable, pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) hereof, if (A) following the date hereof and prior to such termination of this Agreement, an Acquisition Proposal shall have been publicly announced and shall not have been publicly and unconditionally withdrawn, and (B) within twelve (12) months following such termination of this Agreement, either (1) the transaction contemplated by any Acquisition Proposal (a "COMPANY ACQUISITION") is consummated (it being understood that such Acquisition Proposal need not be the same Acquisition Proposal identified in clause (A) of this Section 7.3(a)(ii)), or (2) the Company enters into a definitive agreement providing for a Company Acquisition and such Company Acquisition is later consummated; or (iii) this Agreement is terminated by the Company pursuant to Section 7.1(d) hereof. (b) The Company shall pay the Termination Fee paid pursuant to this Section 7.3 (if all conditions thereto have been satisfied) (i) at or prior to the termination of this Agreement by the Company in the circumstances described in Section 7.3(a)(iii) hereof, or (ii) not later than one (1) business day after the termination of this Agreement by Parent in the circumstances described in Section 7.3(a)(i) hereof, or (iii) at or prior to the consummation of the applicable Company Acquisition in the case of a Termination Fee payable pursuant to Section 7.3(a)(ii) hereof. (c) All costs and expenses incurred in connection with this Agreement and the ~~Transactions~~ transactions contemplated hereby shall be paid by the party incurring such ~~costs or~~ expenses~~. (b) If this Agreement is terminated:~~ , PROVIDED, HOWEVER, that Parent and the Company shall share equally all fees and expenses, other than attorneys' and accountants' fees, incurred in connection with (i) by Tempranillo pursuant to Section 10.01(c)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) the filing, printing and ~~(A) at or prior to~~ mailing of the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition toRegistration Statement, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition toPreliminary Prospectus, the ~~effectiveness of~~ Offer Documents, the Post-Effective Amendment and the Proxy Statement and any ~~such termination; (y) in the case of clause (i) of this Section 11.04(c)~~ amendments or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (d) For the avoidance of doubt, any payment made by Lafite or Tempranillo under this Section 11.04 shall be payable only once with respect to this Section 11.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (e) Each of Lafite and Tempranillo acknowledges that the agreements contained in this Section 11.04 are an integral part of the Transactions and that without such provisions Tempranillo and Merger Sub or Lafite, as the case may be, would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, supplements thereto and (ii) ~~Tempranillo for~~ the filing by any ~~reason at a time when Lafite would have had~~ of the ~~right~~ parties hereto of the Pre-Merger Notification and Report Forms relating to ~~terminate this Agreement, Lafite shall be entitled to receipt~~ the Offer and the Merger under the HSR Act and the filing of any ~~Tempranillo Termination Fee that would have been (~~notice or ~~would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite fails to pay the Lafite Termination Fee or~~ other document under any ~~portion thereof and Tempranillo or Merger Sub commences a suit which results in an Order against Lafite for the Lafite Termination Fee or any portion thereof, Lafite~~ applicable foreign Antitrust Law. No party shall pay ~~Tempranillo and Merger Sub their costs and~~ any expenses ~~(including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on~~ of any stockholder of the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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 madeCompany. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04.-42- 47

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (C Cube Microsystems Inc/De), Agreement and Plan of Reorganization (C Cube Microsystems Inc/De)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated:~~terminated by the Company pursuant to Section 8.01(d)(i), prior to or concurrently with and as a condition to the effectiveness of such termination, the Company shall pay Parent a fee in immediately available funds in the amount of $11,750,000 (the “Termination Fee”). (c) If this Agreement is terminated by Parent pursuant to Section 8.01(c) (other than pursuant to clause (iii) thereof), then the Company shall promptly, but in no event later than three (3) Business Days after termination of this Agreement, pay Parent the Termination Fee in immediately available funds. (d) If this Agreement is terminated by (i) ~~by Tempranillo~~ Parent or the Company pursuant to Section ~~10.01(c)(i);~~ 8.01(b)(i) or (ii) by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iii~~8.01(c)(iii) at (other than in the case of this clause (ii) as a ~~time when~~ result of a breach of the representations or warranties of the Company in this Agreement ~~was terminable by Tempranillo pursuant~~ resulting from a change in facts or circumstances (as opposed to ~~Section 10.01(c)(i); (iii~~resulting from actions of the Company) ~~by Tempranillo or Lafite pursuant to Section 10.01(b)(iii~~that occurred after the date of this Agreement) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination ~~a Lafite Takeover~~ an Acquisition Proposal shall have been made ~~(whether or not conditional and whether or not withdrawn)~~ to the ~~Lafite~~ Company Board or ~~become~~ the Company or publicly ~~known,~~ announced and (yB) (1) within twelve (12) months after the date of such termination, ~~(1) Lafite~~ the Company enters into a definitive acquisition agreement that provides for an ~~Alternative Lafite~~ Acquisition ~~Agreement providing for a Lafite Takeover~~ Transaction ~~or (2) a Lafite Takeover~~ and thereafter an Acquisition Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made consummated (whether or not ~~conditional and whether~~ such consummation occurs within or ~~not withdrawn~~after such twelve (12) ~~to the Tempranillo Board~~ month period) or ~~become publicly known, and~~ (B2) within twelve (12) months after the date of such termination, ~~(x) Tempranillo enters into an Alternative Tempranillo~~ any Acquisition ~~Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover~~ Transaction is consummated~~; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii)~~, ~~and (x) at any time on or after~~ then the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo Company shall pay ~~(or cause to be paid to) Lafite, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo~~ Termination Fee ~~shall be paid as follows:~~ on the third (x3rd) Business Day after such consummation in ~~the case of clause (ii)~~ immediately available funds; provided, however, that for purposes of this Section ~~11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c~~9.04(d), ~~prior~~ the term “Acquisition Transaction” shall have the meaning assigned to ~~or concurrently with, and as a condition to,~~ such term in Article 1 except that the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references reference to “fifteen percent (15%)” ~~in the definition of Tempranillo Takeover Transaction~~ therein shall be deemed to be ~~references~~ a reference to “fifty percent (50%).” (e) If (i) this Agreement is terminated pursuant to Section 8.01(b)(i) at a time when all Offer Conditions have been satisfied or waived other than the Minimum Tender Condition, (ii) the failure of the Offer to be consummated did not result from the breach of this Agreement by Parent or Merger Sub and (iii) a Termination Fee is not otherwise payable pursuant to this Section 9.04 in connection with such termination, then the Company shall promptly, but in no event later than three (3) Business Days after delivery to the Company of a notice of demand for payment for all expenses of Parent or Merger Sub incurred in connection with the Transactions, pay Parent an amount equal to the amount of such expenses (not to exceed $1,250,000 in the aggregate) for which Parent has not theretofore been reimbursed by the Company (the “Parent Expenses”). Such expenses shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants) incurred by or on behalf of Parent or Merger Sub in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the Tender Agreement and the Transactions. Any amount paid pursuant to this Section 9.04(e), may be deducted from any amount that is subsequently paid under Section 9.04(d). (df) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (eg) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement~~. (f) Notwithstanding anything to~~ . If the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. ~~Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo~~ Parent shall promptly provide ~~Lafite~~ to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (h) ~~If Tempranillo fails~~ Subject to ~~pay~~ Section 9.09 (which shall not be limited by this Section 9.04(h)) and other than with respect to an Intentional Breach of this Agreement by the ~~Tempranillo~~ Company, in the event that the Termination Fee ~~or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for~~ and/or the ~~Tempranillo~~ Parent Expenses are paid by the Company as required by this Section 9.04, Parent’s right to receive payment from the Company of the Termination Fee ~~or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on~~ and/or the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite Parent Expenses pursuant to this Section ~~11.04~~ 9.04 shall constitute the sole and exclusive remedy of Parent, Merger Sub and their Affiliates and Representatives against the Company and its Subsidiaries and any of their respective former, current or future Representatives, general or limited partners, stockholders, members, managers, employees, Affiliates or assignees (collectively, the “Company-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be ~~paid~~ consummated or otherwise, and upon payment of such amount, none of the Company-Related Parties shall have any further Liability or obligation relating to ~~Lafite by wire transfer~~ or arising out of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ this Agreement or the ~~wire transfer information required to make~~ Transactions under any ~~payments~~ theory of law or equity, contract, tort or otherwise; provided, that the payment of the Parent Expenses pursuant to Section 9.04(e) shall not affect Parent’s right to receive the Termination Fee pursuant to Section 9.04(d) except to the extent set forth in the last sentence of Section 9.04(e); and provided, further, that nothing in this Section ~~11.04~~9.04(h) shall limit any right or remedy of Parent or Merger Sub with respect to an Intentional Breach of this Agreement by the Company or relieve the Company of any Liability with respect to its Intentional Breach of this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Open Text Corp), Merger Agreement (Actuate Corp)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~8.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , then prior to ~~the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether~~ or ~~not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of~~ concurrently with such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay ~~(or cause to be paid to) Tempranillo, at the time specified in the following sentence,~~ Parent a fee in the amount of $~~562,810,000~~ 19,000,000 (the “~~Lafite~~ Termination Fee”)~~. The Lafite Termination Fee shall be paid as follows:~~ . (xc) ~~in the case of clause (ii) of~~ If this Agreement is terminated by Parent pursuant to Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~8.01(c)(i), ~~prior to or concurrently with, and as a condition to,~~ then the ~~effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo),~~ Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and (z) in~~ , pay Parent the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”Termination Fee. (cd) If this Agreement is ~~terminated: (i)~~ terminated by ~~Lafite~~ Parent or the Company pursuant to Section ~~10.01(d)(i~~8.01(b)(i) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 8.01(b)(i)~~; (ii~~) or by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iv~~8.01(c)(ii) at because the Company breached or failed to perform a ~~time when~~ covenant under this Agreement ~~was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo~~ or ~~Lafite pursuant to Section 10.01(b)(iv)~~ Willfully Breached one of the Company’s representations and warranties and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (xi) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal, or the intention of a ~~Tempranillo Takeover Proposal~~ Third Party to make an Acquisition Proposal, shall have been publicly made ~~(whether~~ or ~~not conditional and whether or not withdrawn) to the Tempranillo Board or~~ otherwise become publicly ~~known~~known (unless publicly withdrawn prior to such termination), and (yii) within twelve (12) months after the date of such termination, (1A) ~~Tempranillo~~ the Company enters into an Alternative ~~Tempranillo~~ Acquisition Agreement ~~providing for a Tempranillo Takeover Transaction~~ or (2B) ~~a Tempranillo Takeover~~ any Acquisition Transaction is consummated~~; or (v) by Tempranillo pursuant to Section 10.01(c)(iii);~~ , then, ~~in any such case, Tempranillo~~ the Company shall pay ~~(or cause to be paid to) Lafite, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo~~ Termination Fee ~~shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c)~~prior to, ~~prior to~~ or concurrently with, ~~and as a condition to~~the earlier to occur of entry into an Alternative Acquisition Agreement in respect of or consummation of an Acquisition Transaction; provided, ~~the effectiveness of any such termination; (y) in the case of clause (i)~~ however, that, for purposes of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c8.03(d), all references to “~~fifteen percent (15~~20%)” in the definition of ~~Tempranillo Takeover Transaction~~ “Acquisition Transaction” shall be deemed to be references to “~~fifty percent (~~50%)”” and clause (v) in the definition of “Acquisition Transaction” shall not apply for purposes of this Section 8.03(d) unless such exclusive license (A) results in all or a portion of the proceeds of such exclusive license being distributed to the Company’s stockholders by any special or extraordinary dividend (or similar distribution to stockholders) within twelve (12) months of the consummation of such exclusive license, (B) the consummation of the transaction contemplated by such exclusive license requires the approval of the Company’s stockholders under Delaware Law or (C) the proceeds received by the Company or its Affiliates as a result of such exclusive license would constitute all or substantially all of the Company’s assets. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 8.03 shall be payable only once with respect to this Section ~~11.04~~ 8.03 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 8.03 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If ~~Lafite~~ the Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each ~~case,~~ case from and including the date payment of such amount was due to through 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. Any amounts payable ~~to Tempranillo~~ pursuant to this Section ~~11.04~~ 8.03 shall be paid to ~~Tempranillo~~ Parent by wire transfer of immediately available funds. ~~Tempranillo~~ Parent shall promptly provide ~~Lafite~~ the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~8.03. (h) ~~If Tempranillo fails~~ Notwithstanding anything herein to ~~pay~~ the ~~Tempranillo~~ contrary, other than in the case of fraud or a Willful Breach by the Company, Parent’s right to receive payment from the Company of the Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreementpursuant to Sections 8.03(b) and ~~on the amount of such costs~~ (c) and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to Section 8.03(g) shall be the sole and exclusive remedy of any of Parent, Merger Sub or any of their respective Affiliates or representatives against the Company and any of its former, current or future officers, directors, partners, stockholders, Company Stock Option holders, Company Restricted Stock Unit holders, managers, members or Affiliates (collectively, the “Company Related Parties”) for any loss suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of the Termination Fee, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this ~~Section 11.04~~Agreement or the Transactions.

