Fees; Expenses. (a) 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 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Agreement, an Acquisition Proposal shall have been publicly announced and shall not have been publicly and irrevocably withdrawn prior to such termination of this Agreement, and (B) within nine (9) months following such termination of this Agreement, either (1) the transaction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 contemplated hereby shall be paid by the party incurring such expenses.
Appears in 2 contracts
Samples: Offer Agreement (Earthlink Inc), Offer Agreement (Peoplepc Inc)
Fees; Expenses. (a) The Company agrees to pay Parent in immediately available funds by wire transfer an amount equal to $1,000,000 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 applicable, pursuant to Sections Section 7.1(b)(i) or (iiSection 7.1(b)(ii) hereof prior to which no Triggering Event has occurredhereof, 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 Agreementunconditionally withdrawn, and (B) within nine twelve (912) months following such termination of this Agreement, either (1) the transaction contemplated by an any Acquisition Proposal (a "COMPANY ACQUISITION") is consummatedconsummated (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) 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 contemplated hereby shall be paid by the party incurring such expenses., 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) the filing, printing and mailing of the Registration Statement, the Preliminary Prospectus, the Offer Documents, the Post-Effective Amendment and the Proxy Statement and any amendments or supplements thereto and (ii) the filing by any of the parties hereto of the Pre-Merger Notification and Report Forms relating to the Offer and the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign Antitrust Law. No party shall pay any expenses of any stockholder of the Company. -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) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 contemplated hereby Transactions shall be paid by the party incurring such costs or expenses.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(d)(i), prior to or concurrently with, and as a condition to, the effectiveness of any such termination, the Company shall pay (or cause to be paid to) Parent a fee in the amount of $51,500,000 (the “Termination Fee”).
(c) If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i), then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement, pay (or 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 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) within twelve (12) months after the date of 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 consummation of any such Takeover Transaction; provided, however, that, for purposes of this Section 9.04(d)(iii), all references to “twenty percent (20%)” in the definition of Takeover Transaction shall be deemed to be references to “fifty percent (50%).”
(e) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that: (i) in no event shall the Company be obligated to pay the Termination Fee on more than occasion; and (ii) Parent’s right to receive payment from the Company of the Termination Fee pursuant to this Section 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”) 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 or the Transactions, and (subject to the proviso below) no Person shall be entitled to bring or maintain any Proceeding against the Company or any of its Affiliates or any of its Representatives arising out of, relating to, or in connection with this Agreement or any of the Transactions; provided, however, that nothing in this Section 9.04(e) shall limit the rights of Parent or Merger Sub in the case of Willful Breach.
(f) Each of Parent, Merger Sub and the Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions none of the parties would have entered into this Agreement.
(g) If the Company fails to timely pay the Termination Fee in accordance with Section 9.04(b), (c) or (d), as applicable, or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay 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 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 pursuant to this Section 9.04 shall be paid to Parent by wire transfer of immediately available funds. Parent shall promptly provide the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alexion Pharmaceuticals, Inc.), Merger Agreement (Portola Pharmaceuticals Inc)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 contemplated hereby Transactions shall be paid by the party incurring such costs or expenses.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(d)(i), then prior to or concurrently with such termination, the Company shall pay Parent a fee in the amount of $19,000,000 (the “Termination Fee”).
(c) If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i), then the Company shall promptly, but in no event later than two (2) 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) (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)) or by Parent pursuant to Section 8.01(c)(ii) because the Company breached or failed to perform a covenant under this Agreement or Willfully Breached one of the Company’s representations and warranties and (i) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal, or the intention of a Third Party to make an Acquisition Proposal, shall have been publicly made or otherwise become publicly known (unless publicly withdrawn prior to such termination), and (ii) within twelve (12) months after the date of such termination, (A) the Company enters into an Alternative Acquisition Agreement or (B) any Acquisition Transaction is consummated, then, the Company shall pay Parent the Termination Fee prior to, or concurrently with, the earlier to occur of entry into an Alternative Acquisition Agreement in respect of or consummation of an Acquisition Transaction; provided, however, that, for purposes of this Section 8.03(d), all references to “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “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.
(e) For the avoidance of doubt, any payment made by the Company under this Section 8.03 shall be payable only once with respect to this Section 8.03 and not in duplication even though such payment may be payable under one or more provisions hereof.