Appears in 2 contracts

Samples: Merger Agreement (Gurnet Holding Co), Merger Agreement (Corium International, Inc.)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~8.01(d)(i);, the Company shall pay Parent (or an account designated by Parent) the Termination Fee substantially concurrently with such termination. (iic) If this Agreement is terminated by ~~Tempranillo or Lafite~~ Parent pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i8.01(c)(i) or (BSection 8.01(c)(ii) ~~by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after~~ then the ~~date of this Agreement and prior to such termination a Lafite Takeover Proposal~~ Company shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and (z) in~~ , pay Parent the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”Termination Fee. (cd) If this Agreement is ~~terminated: (i)~~ terminated by ~~Lafite~~ Parent or the Company pursuant to Section ~~10.01(d)(i); (ii~~8.01(b)(i) or by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iv~~8.01(c)(iii) at as a ~~time when~~ result of an Intentional and Knowing Breach by the Company of any of the representations, warranties, covenants or other agreements contained in this Agreement ~~was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv)~~ and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (xi) at any time on or after the date of this Agreement and prior to such termination ~~a Tempranillo Takeover~~ an Acquisition Proposal shall have been ~~made~~ publicly announced (~~whether or~~ and not ~~conditional and whether or not~~ publicly withdrawn) ~~to the Tempranillo Board or become publicly known,~~ and (yii) (A) within twelve (12) months after the date of such termination, ~~(1) Tempranillo~~ the Company enters into a definitive agreement to engage in an ~~Alternative Tempranillo~~ Acquisition ~~Agreement providing for a Tempranillo Takeover~~ Transaction, and thereafter such Acquisition Transaction is consummated (whether or not such consummation occurs before or after such twelve (12) month period), or (2B) ~~a Tempranillo Takeover~~ within twelve (12) months after the date of such termination, any Acquisition Transaction is consummated~~; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then~~, ~~in any such case, Tempranillo~~ then the Company shall pay ~~(or cause to be paid to) Lafite, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo~~ Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than ~~two~~ five (25) Business Days after ~~termination of this Agreement~~such consummation; ~~and (z) in the case of clauses (iii) and (iv)~~ provided, however, that for purposes of this Section ~~11.04(c~~9.04(d), ~~concurrently with~~ the ~~earlier of (1)~~ term “Acquisition Transaction” shall have the ~~entry into~~ meaning assigned to such ~~Alternative Tempranillo Acquisition Agreement and (2)~~ term in Article 1 except that the ~~consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references~~ reference to “fifteen percent (15%)” ~~in the definition of Tempranillo Takeover Transaction~~ therein shall be deemed to be ~~references~~ a reference to “fifty percent (50%).”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite fails to pay the Lafite Termination Fee or any portion thereof and Tempranillo or Merger Sub commences a suit which results in an Order against Lafite for the Lafite Termination Fee or any portion thereof, Lafite shall pay Tempranillo and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. ~~Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo~~ Parent shall promptly provide ~~Lafite~~ to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04. (h)~~ 9.04. If ~~Tempranillo~~ the Company fails to pay the ~~Tempranillo~~ Termination Fee and Parent or ~~any portion thereof and Lafite~~ Merger Sub commences a suit which results in an Order against ~~Tempranillo~~ the Company for the ~~Tempranillo~~ Termination Fee or any portion thereof, ~~Tempranillo~~ the Company shall ~~pay Lafite its~~ reimburse Parent and Merger Sub for their reasonable and documented, out-of-pocket costs and expenses (including reasonable outside attorney’s fees and disbursements) in connection with such suit; provided that if Parent commences such a suit which does not result in an Order against the Company for the Termination Fee or any portion thereof, ~~together~~ Parent shall reimburse the Company for its reasonable and documented, out-of-pocket costs and expenses (including reasonable outside attorney’s fees and disbursements) in connection with ~~interest on~~ such suit. (g) Notwithstanding anything to the ~~Tempranillo~~ contrary contained in this Agreement, but subject to Section 9.09 with respect to the enforcement of the provisions of this Section 9.04, in the event that the Termination Fee is paid by the Company as required by this Section 9.04, Parent’s right to receive payment from the Company of the Termination Fee (~~or any portion thereof that has not been paid timely in accordance with this Agreement~~as applicable) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section ~~11.04~~ 9.04 shall constitute the sole and exclusive remedy of Parent, Merger Sub and their Affiliates and Representatives against the Company and the Company Subsidiaries and any of their respective former, current or future Representatives, general or limited partners, stockholders, members, managers, employees, Affiliates or assignees (collectively, the “Company-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be ~~paid~~ consummated or otherwise, and upon payment of such amount, none of the Company-Related Parties shall have any further Liability or obligation relating to ~~Lafite by wire transfer~~ or arising out of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ this Agreement or the ~~wire transfer information required to make~~ Transactions under any ~~payments pursuant to this Section 11.04~~theory of law or equity, contract, tort or otherwise.

Appears in 2 contracts

Samples: Merger Agreement (JetPay Corp), Agreement and Plan of Merger (NCR Corp)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section 10.01(c)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii8.01.(d)(i), ~~and (x) at any time on or after~~ the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay (to Parent or ~~cause to be paid to) Tempranillo, at the time specified in the following sentence,~~ an account designated by Parent a fee in immediately available funds in the amount of $~~562,810,000~~ 5,512,802 (the “~~Lafite~~ Termination Fee”~~). The Lafite Termination Fee shall be paid as follows: (x~~) ~~in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or~~ substantially concurrently ~~with, and as a condition to, the effectiveness of any~~ with such termination; . (yc) ~~in the case of clause (i) of~~ If this Agreement is terminated by Parent pursuant to Section ~~11.04(b~~8.01.(c)(i) or ~~clause (ii~~Section 8.01.(c)(ii) ~~of this Section 11.04(b) (if such termination is by Tempranillo),~~ then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and (z) in~~ , pay Parent the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”Termination Fee. (cd) If this Agreement is ~~terminated: (i)~~ terminated by ~~Lafite~~ Parent or the Company pursuant to Section ~~10.01(d)(i); (ii~~8.01.(b)(i) or by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iv~~8.01.(c)(iii) at as a ~~time when~~ result of an Intentional and Knowing Breach by the Company of any of the representations, warranties, covenants or other agreements contained in this Agreement ~~was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv)~~ and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (xi) at any time on or after the date of this Agreement and prior to such termination ~~a Tempranillo Takeover~~ an Acquisition Proposal shall have been ~~made~~ publicly announced (~~whether or~~ and not ~~conditional and whether or not~~ publicly withdrawn) ~~to the Tempranillo Board or become publicly known,~~ and (yii) (A) within twelve (12) months after the date of such termination, ~~(1) Tempranillo~~ the Company enters into a definitive agreement to engage in an ~~Alternative Tempranillo~~ Acquisition ~~Agreement providing for a Tempranillo Takeover~~ Transaction, and thereafter such Acquisition Transaction is consummated (whether or not such consummation occurs before or after such twelve (12) month period), or (2B) ~~a Tempranillo Takeover~~ within twelve (12) months after the date of such termination, any Acquisition Transaction is consummated~~; or~~ , then the Company shall pay Parent the Termination Fee (~~v) by Tempranillo~~ less any Parent Expenses previously reimbursed pursuant to Section ~~10.01(c)(iii~~9.04.(e)~~; then, in any such case, Tempranillo shall pay (or cause to be paid to~~) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after ~~termination of this Agreement~~such consummation; ~~and (z) in the case of clauses (iii) and (iv)~~ provided, however, that for purposes of this Section ~~11.04(c~~9.04.(d), ~~concurrently with~~ the ~~earlier of (1)~~ term “Acquisition Transaction” shall have the ~~entry into~~ meaning assigned to such ~~Alternative Tempranillo Acquisition Agreement and (2)~~ term in Article 1 except that the ~~consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references~~ reference to “fifteen percent (15%)” ~~in the definition of Tempranillo Takeover Transaction~~ therein shall be deemed to be ~~references~~ a reference to “fifty percent (50%).” (e) In the event this Agreement is terminated (A) pursuant to Section 8.01.(b)(i) provided that as of such termination the Minimum Tender Condition has not been satisfied but all other conditions set forth in Exhibit A and ARTICLE 7 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the consummation of the Offer or the Merger, provided that such conditions are capable of being satisfied) or (B) under Section 8.01.(c)(iii), then the Company shall, following receipt of an invoice therefor, promptly (in any event within two (2) Business Days) pay up to $2,500,000 of reasonable and documented out-of-pocket fees and expenses (including legal fees and expenses) incurred by Parent and its Affiliates on or prior to the termination of this Agreement in connection with the Transactions (the “Parent Expenses”), by wire transfer of same day funds to one or more accounts designated by Parent; provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 9.04.(a) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 9.04.(e); provided, further, that the payment by the Company of Parent Expenses pursuant to this Section 9.04.(e) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 9.04.(a) (less the Parent Expenses previously reimbursed). (df) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (eg) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement~~. (f) Notwithstanding anything~~ . Parent shall promptly provide to the ~~contrary contained in~~ Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04 or elsewhere in this Agreement, in~~ 9.04. If the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Termination Fee or Parent Expenses or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or Parent Expenses or any portion thereof, ~~Lafite~~ the Company shall ~~pay Tempranillo~~ reimburse Parent and Merger Sub for their reasonable and documented, out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit~~, together with interest on the Lafite Termination Fee (or any portion thereof~~ ; provided that ~~has not been paid timely in accordance with this Agreement) and on the amount of~~ if Parent commences such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which ~~results~~ does not result in an Order against ~~Tempranillo~~ the Company for the ~~Tempranillo~~ Termination Fee or Parent Expenses or any portion thereof, ~~Tempranillo~~ Parent shall ~~pay Lafite~~ reimburse the Company for its reasonable and documented, out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit. (h) Notwithstanding anything to the contrary contained in this Agreement, ~~together with interest on~~ but subject to Section 9.09 (which shall not be limited by Section 9.04.(a)), in the ~~Tempranillo~~ event that the Termination Fee and/or the Parent Expenses (~~or any portion thereof that has not been~~ as applicable) are paid ~~timely in accordance with~~ by the Company as required by this ~~Agreement~~Section 9.04, Parent’s right to receive payment from the Company of the Termination Fee and/or the Parent Expenses (as applicable) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section ~~11.04~~ 9.04 shall constitute the sole and exclusive remedy of Parent, Merger Sub and their Affiliates and Representatives against the Company and the Company Subsidiaries and any of their respective former, current or future Representatives, general or limited partners, stockholders, members, managers, employees, Affiliates or assignees (collectively, the “Company-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be ~~paid~~ consummated or otherwise, and upon payment of such amount, none of the Company-Related Parties shall have any further Liability or obligation relating to ~~Lafite by wire transfer~~ or arising out of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ this Agreement or the ~~wire transfer information required to make~~ Transactions under any ~~payments pursuant to~~ theory of law or equity, contract, tort or otherwise; provided, that nothing in this Section ~~11.04~~9.04.(a) shall limit any right or remedy of Parent or Merger Sub with respect to fraud by the Company or relieve the Company of any liability with respect to fraud.

Appears in 1 contract

Samples: Merger Agreement (Cdi Corp)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated:~~terminated by Seller or Parent pursuant to Section 9.01(d)(i), Seller shall pay (and Parent shall cause Seller to pay) Buyer a fee in immediately available funds in the amount of $8,802,207.59 (the “Termination Fee”) substantially concurrently with such termination. (c) If this Agreement is terminated by Buyer pursuant to Section 9.01(c)(i) then Seller shall (and Parent shall cause Seller to) promptly, but in no event later than five (5) Business Days after termination of this Agreement, pay Buyer the Termination Fee. (d) If this Agreement is terminated by (i) ~~by Tempranillo~~ Buyer, Seller or Parent pursuant to Section ~~10.01(c)(i);~~ 9.01(b)(i) or Section 9.01(b)(iv) or (ii) ~~by Tempranillo or Lafite~~ Buyer pursuant to Section ~~10.01(b)(iii~~9.01(c)(ii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination (or prior to the Stockholders Meeting in the case of a ~~Lafite Takeover~~ termination pursuant to Section 9.01(b)(iv)) an Acquisition Proposal shall have been ~~made~~ publicly announced (~~whether or~~ and not ~~conditional and whether or not~~ publicly withdrawn) ~~to the Lafite Board or become publicly known,~~ and (y) within twelve (12) months after the date of such termination, Seller or Parent (1or any of their Affiliates) ~~Lafite~~ enters into ~~an Alternative Lafite~~ a definitive agreement or agreements with respect to one or more Acquisition ~~Agreement providing for a Lafite Takeover Transaction or (2~~Proposals, and thereafter the Acquisition Transaction(s) ~~a Lafite Takeover Transaction~~ contemplated by such Acquisition Proposal(s) is ~~consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay~~ (or are) consummated (whether or not such consummation occurs before or after such twelve (12) month period) or any other Acquisition Transaction(s) is (or are) consummated within such twelve (12) month period, then Seller shall (and Parent shall cause ~~to be paid~~ Seller to) ~~Tempranillo, at~~ pay Buyer the ~~time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite~~ Termination Fee~~”). The Lafite Termination Fee shall be~~ , less any Buyer Expenses previously paid ~~as follows: (x) in the case~~ by or on behalf of ~~clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to~~ Seller or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo)Parent, promptly, but in no event later than five (5) Business Days after such consummation; provided, however, that for purposes of this Section 11.04(d), references to “Acquisition Transaction” shall be deemed to refer to one or more Acquisition Transactions involving, individually or in the aggregate, the acquisition of at least fifty percent (50%) of the assets of, equity interests in or business (as determined by reference to consolidated revenues) of the Company and the Company Subsidiaries as of the date of this Agreement, taken as a whole. (e) If this Agreement is terminated by Buyer, Seller or Parent pursuant to Section 9.01(b)(iv), then Seller shall promptly pay Buyer in immediately available funds, in no event later than two (2) Business Days after such termination of this Agreement; , an amount equal to the reasonable out-of-pocket costs and ~~(z)~~ expenses incurred by Buyer or its Affiliates in connection with this Agreement and the Transactions, including the fees and expenses of counsel, accountants, investment bankers, experts and consultants, in an amount not to exceed $3,250,000 in the ~~case of clauses~~ aggregate (~~iii) and (iv) of this Section 11.04(b~~“Buyer Expenses”), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (df) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ Seller under this Section 11.04 shall be payable only once with respect to this Section 11.04 and not in duplication even though such payment may be payable under one or more provisions hereof; provided, that the Buyer Expenses paid by or on behalf of Seller or Parent shall be credited against any Termination Fee payable pursuant to Section 11.04(d). (eg) ~~Each of Lafite~~ The parties acknowledge and ~~Tempranillo acknowledges~~ agree that (i) the agreements contained in this Section 11.04 are an integral part of the ~~Transactions and that~~ Transactions, (ii) without such provisions ~~Tempranillo and Merger Sub or Lafite, as~~ the ~~case may be,~~ other parties would not have entered into this ~~Agreement.~~ Agreement and (fiii) ~~Notwithstanding anything to~~ the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee ~~that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time~~and/or the Buyer Expenses shall constitute liquidated damages and not a penalty. Accordingly, ~~and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite~~ if Seller shall ~~be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite fails~~ fail to pay the ~~Lafite~~ Termination Fee ~~or any portion thereof~~ and/or the Buyer Expenses when due, Seller and ~~Tempranillo or Merger Sub commences a suit which results in an Order against Lafite~~ Parent shall reimburse Buyer for ~~the Lafite Termination Fee or any portion thereof, Lafite shall pay Tempranillo and Merger Sub their~~ all reasonable costs and expenses incurred by Buyer (including reasonable ~~attorney’s~~ fees and ~~disbursements~~expenses of counsel) in connection with ~~such suit, together with~~ the collection and enforcement of this Section 11.04 and pay to Buyer any interest on the ~~Lafite Termination Fee~~ unpaid amount under this Section 11.04, accruing from its due date, at an interest rate per annum equal to two (~~or any portion thereof that has not been paid timely~~ 2) percentage points in ~~accordance with this Agreement) and on~~ excess of the ~~amount~~ prime commercial lending rate quoted by The Wall Street Journal. Any change in the interest rate hereunder resulting from a change in such prime rate will be effective at the beginning of ~~such costs and expenses, in each case, from and including the date payment of such amount was due to through~~ the date of ~~actual payment at the~~ such change in such prime ~~rate set forth in The Wall Street Journal in effect on the date such payment was required to be made~~rate. ~~Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo~~ Buyer shall promptly provide ~~Lafite~~ to Seller upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) ~~If Tempranillo fails~~ Notwithstanding anything to ~~pay~~ the ~~Tempranillo~~ contrary contained in this Agreement, but subject to Section 11.10 and Section 11.04(f) with respect to the enforcement of the provisions of this Section 11.04, in the event that the Termination Fee ~~or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for~~ and/or the ~~Tempranillo~~ Buyer Expenses are paid by Seller as required by this Section 11.04, Buyer’s right to receive payment from Seller of the Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall constitute the sole and exclusive remedy of Buyer and its Affiliates and Representatives against Seller, Parent, any of their Subsidiaries and any of their respective former, current or future Representatives, general or limited partners, stockholders, members, managers, employees, Affiliates or assignees (collectively, the “Seller-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be ~~paid~~ consummated or otherwise, and upon payment of such amount, none of the Seller-Related Parties shall have any further Liability or obligation relating to ~~Lafite by wire transfer~~ or arising out of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ this Agreement or the ~~wire transfer information required to make~~ Transactions under any ~~payments pursuant to this Section 11.04~~theory of law or equity, contract, tort or otherwise.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Actua Corp)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. Notwithstanding the foregoing, Parent shall pay all filing fees payable pursuant to the HSR Act or any Foreign Competition Laws. (b) If this Agreement is ~~terminated: (i) by Tempranillo~~ terminated pursuant to Section ~~10.01(c)(i~~8.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , prior to ~~the Lafite Stockholders Meeting~~ and as a ~~Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn)~~ condition to the ~~Lafite Board or become publicly known, and (B) within twelve (12) months after the date~~ effectiveness of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay ~~(or cause to be paid to) Tempranillo, at the time specified in the following sentence,~~ Parent a fee in immediately available funds in the amount of $~~562,810,000~~ 64,000,000 (the “~~Lafite~~ Termination Fee”“)~~. The Lafite Termination Fee shall be paid as follows:~~ . (xc) ~~in the case of clause (ii) of~~ If this Agreement is terminated by Parent pursuant to Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~8.01(c)(i), ~~prior to or concurrently with, and as a condition to,~~ then the ~~effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo),~~ Company shall promptly, but in no event later than ~~two (2)~~ one Business ~~Days~~ Day after termination of this Agreement~~; and~~ , pay Parent the Termination Fee. (zd) ~~in the case of clauses (iii~~If this Agreement is terminated pursuant to Section 8.01(b)(i) or Section 8.01(c)(ii) and (ivi) ~~of this Section 11.04(b)~~prior to such termination an Acquisition Proposal shall have been publicly announced and not irrevocably withdrawn prior to such termination, ~~concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement~~ and (2ii) within twelve months following the ~~consummation~~ date of ~~any~~ such ~~Lafite Takeover Transaction~~termination the Company shall have (A) entered into a letter of intent or a definitive agreement with respect to, (B) recommended to its stockholders or (C) consummated a transaction specified in the definition of “Acquisition Proposal”, then the Company shall pay Parent the Termination Fee on the first Business Day after such event. For purposes of ~~clauses (iii) and (iv) of~~ this Section ~~11.04(b), all~~ 9.04(d) the references to “~~fifteen~~ twenty percent (1520%)” in the definition of ~~Lafite Takeover Transaction~~ Acquisition Proposal shall be deemed to be references to “fifty percent (50%).”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the ~~Transactions~~ transactions contemplated by this Agreement and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement~~. (f) Notwithstanding anything to~~ . If the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and ~~expenses, in each case, from and including the date payment of such amount was due to through the date of actual payment~~ expenses at the rate of interest per annum equal to the prime lending rate ~~set forth~~ as published in ~~The~~ the Wall Street Journal in effect on the date such payment was required to be made. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to made through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04payment.