(f) The Company acknowledges that the agreements contained in this Section 8.03 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have entered into this Agreement.
(g) If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay 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 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 pursuant to this Section 8.03 shall be paid to Parent by wire transfer of immediately available funds. Parent shall promptly provide the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 8.03.
(h) Notwithstanding anything herein to the 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 pursuant to Sections 8.03(b) and (c) and 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 Agreement or the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Gurnet Holding Co), Merger Agreement (Corium International, Inc.)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise provided herein, all costs and expenses incurred in immediately available funds connection with this Agreement shall be paid by wire transfer an amount equal to $1,000,000 (the "TERMINATION FEE") if:party incurring such cost or expense.
(ib) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof;
(ii) this Agreement is terminated by Parent or the Company, as 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) If this Agreement is terminated by the Company pursuant to Section 7.1(d) hereof8.01(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”).
(bc) The 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) Parent or the Company pursuant to Section 8.01(b)(i) or (ii) by Parent pursuant to Section 8.01(c)(iii) (other than in the case of this clause (ii) as a result of a breach of the representations or warranties of the Company in this Agreement resulting from a change in facts or circumstances (as opposed to resulting from actions of the Company) that occurred after the date of this Agreement) and (A) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal shall have been made to the Company Board or the Company or publicly announced and (B) (1) within twelve (12) months after the date of such termination, the Company enters into a definitive acquisition agreement that provides for an Acquisition Transaction and thereafter an Acquisition Transaction is consummated (whether or not such consummation occurs within or after such twelve (12) month period) or (2) within twelve (12) months after the date of such termination, any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee on the third (3rd) Business Day after such consummation in immediately available funds; provided, however, that for purposes of this Section 9.04(d), the term “Acquisition Transaction” shall have the meaning assigned to such term in Article 1 except that the reference to “fifteen percent (15%)” therein shall be deemed to be 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 7.3 9.04(e), may be deducted from any amount that is subsequently paid under Section 9.04(d).
(if all conditions thereto f) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(g) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have been satisfiedentered into this Agreement. If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) (i) at or prior in connection with such suit. Parent shall promptly provide to the termination Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
(h) Subject to 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 Company, in the event that the Termination Fee and/or the 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 and/or the Parent Expenses pursuant to this Section 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 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; 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 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 in or relieve the circumstances described in Section 7.3(a)(iii) hereof, (ii) not later than one (1) business day after the termination Company of any Liability with respect to its Intentional Breach 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) hereofAgreement.
(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 contemplated hereby shall be paid by the party incurring such expenses.
Appears in 2 contracts
Samples: Merger Agreement (Open Text Corp), Merger Agreement (Actuate Corp)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise provided herein, all costs and expenses incurred in immediately available funds connection with this Agreement shall be paid by wire transfer an amount equal to $1,000,000 (the "TERMINATION FEE") if:party incurring such cost or expense.
(ib) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof;
(ii) this Agreement is terminated by Parent or the Company, as 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) If this Agreement is terminated by the Company pursuant to Section 7.1(d) hereof.
(b) The 8.01(d)(i), the Company shall pay Parent (or an account designated by Parent) 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) hereofsubstantially concurrently with such termination.
(c) For purposes If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i) or Section 8.01(c)(ii) then the Company shall promptly, but in no event later than two (2) Business Days after termination of Sections 7.3(a) and 7.3(b) hereofthis Agreement, pay Parent 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%"Termination Fee.
(d) All 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) as a result of an Intentional and Knowing Breach by the Company of any of the representations, warranties, covenants or other agreements contained in this Agreement and (i) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal shall have been publicly announced (and not publicly withdrawn) and (ii) (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 such consummation occurs before or after such twelve (12) month period), or (B) within twelve (12) months after the date of such termination, any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee promptly, but in no event later than five (5) Business Days after such consummation; provided, however, that for purposes of this Section 9.04(d), the term “Acquisition Transaction” shall have the meaning assigned to such term in Article 1 except that the reference to “fifteen percent (15%)” therein shall be deemed to be a reference to “fifty percent (50%).”