Appears in 1 contract

Samples: Merger Agreement (Zoll Medical Corp)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section 10.01(c)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b8.01(d)(i), prior to or concurrently ~~with, and as a condition to~~with such termination, the ~~effectiveness of any such termination; (y)~~ Company shall pay Parent a fee in immediately available funds in the ~~case~~ amount of ~~clause~~ one hundred and sixty-nine million dollars (i$169,000,000) of (the “Termination Fee”). (c) If this Agreement is terminated by Parent pursuant to Section ~~11.04(b~~8.01(c)(i) or ~~clause (ii) of this~~ Section ~~11.04(b) (if such termination is by Tempranillo~~8.01(c)(iii), then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and (z) in~~ , pay Parent the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”Termination Fee. (cd) If this Agreement is ~~terminated: (i)~~ terminated by ~~Lafite~~ Parent or the Company pursuant to Section ~~10.01(d)(i);~~ 8.01(b)(i) (~~ii)~~ but in the case of a termination by ~~Tempranillo or Lafite~~ the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section ~~10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i~~8.01(b)(i)~~; (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv~~) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (xi) at any time on or after the date of this Agreement and prior to such termination a ~~Tempranillo Takeover~~ bona fide Acquisition Proposal shall have been made ~~(whether or not conditional and whether or not withdrawn)~~ to the ~~Tempranillo~~ Company Board or ~~become~~ the Company and publicly ~~known~~announced or publicly known (unless publicly withdrawn prior to such termination), and (yii) within ~~twelve~~ nine (129) months after the date of such termination, (1A) ~~Tempranillo~~ the Company enters into an Alternative ~~Tempranillo~~ Acquisition Agreement ~~providing for a Tempranillo Takeover Transaction~~ or (2B) ~~a Tempranillo Takeover~~ any Acquisition Transaction is consummated~~; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then~~, ~~in any such case, Tempranillo~~ then the Company shall pay ~~(or cause to be paid to) Lafite, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo~~ Termination Fee ~~shall be paid as follows: (x)~~ prior to entry into an Alternative Acqusition Agreement in ~~the case~~ respect of ~~clause (ii)~~ or consummation of an Acquisition Transaction; provided, however, that, for purposes of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c9.04(d), all references to “~~fifteen percent (15~~20%)” in the definition of ~~Tempranillo Takeover Transaction~~ “Acquisition Transaction” shall be deemed to be references to “~~fifty percent (~~50%)”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If ~~Lafite~~ the Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each ~~case,~~ case from and including the date payment of such amount was due to through 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. ~~Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo~~ Parent shall promptly provide ~~Lafite~~ the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (h) ~~If Tempranillo fails~~ Notwithstanding anything herein to ~~pay~~ the ~~Tempranillo~~ contrary, other than in the case of a Willful and Intentional Breach by the Company, Parent’s right to receive payment from the Company of the Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses pursuant to Section 9.04(b) — (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreementd) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to Section 9.04(g) shall be the sole and exclusive remedy of any of Parent, Merger Sub or any of their respective Affiliates or representatives against the Company and any of its former, current or future officers, directors, partners, stockholders, Company Stock Option holders, Company Restricted Stock Unit holders, Company Performance Stock Unit holders, managers, members or Affiliates (collectively, the “Company Related Parties”) for any loss suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of the Termination Fee, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this ~~Section 11.04~~Agreement or the Transactions.

Appears in 1 contract

Samples: Merger Agreement (Ariad Pharmaceuticals Inc)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~8.01(d)(i);, the Company shall pay Parent a fee by wire transfer of immediately available funds in the amount of $9,000,000 in cash (the “Termination Fee”) substantially concurrently with such termination. (iic) If this Agreement is terminated by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iii~~8.01(c)(i) ~~at a time when~~ or Section 8.01(c)(ii) then the Company shall promptly, but in no event later than two Business Days after termination of this Agreement, pay Parent the Termination Fee. (d) If this Agreement ~~was terminable~~ is terminated by ~~Tempranillo~~ Parent or the Company (only if Parent would be entitled to terminate this Agreement) pursuant to Section ~~10.01(c)(i); (iii~~8.01(b)(i) or by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iii~~8.01(c)(iii)(A) as a result of an Intentional and Knowing Breach and (A) at or prior to the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (xi) at any time on or after the date of this Agreement and prior to such termination ~~a Lafite Takeover~~ an Acquisition Proposal shall have been made ~~(whether or not conditional and whether or not withdrawn)~~ to the ~~Lafite~~ Company Board or ~~become~~ the Company or publicly ~~known,~~ announced and (yii) (A) within ~~twelve (12)~~ 12 months after the date of such termination, ~~(1) Lafite~~ the Company enters into a definitive agreement to engage in an ~~Alternative Lafite~~ Acquisition ~~Agreement providing for a Lafite Takeover Transaction~~ Transaction, or (2B) ~~a Lafite Takeover~~ within 12 months after the date of such termination, any Acquisition Transaction is consummated~~; or (v) by Lafite pursuant to Section 10.01(d)(iii); then~~, ~~in any such case, Lafite~~ then the Company shall pay ~~(or cause to be paid to) Tempranillo, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite~~ Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two ~~(2)~~ Business Days after ~~termination~~ the first to occur of ~~this Agreement~~the entry or consummation described in clause (ii); ~~and (z) in the case of clauses (iii) and (iv)~~ provided, however, that for purposes of this Section ~~11.04(b~~9.04(d), ~~concurrently with~~ the ~~earlier of (1)~~ term “Acquisition Transaction” shall have the ~~entry into~~ meaning assigned to such ~~Alternative Lafite Acquisition Agreement and (2)~~ term in Article 1 except that the ~~consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references~~ reference to “~~fifteen percent (~~15%)” ~~in the definition of Lafite Takeover Transaction~~ therein shall be deemed to be ~~references~~ a reference to “~~fifty percent (~~50%).”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement~~. (f) Notwithstanding anything to~~ . If the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a ~~suit~~ Proceeding to obtain such payment which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such ~~suit~~Proceeding (collectively, ~~together with interest on~~ the ~~Lafite~~ “Fees”); provided, however, that if such Proceeding does not result in an Order against the Company for the Termination Fee (or ~~any~~ portion ~~thereof that has not been paid timely in accordance with this Agreement) and on~~ thereof, as applicable, Parent shall pay the ~~amount of such costs and expenses~~Company’s Fees. The Company or Parent, ~~in each case~~as applicable, from and including the date payment of such amount was due to through 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. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide ~~Lafite~~ the other party upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (hg) ~~If Tempranillo fails~~ Notwithstanding anything to ~~pay~~ the ~~Tempranillo~~ contrary contained in this Agreement (but subject to Section 8.02 and, with respect to the enforcement of the provisions of this Section 9.04, Section 9.09, in the event that the Termination Fee ~~or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for~~ is paid by the ~~Tempranillo~~ Company as required by this Section 9.04, Parent’s right to receive payment from the Company of the Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section ~~11.04~~ 9.04 (and any reimbursement for Fees pursuant to Section 9.04(f)) shall constitute the sole and exclusive remedy of Parent, Merger Sub and their Affiliates and Representatives against the Company and the Company Subsidiaries and any of their respective former, current or future Representatives, general or limited partners, stockholders, members, managers, employees, Affiliates or assignees (collectively, the “Company-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be consummated or otherwise, and upon payment of such amount, none of the Company-Related Parties shall have any further Liability or obligation relating to or arising out of this Agreement or the Transactions under any theory of law or equity, contract, tort or otherwise, except that nothing in this Section 9.04(g) shall limit any right or remedy of Parent or Merger Sub with respect to fraud or an Intentional and Knowing Breach by the Company or relieve the Company of any Liability with respect to any Intentional and Knowing Breach. For the avoidance of doubt and notwithstanding anything to contrary herein, the provisions of this Section 9.04 shall be ~~paid~~ subject in all respects to ~~Lafite by wire transfer~~ Section 9.09, it being understood that Parent and Merger Sub shall be entitled to enforce all of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ their rights under this Agreement prior to the ~~wire transfer information required to make any payments~~ effectiveness of a termination of this Agreement pursuant to Section 8.01, and in no event shall the Company assert Parent’s entitlement 75 to termination of this Agreement pursuant to Section ~~11.04~~8.01, or the amount of the Termination Fee that Parent shall become entitled to receive as a result of such termination, as a basis to oppose any of the remedies as provided in Section 9.09.

Appears in 1 contract

Samples: Merger Agreement (Monster Worldwide, Inc.)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~7.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , prior to ~~the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether~~ or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to concurrently with such termination ~~a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to~~ the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay (or cause to be paid to) ~~Tempranillo, at the time specified in the following sentence,~~ BRF a fee in equal to the ~~amount~~ dollar value of ~~$562,810,000~~ 3.25% of the equity value of the Shares that are not BRF Shares based on the Per Share Amount (the “~~Lafite~~ Termination Fee”)~~. The Lafite Termination Fee shall be paid as follows:~~ . (xc) ~~in the case of clause (ii) of~~ If this Agreement is terminated by BRF pursuant to Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~7.01(c)(i), ~~prior to or concurrently with, and as a condition to,~~ then the ~~effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo),~~ Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and~~ , pay (zor cause to be paid to) BRF the Termination Fee. (d) If this Agreement is terminated (i) (A) by BRF or the Company pursuant to Section 7.01(b)(i) (but in the case of ~~clauses~~ a termination by the Company, only if at such time BRF would not be prohibited from terminating this Agreement pursuant to the proviso in Section 7.01(b)(i)) or (B) by BRF pursuant to Section 7.01(c)(ii), (ii) at any time on or after the date of this Agreement and prior to such termination a bona fide Acquisition Proposal shall have been publicly made or otherwise become publicly known and not publicly withdrawn prior to such termination, and (iii) ~~and~~ within twelve (iv12) months after the date of ~~this Section 11.04(b)~~such termination, (A) the Company enters into an Alternative Acquisition Agreement providing for an Acquisition Transaction or (B) an Acquisition Transaction is consummated, then the Company shall pay (or cause to be paid to) BRF the Termination Fee concurrently with ~~the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2)~~ the consummation of any such ~~Lafite Takeover~~ Acquisition Transaction~~. For~~ ; provided, that, for purposes ~~of clauses (iii) and (iv)~~ of this Section ~~11.04(b~~8.03(d), all references to “~~fifteen~~ twenty percent (1520%)” in the definition of ~~Lafite Takeover~~ Acquisition Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 8.03 shall be payable only once with respect to this Section ~~11.04~~ 8.03 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 8.03 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ BRF and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If ~~Lafite~~ the Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ BRF or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ BRF and Merger Sub their costs and expenses (including reasonable ~~attorney’s~~ attorneys’ fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable ~~to Tempranillo~~ pursuant to this Section ~~11.04~~ 8.03 shall be paid to ~~Tempranillo~~ BRF by wire transfer of immediately available funds. ~~Tempranillo~~ BRF shall promptly provide ~~Lafite~~ the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~8.03. (h) ~~If Tempranillo fails~~ Notwithstanding anything in this Agreement to ~~pay~~ the ~~Tempranillo~~ contrary, if BRF receives payment from the Company of the Termination Fee pursuant to Sections 8.03(b)–(d) (i) BRF’s right to receive payment from the Company of the Termination Fee pursuant to Sections 8.03(b)–(d) and any payments pursuant to Section 8.03(g) shall be the sole and exclusive remedy of any of BRF, Merger Sub or any ~~portion thereof~~ of their respective Affiliates or representatives against the Company and ~~Lafite commences~~ any of its former, current or future officers, directors, partners, stockholders, Company RSU holders, Company PSU holders, managers, members or Affiliates (collectively, the “Company Related Parties”) for any loss suffered as a ~~suit which results~~ result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of the Termination Fee, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions and (ii) if BRF (or its designee) received any payments from the Company in ~~an Order against Tempranillo for~~ respect of any breach of this Agreement, and thereafter BRF (or its designee) is entitled to receive the ~~Tempranillo~~ Termination Fee ~~or any portion thereof~~under this Section 8.03, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 Termination Fee shall be ~~paid to Lafite~~ reduced by ~~wire transfer~~ the aggregate amount of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make~~ any payments ~~pursuant~~ made by the Company to BRF (or its designee) in respect of any such breaches of this ~~Section 11.04~~Agreement.

Appears in 1 contract

Samples: Merger Agreement (National Holdings Corp)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated:~~terminated by the Company pursuant to Section 8.01(d)(i), the Company shall pay Parent a fee in immediately available funds in the amount of $10,392,000.00 (the “Termination Fee”) concurrently with such termination and as a condition to the effectiveness of such termination. (c) If this Agreement is terminated by Parent pursuant to Section 8.01(c) (other than pursuant to clause (iii) thereof), then the Company shall promptly, but in no event later than three (3) Business Days after termination of this Agreement, pay Parent the Termination Fee. (d) If this Agreement is terminated by Parent or the Company pursuant to Section 8.01(b)(i) or by Parent pursuant to Section 8.01(c)(iii) and (i) ~~by Tempranillo pursuant to Section 10.01(c)(i); (ii) by Tempranillo~~ at any time on or ~~Lafite pursuant to Section 10.01(b)(iii) at a time when~~ after the date of this Agreement ~~was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii)~~ and ~~(A) at or~~ prior to the ~~Lafite Stockholders Meeting a Lafite Takeover~~ Offer Expiration Time immediately preceding such termination an Acquisition Proposal shall have been ~~made~~ publicly announced or become publicly known (and not publicly withdrawn at least one (1) Business Day prior to such Offer Expiration Time), (ii) in the case of a termination pursuant to Section 8.01(b)(i), at the Offer Expiration Time immediately preceding such termination, the Minimum Tender Condition shall not have been satisfied, the Offer Condition set forth in clause (ii) of Exhibit A shall have been satisfied and the Offer Conditions set forth in clause (iii)(A) of Exhibit A shall have been satisfied and (iii) (A) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement to engage in an Acquisition Transaction, and thereafter such Acquisition Transaction is consummated (whether or not ~~conditional and whether~~ such consummation occurs before or ~~not withdrawn~~after such twelve (12)-month period) ~~to the Lafite Board~~ or ~~become publicly known, and~~ (B) within twelve (12) months after the date of such termination, ~~(x) Lafite enters into an Alternative Lafite~~ any Acquisition ~~Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover~~ Transaction is consummated~~; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii)~~, ~~and (x) at any time on or after~~ then the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay ~~(or cause to be paid to) Tempranillo, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite~~ Termination Fee ~~shall be paid as follows:~~ no later than the third (x3rd) ~~in the case of clause (ii)~~ Business Day after such consummation; provided, however, that for purposes of this Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~9.04(d), ~~prior~~ the term “Acquisition Transaction” shall have the meaning assigned to ~~or concurrently with, and as a condition to,~~ such term in Article 1 except that the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references reference to “fifteen percent (15%)” ~~in the definition of Lafite Takeover Transaction~~ therein shall be deemed to be ~~references~~ a reference to “fifty ~~percent~~ (50%).”. (ce) If this Agreement is ~~terminated: (i)~~ terminated by ~~Lafite~~ Parent pursuant to Section ~~10.01(d)(i~~8.01(c)(iii)~~; (ii) by Tempranillo or Lafite~~ , and a Termination Fee is not otherwise payable pursuant to this Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of 9.04 in connection with such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after then the ~~date of this Agreement and prior to such termination a Tempranillo Takeover Proposal~~ Company shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than ~~two~~ three (23) Business Days after ~~termination~~ delivery to the Company of a notice of demand for payment for all reasonable and documented, out-of-pocket expenses of Parent and Merger Sub incurred in connection with the Transactions, pay Parent an amount equal to the amount of such expenses (not to exceed $3,247,500.00 in the aggregate) for which Parent has not theretofore been reimbursed by the Company (the “Parent Expenses”). Such expenses shall include all reasonable and documented, out-of-pocket expenses (including all reasonable and documented, out-of-pocket fees and expenses of counsel, accountants, investment bankers, experts and consultants) incurred by or on behalf of Parent or Merger Sub in connection with or related to the authorization, preparation, negotiation, execution and performance of this ~~Agreement;~~ Agreement and ~~(z) in~~ the ~~case of clauses (iii) and (iv) of~~ Transactions. Any amount paid pursuant to this Section ~~11.04(c~~9.04(e) may be deducted from any amount that is subsequently paid under Section 9.04(d), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (df) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (eg) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement~~. (f) Notwithstanding anything~~ . Parent shall promptly provide to the ~~contrary contained in~~ Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04 or elsewhere in this Agreement, in~~ 9.04. If the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Termination Fee or Parent Expenses or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or Parent Expenses or any portion thereof, ~~Lafite~~ the Company shall ~~pay Tempranillo~~ reimburse Parent and Merger Sub for their reasonable and documented, out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) ~~If Tempranillo fails~~ Notwithstanding anything to ~~pay~~ the ~~Tempranillo~~ contrary contained in this Agreement, but subject to Section 9.09 (which shall not be limited by this Section 9.04(h)), in the event that the Termination Fee ~~or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for~~ and/or the ~~Tempranillo~~ Parent Expenses are paid by the Company as required by this Section 9.04, Parent’s right to receive payment from the Company of the Termination Fee ~~or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on~~ and/or the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite Parent Expenses pursuant to this Section ~~11.04~~ 9.04 shall constitute the sole and exclusive remedy of Parent, Merger Sub and their Affiliates and Representatives against the Company and the Company Subsidiaries and any of their respective former, current or future Representatives, general or limited partners, stockholders, members, managers, employees, Affiliates or assignees (collectively, the “Company-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be ~~paid~~ consummated or otherwise, and upon payment of such amount, none of the Company-Related Parties shall have any further Liability or obligation relating to ~~Lafite by wire transfer~~ or arising out of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ this Agreement or the ~~wire transfer information required to make~~ Transactions under any ~~payments~~ theory of law or equity, contract, tort or otherwise; provided, that the payment of the Parent Expenses pursuant to Section 9.04(e) shall not affect Parent’s right to receive the Termination Fee pursuant to Section 9.04(d) except to the extent set forth in the last sentence of Section 9.04(e); provided, further, that nothing in this Section ~~11.04~~9.04(h) shall limit any right or remedy of Parent or Merger Sub with respect to fraud or Intentional and Material Breach by the Company or relieve the Company of any Liability with respect to fraud or its Intentional and Material Breach of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Higher One Holdings, Inc.)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided in this ~~Agreement~~Section, all costs and expenses incurred in connection with this ~~Agreement~~ Agreement, the Merger and the ~~Transactions~~ other transactions contemplated by this Agreement shall be paid by the party incurring such cost or expense, whether or not the Merger is consummated; provided, however that, the costs ~~or expenses~~and expenses incurred in connection with (i) the printing, filing and mailing to stockholders of the Company Proxy Statement and the Registration Statements and the solicitation of the stockholder approval of the Company, and all SEC and other regulatory filing fees incurred in connection with the Company Proxy Statement and (ii) the filing fee for the notification and report forms filed with the Federal Trade Commission and Department of Justice under the HSR Act and premerger notification and report forms under similar applicable laws of other jurisdictions, shall be shared equally by the Company and Parent. (b) ~~If this Agreement is terminated:~~The Company shall pay Parent (by wire transfer of immediately available funds) the amounts set forth below within four Business Days after any of the following events ("Payment Events"): (i) $6,000,000 upon termination of this Agreement for one or more of the following reasons: (x) by ~~Tempranillo~~ Parent pursuant to Section ~~10.01(c)(i~~10.01(c), (y) by either Parent or the Company pursuant to Section 10.01(b)(iii) but only if there has been a Change of Recommendation or (z) by Parent pursuant to Section 10.01(e)(i) (but only if the breach referred to in Section 10.01(e)(i) is a willful and material breach of a material covenant or agreement contained in Article 6 or Article 8 of this Agreement (it being understood that no Payment Event shall occur pursuant to this clause (b)(i)(z) with respect to any breach of any covenant contained in Section 6.01(c), 6.01(e), 6.04, 6.05, 6.06 or 8.06 hereof)); (ii) $2,000,000 upon termination of this Agreement (x) by ~~Tempranillo~~ either Parent or ~~Lafite~~ the Company pursuant to Section 10.01(b)(iii) ~~at a time when this Agreement was terminable~~ if there has been no Change of Recommendation, (y) by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~10.01(f)(ii) or (z) by Parent pursuant to Section 10.01(e)(i) with respect to a breach of the covenant contained in Section 6.01(c); (iii) ~~by Tempranillo~~ in the case of any termination described in Section 11.01(b)(ii)(x) or ~~Lafite pursuant~~ (y), if the Company consummates a Qualifying Transaction within eighteen (18) months of the termination, concurrently with consummation of such Qualifying Transaction, an additional $2,500,000, for an aggregate payment under this Section 11.04(b) of $4,500,000; provided, however, that if such Qualifying Transaction involves the participation of a Third Party (or any of such Third Party's Affiliates) who made (directly or indirectly through its Affiliates or representatives) an Acquisition Proposal that was publicly announced and made known to ~~Section 10.01(b)(iii) and (A) at or~~ the Company's stockholders prior to the ~~Lafite Stockholders~~ Company Stockholder Meeting ~~a Lafite Takeover Proposal shall have been made~~ (whether or not conditional and whether or not ~~withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of~~ such ~~termination, (x) Lafite enters into an Alternative Lafite~~ Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been ~~made (whether~~ rejected or ~~not conditional and whether or not withdrawn)~~ shall have been withdrawn prior to the ~~Lafite Board or become publicly known~~Company Stockholder Meeting), ~~and (y) within twelve (12) months after~~ then the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay ~~(or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of~~ Parent an additional $~~562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of~~ 4,000,000 for an aggregate payment under this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”6,000,000. (d) For the avoidance of doubt, any payment made by Lafite or Tempranillo under this Section 11.04 shall be payable only once with respect to this Section 11.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (e) Each of Lafite and Tempranillo acknowledges that the agreements contained in this Section 11.04 are an integral part of the Transactions and that without such provisions Tempranillo and Merger Sub or Lafite, as the case may be, would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite fails to pay the Lafite Termination Fee or any portion thereof and Tempranillo or Merger Sub commences a suit which results in an Order against Lafite for the Lafite Termination Fee or any portion thereof, Lafite shall pay Tempranillo and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo shall promptly provide Lafite upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04. (h) If Tempranillo fails to pay the Tempranillo Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04.