(e) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(f) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have entered into this Agreement. Parent shall promptly provide to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04. If the Company fails to pay the Termination Fee and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall reimburse Parent and Merger Sub for their reasonable and documented, out-of-pocket costs and expenses incurred (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, 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 such suit.
(g) Notwithstanding anything to the 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 (as applicable) pursuant to this Section 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 consummated or otherwise, and upon payment of such amount, none of the transactions contemplated hereby Company-Related Parties shall be paid by have any further Liability or obligation relating to or arising out of this Agreement or the party incurring such expensesTransactions under any 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) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 contemplated hereby Transactions shall be paid by the party incurring such costs or expenses.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(d)(i), prior to or concurrently with such termination, the Company shall pay (or cause to be paid to) Parent a fee in the amount of $290,000,000 (the “Termination Fee”).
(c) If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i), then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement, pay (or 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 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) within twelve (12) months after the date of 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 consummation of any such Acquisition Transaction; provided, however, that, for purposes of this Section 9.04(d), all references to “twenty percent (20%)” in the definition of Acquisition Transaction shall be deemed to be references to “fifty percent (50%)”.
(e) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(f) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have entered into this Agreement.
(g) If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay 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 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 pursuant to this Section 9.04 shall be paid to Parent by wire transfer of immediately available funds. Parent shall promptly provide the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
(h) Notwithstanding anything in this Agreement to the 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 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 Share 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 Agreement or the Transactions and (ii) if Parent (or its designee) received any payments from the Company in respect of any breach of this Agreement, and thereafter Parent (or its designee) is entitled to receive the Termination Fee under this Section 9.04, the amount of such 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.
Appears in 1 contract
Samples: Merger Agreement (Medicines Co /De)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 all costs and expenses incurred in connection with this Agreement shall have been publicly announced and shall not have been publicly and irrevocably withdrawn prior to be paid by the party incurring 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, costs or (2) the Company enters into a definitive agreement providing for a Company Acquisition and such Company Acquisition is later consummated; orexpenses.
(iiib) If this Agreement is terminated by the Company pursuant to Section 7.1(d8.01(d)(i), prior to or concurrently with such termination, the Company shall pay Parent a fee in immediately available funds in the amount of one hundred and sixty-nine million dollars ($169,000,000) hereof(the “Termination Fee”).
(bc) The If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i) or Section 8.01(c)(iii), then the Company shall pay the Termination Fee paid pursuant to this Section 7.3 promptly, but in no event later than two (if all conditions thereto have been satisfied2) (i) at or prior to the Business Days after termination of this Agreement, pay Parent the Termination Fee.
(d) If this Agreement is terminated by Parent or the Company in the circumstances described in pursuant to Section 7.3(a)(iii8.01(b)(i) 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 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)) and (i) at any time on or after the date of this Agreement and prior to such termination a bona fide Acquisition Proposal shall have been made to the Company Board or the Company and publicly announced or publicly known (unless publicly withdrawn prior to such termination), and (ii) within nine (9) months after the date of such termination, (A) the Company enters into an Alternative Acquisition Agreement or (B) any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee prior to entry into an Alternative Acqusition Agreement in respect of or consummation of an Acquisition Transaction; provided, however, that, for purposes of this Section 9.04(d), all references to “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “50%”.
(e) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable pursuant only once with respect to this Section 7.3(a)(ii) 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(cf) For purposes The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of Sections 7.3(athe Transactions and that without such provisions Parent and Merger Sub would not have entered into this Agreement.
(g) If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay 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 Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and 7.3(b) hereofon the amount of such costs and expenses, in each case from and including the definition date payment of "ACQUISITION PROPOSAL" 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. Parent shall promptly provide the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 5.4 hereof shall be modified to replace "15%", as it appears in such definition, with "30%"9.04.
(h) Notwithstanding anything herein to the 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 pursuant to Section 9.04(b) — (d) All costs and expenses incurred in connection with 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 Agreement and or the transactions contemplated hereby shall be paid by the party incurring such expensesTransactions.
Appears in 1 contract
Fees; Expenses. (a) 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 CompanyExcept as otherwise provided herein, as 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 contemplated hereby shall be paid by the party incurring such cost or expense.