Appears in 1 contract

Samples: Merger Agreement (Netro Corp)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~8.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , prior to ~~the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether~~ or ~~not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of~~ concurrently with such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay ~~(or cause to be paid to) Tempranillo, at the time specified in the following sentence,~~ Parent a fee in the amount of $~~562,810,000~~ 326,000,000 (the “~~Lafite~~ Termination Fee”)~~. The Lafite Termination Fee shall be paid as follows:~~ . (xc) ~~in the case of clause (ii) of~~ If this Agreement is terminated by Parent pursuant to Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~8.01(c)(i), ~~prior to or concurrently with, and as a condition to,~~ then the ~~effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo),~~ Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and (z) in~~ , pay Parent the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”Termination Fee. (cd) If this Agreement is ~~terminated: (i)~~ terminated by ~~Lafite~~ Parent or the Company pursuant to Section ~~10.01(d)(i~~8.01(b)(i) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 8.01(b)(i)~~; (ii~~) or by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv~~8.01(c)(ii) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (xi) at any time on or after the date of this Agreement and prior to such termination a ~~Tempranillo Takeover Proposal~~ bona fide Acquisition Proposal, or the intention of a Third Party to make a bona fide Acquisition Proposal, shall have been publicly made ~~(whether~~ or ~~not conditional and whether or not withdrawn) to the Tempranillo Board or~~ otherwise become publicly ~~known~~known (unless publicly withdrawn prior to such termination), and (yii) within twelve (12) months after the date of such termination, (1A) ~~Tempranillo~~ the Company enters into an Alternative ~~Tempranillo~~ Acquisition Agreement ~~providing for a Tempranillo Takeover Transaction~~ or (2B) ~~a Tempranillo Takeover~~ any Acquisition Transaction is consummated~~; or (v) by Tempranillo pursuant to Section 10.01(c)(iii);~~ , then, ~~in any such case, Tempranillo~~ the Company shall pay ~~(or cause to be paid to) Lafite, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo~~ Termination Fee ~~shall be paid as follows: (x)~~ prior to the earliest to occur of entry into an Alternative Acquisition Agreement in ~~the case~~ respect of ~~clause (ii)~~ or consummation of an Acquisition Transaction; provided, however, that, for purposes of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c9.04(d), all references to “~~fifteen percent (15~~20%)” in the definition of ~~Tempranillo Takeover Transaction~~ “Acquisition Transaction” shall be deemed to be references to “~~fifty percent (~~50%)”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If ~~Lafite~~ the Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each ~~case,~~ case from and including the date payment of such amount was due to through 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. Any amounts payable ~~to Tempranillo~~ pursuant to this Section ~~11.04~~ 9.04 shall be paid to ~~Tempranillo~~ Parent by wire transfer of immediately available funds. ~~Tempranillo~~ Parent shall promptly provide ~~Lafite~~ the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (h) ~~If Tempranillo fails~~ Notwithstanding anything herein to ~~pay~~ the ~~Tempranillo~~ contrary, other than in the case of fraud or a Willful Breach by the Company, Parent’s right to receive payment from the Company of the Termination Fee or any portion thereof and Lafite commences a suit which results in an Order against Tempranillo for the Tempranillo Termination Fee or any portion thereof, Tempranillo shall pay Lafite its costs and expenses pursuant to Sections 9.04(b) - (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreementd) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make any payments pursuant to Section 9.04(g) shall be the sole and exclusive remedy of any of Parent, Merger Sub or any of their respective Affiliates or representatives against the Company and any of its former, current or future officers, directors, partners, stockholders, Company Stock Option holders, Company Restricted Stock Unit holders, managers, members or Affiliates (collectively, the “Company Related Parties”) for any loss suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of the Termination Fee, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this ~~Section 11.04~~Agreement or the Transactions.

Appears in 1 contract

Samples: Merger Agreement (Bioverativ Inc.)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses (including any transfer, stamp and documentary Taxes or fees, if any) incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~8.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , prior to ~~the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether~~ or ~~not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of~~ concurrently with such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay (or cause to be paid to) ~~Tempranillo, at the time specified in the following sentence,~~ Parent a fee in the amount of $~~562,810,000~~ 26,000,000 (the “~~Lafite~~ Company Termination Fee”)~~. The Lafite Termination Fee shall be paid as follows:~~ . (xc) ~~in the case of clause (ii~~If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i) ~~of this~~ or Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~8.01(c)(ii), ~~prior to or concurrently with, and as a condition to,~~ then the ~~effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo),~~ Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and~~ , pay to (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed or cause to be ~~references to “fifty percent (50%)”~~paid to) Parent the Company Termination Fee. (cd) If this Agreement is ~~terminated:~~ terminated (i) by ~~Lafite~~ Parent or the Company pursuant to Section ~~10.01(d)(i~~8.01(b)(i) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the provisos in Section 8.01(b)(i)~~; (ii)~~ ), or by ~~Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i~~8.01(c)(iii); ; (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (xii) at any time on or after the date of this Agreement and prior to such termination a ~~Tempranillo Takeover~~ bona fide Acquisition Proposal shall have been publicly made ~~(whether~~ or ~~not conditional and whether or not withdrawn) to the Tempranillo Board or~~ otherwise become publicly ~~known~~known and not publicly withdrawn prior to such termination, and (yiii) within twelve (12) months after the date of such termination, (1A) ~~Tempranillo~~ the Company enters into an Alternative ~~Tempranillo~~ Acquisition Agreement providing for ~~a Tempranillo Takeover~~ an Acquisition Transaction or (2B) ~~a Tempranillo Takeover~~ an Acquisition Transaction is consummated~~; or (v) by Tempranillo pursuant to Section 10.01(c)(iii);~~ , then, ~~in any such case, Tempranillo~~ the Company shall pay (or cause to be paid to) ~~Lafite~~Parent the Company Termination Fee concurrently with the consummation of any such Acquisition Transaction; provided, however, that, for purposes of this Section 9.04(d), all references to “at ~~the time specified~~ least twenty five percent (25%)” in the ~~following sentence, a fee in the amount~~ definition of ~~$712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee~~ Acquisition Transaction shall be ~~paid as follows:~~ deemed to be references to “more than fifty percent (x50%).” (e) in If this Agreement is terminated by (i) the ~~case of clause~~ Company pursuant to Section 8.01(d)(ii) or Section 8.01(d)(iii) or (ii) ~~of this~~ Parent pursuant to Section ~~11.04(c) (if such termination is by Tempranillo~~8.01(b)(i) and ~~clause (v~~at such time the Company had the right to terminate this Agreement pursuant to Section 8.01(d)(ii) ~~of this~~ or Section ~~11.04(c~~8.01(d)(iii), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), then Parent shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and~~ , pay to (~~z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1~~or cause to be paid to) the ~~entry into such Alternative Tempranillo Acquisition Agreement and~~ Company $52,000,000 (2) the ~~consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c~~“Parent Termination Fee”)~~, all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”~~. (df) For the avoidance of doubt, any payment made by ~~Lafite~~ the Company or ~~Tempranillo~~ Parent under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (eg) ~~Each of Lafite and Tempranillo acknowledges~~ The parties hereto acknowledge that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo and Merger Sub or Lafite, as~~ the ~~case may be,~~ parties hereto would not have entered into this Agreement. (~~f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (~~i) ~~Lafite for any reason at a time when Tempranillo would have had~~ If the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Company Termination Fee or any portion thereof or Parent fails to pay the Parent Termination Fee or any portion thereof, in each case, when due and ~~Tempranillo~~ payable pursuant to this Section 9.04 and Parent or Merger ~~Sub~~ Sub, on the one hand, or the Company, on the other hand, commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Company Termination Fee or any portion thereof or in an Order against Parent for the Parent Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub or Parent shall pay the Company, as the case may be, their reasonable and documented out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Company Termination Fee or the Parent Termination Fee, as the case may be (or or, in each case, any portion thereof that has not been paid timely in accordance with this Agreement) ), and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable ~~to Tempranillo~~ pursuant to this Section ~~11.04~~ 9.04 shall be paid to ~~Tempranillo~~ Parent or the Company, as the case may be, by wire transfer of immediately available funds. ~~Tempranillo~~ Parent shall promptly provide ~~Lafite~~ the Company and the Company shall provide Parent, in each case, upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (hi) ~~If Tempranillo fails~~ Notwithstanding anything in this Agreement to ~~pay~~ the ~~Tempranillo~~ contrary, (i) Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Sections 9.04(b)-(d) and any payments pursuant to Section 9.04(h), shall be the sole and exclusive remedy of any of Parent, Merger Sub or any ~~portion thereof~~ of their respective Affiliates or representatives against the Company and ~~Lafite commences~~ any of its former, current or future officers, directors, partners, stockholders, Company Stock Option holders, managers, members or Affiliates (collectively, the “Company Related Parties”) for any loss suffered as a ~~suit which results in an Order against Tempranillo~~ result of the failure of the Transactions to be consummated or for a breach hereunder or otherwise (whether such breach was a Willful Breach or otherwise), and upon payment of the ~~Tempranillo~~ Company Termination Fee and any amounts owed pursuant to Section 9.04(h), none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Debt Commitment Letter or the Transactions and (ii) if Parent (or its designee) received any ~~portion thereof~~payments from the Company in respect of any breach of this Agreement, ~~Tempranillo shall pay Lafite~~ and thereafter Parent (or its ~~costs and expenses (including reasonable attorney’s fees and disbursements~~designee) ~~in connection with such suit, together with interest on~~ is entitled to receive the ~~Tempranillo~~ Company Termination Fee ~~(or any portion thereof that has not been paid timely in accordance with~~ under this ~~Agreement) and on~~ Section 9.04, the amount of such ~~costs and expenses~~Company Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent (or its designee) in respect of any such breaches of this Agreement. (j) Notwithstanding anything in this Agreement to the contrary, ~~in each case,~~ (i) the Company’s right to receive payment from ~~and including~~ Parent of the date payment of such amount was due to through 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. Any amounts payable to Lafite Parent Termination Fee pursuant to ~~this~~ Section ~~11.04 shall be paid to Lafite by wire transfer of immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make~~ 9.04(e), any payments pursuant to Section 9.04(h) and any payments pursuant to Section 6.07(c) shall be the sole and exclusive remedy of the Company or any of its Affiliates or representatives against Parent, Merger Sub and any of their respective former, current or future officers, directors, partners, stockholders, equity holders, managers, members, Affiliates and Debt Financing Sources (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the Transactions to be consummated or for a breach hereunder or otherwise (whether such breach was a Willful Breach or otherwise), and upon payment of the Parent Termination Fee and any mounts owed pursuant to Section 9.04(h), none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions and (ii) if the Company (or its designee) received any payments from Parent in respect of any breach of this Agreement, and thereafter the Company (or its designee) is entitled to receive the Parent Termination Fee under this Section ~~11.04~~9.04, the amount of such Parent Termination Fee shall be reduced by the aggregate amount of any payments made by Parent to the Company (or its designee) in respect of any such breaches of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (SecureWorks Corp)

Fees; Expenses. (a) Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses. (b) If this Agreement is ~~terminated: (i)~~ terminated by ~~Tempranillo~~ the Company pursuant to Section ~~10.01(c)(i~~8.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , prior to ~~the Lafite Stockholders Meeting a Lafite Takeover Proposal shall have been made (whether~~ or ~~not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (B) within twelve (12) months after the date of~~ concurrently with such termination, (x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Tempranillo pursuant to Section 10.01(c)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Lafite Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (2) a Lafite Takeover Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite Company shall pay (or cause to be paid to) ~~Tempranillo, at the time specified in the following sentence,~~ Parent a fee in the amount of $~~562,810,000~~ 290,000,000 (the “~~Lafite~~ Termination Fee”)~~. The Lafite Termination Fee shall be paid as follows:~~ . (xc) ~~in the case of clause (ii) of~~ If this Agreement is terminated by Parent pursuant to Section ~~11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b~~8.01(c)(i), ~~prior to or concurrently with, and as a condition to,~~ then the ~~effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo),~~ Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement~~; and~~ , pay (zor cause to be paid to) Parent the Termination Fee. (d) If this Agreement is terminated (i) (A) by Parent or the Company pursuant to Section 8.01(b)(i) (but in the case of ~~clauses~~ a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 8.01(b)(i)) or (B) by Parent pursuant to Section 8.01(c)(ii), (ii) at any time on or after the date of this Agreement and prior to such termination a bona fide Acquisition Proposal shall have been publicly made or otherwise become publicly known and not publicly withdrawn prior to such termination, and (iii) ~~and~~ within twelve (iv12) months after the date of ~~this Section 11.04(b)~~such termination, (A) the Company enters into an Alternative Acquisition Agreement providing for an Acquisition Transaction or (B) an Acquisition Transaction is consummated, then, the Company shall pay (or cause to be paid to) Parent the Termination Fee concurrently with ~~the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2)~~ the consummation of any such ~~Lafite Takeover~~ Acquisition Transaction~~. For~~ ; provided, however, that, for purposes ~~of clauses (iii) and (iv)~~ of this Section ~~11.04(b~~9.04(d), all references to “~~fifteen~~ twenty percent (1520%)” in the definition of ~~Lafite Takeover~~ Acquisition Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (B) within twelve (12) months after the date of such termination, (x) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover Transaction is consummated; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii), and (x) at any time on or after the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo shall pay (or cause to be paid to) Lafite, at the time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references to “fifteen percent (15%)” in the definition of Tempranillo Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (de) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (ef) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement. (f) Notwithstanding anything to the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If ~~Lafite~~ the Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the ~~Lafite~~ Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable ~~to Tempranillo~~ pursuant to this Section ~~11.04~~ 9.04 shall be paid to ~~Tempranillo~~ Parent by wire transfer of immediately available funds. ~~Tempranillo~~ Parent shall promptly provide ~~Lafite~~ the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (h) ~~If Tempranillo fails~~ Notwithstanding anything in this Agreement to ~~pay~~ the ~~Tempranillo~~ contrary, if Parent receives payment from the Company of the Termination Fee pursuant to Sections 9.04(b) - (d) (i) Parent’s right to receive payment from the Company of the Termination Fee pursuant to Sections 9.04(b) - (d) and any payments pursuant to Section 9.04(g) shall be the sole and exclusive remedy of any of Parent, Merger Sub or any ~~portion thereof~~ of their respective Affiliates or representatives against the Company and ~~Lafite commences~~ any of its former, current or future officers, directors, partners, stockholders, Company Stock Option holders, Company Restricted Share holders, managers, members or Affiliates (collectively, the “Company Related Parties”) for any loss suffered as a ~~suit which results~~ result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of the Termination Fee, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions and (ii) if Parent (or its designee) received any payments from the Company in ~~an Order against Tempranillo for~~ respect of any breach of this Agreement, and thereafter Parent (or its designee) is entitled to receive the ~~Tempranillo~~ Termination Fee ~~or any portion thereof~~under this Section 9.04, Tempranillo shall pay Lafite its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section 11.04 Termination Fee shall be ~~paid to Lafite~~ reduced by ~~wire transfer~~ the aggregate amount of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor the wire transfer information required to make~~ any payments ~~pursuant~~ made by the Company to Parent (or its designee) in respect of any such breaches of this ~~Section 11.04~~Agreement.

Appears in 1 contract

Samples: Merger Agreement (Medicines Co /De)

Fees; Expenses. (a) Except as otherwise ~~expressly~~ provided ~~in this Agreement~~herein, all costs and expenses incurred in connection with this Agreement ~~and the Transactions~~ shall be paid by the party incurring such ~~costs~~ cost or ~~expenses~~expense. (b) If this Agreement is ~~terminated: (i) by Tempranillo~~ terminated pursuant to Section ~~10.01(c)(i~~8.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) at a time when this Agreement was terminable by Tempranillo pursuant to Section 10.01(c)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iii) and (A) at or , prior to ~~the Lafite Stockholders Meeting~~ and as a ~~Lafite Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn)~~ condition to the ~~Lafite Board or become publicly known, and (B) within twelve (12) months after the date~~ effectiveness of such termination, the Company shall pay Parent a fee in immediately available funds in the amount of $480,000 (~~x) Lafite enters into an Alternative Lafite Acquisition Agreement providing for a Lafite Takeover Transaction or (B) a Lafite Takeover Transaction is consummated;~~the “Termination Fee”). (ivc) If this Agreement is terminated by ~~(A) Tempranillo or Lafite~~ Parent pursuant to Section ~~10.01(b)(i~~8.01(c) or (Bother than pursuant to clause (iii) ~~by Tempranillo~~ thereof), then the Company shall promptly, but in no event later than one (1) Business Day after termination of this Agreement, pay Parent the Termination Fee in immediately available funds. (d) If this Agreement is terminated pursuant to Section ~~10.01(c)(ii),~~ 8.01(b)(i) or Section 8.01(c)(iii) and (xi) at any time on or after the date of this Agreement and prior to such termination ~~a Lafite Takeover~~ an Acquisition Proposal shall have been made ~~(whether or not conditional and whether or not withdrawn)~~ to the ~~Lafite~~ Company Board or ~~become~~ the Company or publicly ~~known~~announced, and (yii)(A) within twelve (12) months after the date of such termination, ~~(1) Lafite~~ the Company enters into a definitive acquisition agreement that provides for an ~~Alternative Lafite~~ Acquisition ~~Agreement providing for a Lafite Takeover~~ Transaction ~~or (2) a Lafite Takeover~~ and thereafter such Acquisition Transaction is consummated; or (v) by Lafite pursuant to Section 10.01(d)(iii); then, in any such case, Lafite shall pay (or cause to be paid to) Tempranillo, at the time specified in the following sentence, a fee in the amount of $562,810,000 (the “Lafite Termination Fee”). The Lafite Termination Fee shall be paid as follows: (x) in the case of clause (ii) of this Section 11.04(b) (if such termination is by Lafite) and clause (v) of this Section 11.04(b), prior to or concurrently with, and as a condition to, the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(b) or clause (ii) of this Section 11.04(b) (if such termination is by Tempranillo), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(b), concurrently with the earlier of (1) the entry into such Alternative Lafite Acquisition Agreement and (2) the consummation of any such Lafite Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(b), all references to “fifteen percent (15%)” in the definition of Lafite Takeover Transaction shall be deemed to be references to “fifty percent (50%)”. (c) If this Agreement is terminated: (i) by Lafite pursuant to Section 10.01(d)(i); (ii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) at a time when this Agreement was terminable by Lafite pursuant to Section 10.01(d)(i); (iii) by Tempranillo or Lafite pursuant to Section 10.01(b)(iv) and (A) at or prior to the Tempranillo Stockholders Meeting a Tempranillo Takeover Proposal shall have been made consummated (whether or not ~~conditional and whether~~ such consummation occurs within or ~~not withdrawn~~after such twelve (12) ~~to the Tempranillo Board~~ month period) or ~~become publicly known, and~~ (B) within twelve (12) months after the date of such ~~termination, (x) Tempranillo enters into an Alternative Tempranillo~~ termination any Acquisition ~~Agreement providing for a Tempranillo Takeover Transaction or (B) a Tempranillo Takeover~~ Transaction is consummated~~; (iv) by (A) Tempranillo or Lafite pursuant to Section 10.01(b)(i) or (B) by Lafite pursuant to Section 10.01(d)(ii)~~, ~~and (x) at any time on or after~~ then the date of this Agreement and prior to such termination a Tempranillo Takeover Proposal shall have been made (whether or not conditional and whether or not withdrawn) to the Tempranillo Board or become publicly known, and (y) within twelve (12) months after the date of such termination, (1) Tempranillo enters into an Alternative Tempranillo Acquisition Agreement providing for a Tempranillo Takeover Transaction or (2) a Tempranillo Takeover Transaction is consummated; or (v) by Tempranillo pursuant to Section 10.01(c)(iii); then, in any such case, Tempranillo Company shall pay ~~(or cause to be paid to) Lafite, at~~ Parent the ~~time specified in the following sentence, a fee in the amount of $712,330,000 (the “Tempranillo Termination Fee”). The Tempranillo~~ Termination Fee ~~shall be paid as follows: (x)~~ on the second Business Day after such event in ~~the case of clause (ii)~~ immediately available funds; provided, however, that for purposes of this Section ~~11.04(c) (if such termination is by Tempranillo) and clause (v) of this Section 11.04(c~~9.04(d), ~~prior~~ the term “Acquisition Transaction” shall have the meaning assigned to ~~or concurrently with, and as a condition to,~~ such term in Article 1 except that the effectiveness of any such termination; (y) in the case of clause (i) of this Section 11.04(c) or clause (ii) of this Section 11.04(c) (if such termination is by Lafite), promptly, but in no event later than two (2) Business Days after termination of this Agreement; and (z) in the case of clauses (iii) and (iv) of this Section 11.04(c), concurrently with the earlier of (1) the entry into such Alternative Tempranillo Acquisition Agreement and (2) the consummation of any such Tempranillo Takeover Transaction. For purposes of clauses (iii) and (iv) of this Section 11.04(c), all references reference to “fifteen percent (15%)” ~~in the definition of Tempranillo Takeover Transaction~~ therein shall be deemed to be ~~references~~ a reference to “fifty percent (50%).” (e) If this Agreement is terminated pursuant to Section 8.01(b)(i) at a time when all Offer Conditions have been satisfied or waived other than the Minimum Tender Condition, (ii) the failure of the Offer to be consummated does not result from the breach of this Agreement by Parent or Merger Sub, and (iii) and a Termination Fee is not otherwise payable pursuant to this Section 9.04 in connection with such termination, then the Company shall promptly, but in no event later than one (1) Business Day after delivery to the Company of a notice of demand for payment for all expenses of Parent or Merger Sub incurred in connection with the Transactions, pay Parent an amount equal to the amount of such expenses (not to exceed $350,000 in the aggregate) for which Parent has not theretofore been reimbursed by the Company. Such expenses shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants) incurred by or on behalf of Parent or Merger Sub in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the Tender Agreement and the Transactions. Any amount paid pursuant to this Section 9.04(e), may be deducted from any amount that is subsequently paid under Section 9.04(d). (df) For the avoidance of doubt, any payment made by ~~Lafite or Tempranillo~~ the Company under this Section ~~11.04~~ 9.04 shall be payable only once with respect to this Section ~~11.04~~ 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof. (eg) ~~Each of Lafite and Tempranillo~~ The Company acknowledges that the agreements contained in this Section ~~11.04~~ 9.04 are an integral part of the Transactions and that without such provisions ~~Tempranillo~~ Parent and Merger Sub ~~or Lafite, as the case may be,~~ would not have entered into this Agreement~~. (f) Notwithstanding anything to~~ . If the contrary contained in this Section 11.04 or elsewhere in this Agreement, in the event this Agreement is terminated by (i) Lafite for any reason at a time when Tempranillo would have had the right to terminate this Agreement, Tempranillo shall be entitled to receipt of any Lafite Termination Fee that would have been (or would have subsequently become) payable had Tempranillo terminated this Agreement at such time, and (ii) Tempranillo for any reason at a time when Lafite would have had the right to terminate this Agreement, Lafite shall be entitled to receipt of any Tempranillo Termination Fee that would have been (or would have subsequently become) payable had Lafite terminated this Agreement at such time. (g) If Lafite Company fails to pay the ~~Lafite~~ Termination Fee or any portion thereof and ~~Tempranillo~~ Parent or Merger Sub commences a suit which results in an Order against ~~Lafite~~ the Company for the ~~Lafite~~ Termination Fee or any portion thereof, ~~Lafite~~ the Company shall pay ~~Tempranillo~~ Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Lafite Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. ~~Any amounts payable to Tempranillo pursuant to this Section 11.04 shall be paid to Tempranillo by wire transfer of immediately available funds. Tempranillo~~ Parent shall promptly provide ~~Lafite~~ to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section ~~11.04~~9.04. (h) ~~If Tempranillo fails~~ Other than with respect to ~~pay~~ an Intentional Breach of this Agreement by the ~~Tempranillo~~ Company, in the event that the Termination Fee or ~~any portion thereof and Lafite commences a suit which results~~ the expenses of Parent or Merger Sub incurred in ~~an Order against Tempranillo for~~ connection with the ~~Tempranillo~~ Transactions (the “Parent Expenses”) (or both) are paid by the Company as required by this Section 9.04, Parent’s right to receive payment from the Company of such Termination Fee or ~~any portion thereof, Tempranillo shall pay Lafite its costs and~~ such expenses (~~including reasonable attorney’s fees and disbursements~~or both) in connection with such suit, together with interest on the Tempranillo Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case, from and including the date payment of such amount was due to through 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. Any amounts payable to Lafite pursuant to this Section ~~11.04~~ 9.04 shall constitute the sole and exclusive remedy of Parent, Merger Sub and their Affiliates and Representatives against the Company and its Subsidiaries and any of their respective former, current or future Representatives, owners, managers, employees, Affiliates or assignees (collectively, the “Company-Related Parties”) for all damages, costs, fees, expenses, Liabilities, penalties or losses of any kind suffered as a result of or in connection with this Agreement (including the negotiation, execution, performance or breach thereof), the failure of the Transactions to be ~~paid~~ consummated or otherwise, and upon payment of such amount, none of the Company-Related Parties shall have any further Liability or obligation relating to ~~Lafite by wire transfer~~ or arising out of ~~immediately available funds. Lafite shall promptly provide Tempranillo upon request therefor~~ this Agreement or the ~~wire transfer information required to make~~ Transactions under any ~~payments~~ theory of law or equity, contract, tort or otherwise; provided, that the payment of the Parent Expenses pursuant to Section 9.04(e) shall not affect Parent’s right to receive the Termination Fee pursuant to Section 9.04(d) except to the extent set forth in the last sentence of Section 9.04(e); and provided, further, that nothing in this Section ~~11.04~~9.04(h) shall limit any right or remedy of Parent or Merger Sub with respect to an Intentional Breach of this Agreement by the Company or relieve the Company of any Liability with respect to its Intentional Breach of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Daegis Inc.)

Common use of Fees; Expenses Clause in Contracts