(b) If this Agreement is 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) Buyer, Seller or Parent pursuant to Section 9.01(b)(i) or Section 9.01(b)(iv) or (ii) Buyer pursuant to Section 9.01(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 termination pursuant to Section 9.01(b)(iv)) an Acquisition Proposal shall have been publicly announced (and not publicly withdrawn) and (y) within twelve (12) months after the date of such termination, Seller or Parent (or any of their Affiliates) enters into a definitive agreement or agreements with respect to one or more Acquisition Proposals, and thereafter the Acquisition Transaction(s) contemplated by such Acquisition Proposal(s) is (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 Seller to) pay Buyer the Termination Fee, less any Buyer Expenses previously paid by or on behalf of Seller or 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 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 aggregate (“Buyer Expenses”).
(f) For the avoidance of doubt, any payment made by 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).
(g) The parties acknowledge and agree that (i) the agreements contained in this Section 11.04 are an integral part of the Transactions, (ii) without such provisions the other parties would not have entered into this Agreement and (iii) the Termination Fee and/or the Buyer Expenses shall constitute liquidated damages and not a penalty. Accordingly, if Seller shall fail to pay the Termination Fee and/or the Buyer Expenses when due, Seller and Parent shall reimburse Buyer for all reasonable costs and expenses incurred by Buyer (including reasonable fees and expenses of counsel) in connection with the collection and enforcement of this Section 11.04 and pay to Buyer any interest on the unpaid amount under this Section 11.04, accruing from its due date, at an interest rate per annum equal to two (2) percentage points in excess of the 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 the date of such change in such prime rate. Buyer shall promptly provide to Seller upon request therefor the wire transfer information required to make any payments pursuant to this Section 11.04.
(h) Notwithstanding anything to the 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 and/or the 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 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 consummated or otherwise, and upon payment of such amount, none of the Seller-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.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Actua Corp)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise provided herein, all costs and expenses incurred in immediately available funds connection with this Agreement shall be paid by wire transfer an amount equal to $1,000,000 (the "TERMINATION FEE") if:party incurring such cost or expense.
(ib) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof;
(ii) this Agreement is terminated by Parent or the Company, as 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) If this Agreement is terminated by the Company pursuant to Section 7.1(d) hereof.
(b) The 8.01(d)(i), 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 Parent a fee by wire transfer of this Agreement by the Company immediately available funds in the circumstances described amount of $9,000,000 in Section 7.3(a)(iiicash (the “Termination Fee”) 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) hereofsubstantially concurrently with such termination.
(c) For purposes If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i) or Section 8.01(c)(ii) then the Company shall promptly, but in no event later than two Business Days after termination of Sections 7.3(a) and 7.3(b) hereofthis Agreement, pay Parent 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%"Termination Fee.
(d) All If this Agreement is terminated by Parent or the Company (only if Parent would be entitled to terminate this Agreement) pursuant to Section 8.01(b)(i) or by Parent pursuant to Section 8.01(c)(iii)(A) as a result of an Intentional and Knowing Breach and (i) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal shall have been made to the Company Board or the Company or publicly announced and (ii) (A) within 12 months after the date of such termination, the Company enters into a definitive agreement to engage in an Acquisition Transaction, or (B) within 12 months after the date of such termination, any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee promptly, but in no event later than two Business Days after the first to occur of the entry or consummation described in clause (ii); provided, however, that for purposes of this Section 9.04(d), the term “Acquisition Transaction” shall have the meaning assigned to such term in Article 1 except that the reference to “15%” therein shall be deemed to be a reference to “50%.”
(e) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(f) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have entered into this Agreement. If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a Proceeding to obtain such payment which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay Parent and Merger Sub their costs and expenses incurred (including reasonable attorney’s fees and disbursements) in connection with such Proceeding (collectively, the “Fees”); provided, however, that if such Proceeding does not result in an Order against the Company for the Termination Fee or portion thereof, as applicable, Parent shall pay the Company’s Fees. The Company or Parent, as applicable, shall promptly provide the other party upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
(g) Notwithstanding anything to the 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 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 pursuant to this Section 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 transactions contemplated hereby 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 by subject in all respects to Section 9.09, it being understood that Parent and Merger Sub shall be entitled to enforce all of their rights under this Agreement prior to the party incurring 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 8.01, or the amount of the Termination Fee that Parent shall become entitled to receive as a result of such expensestermination, as a basis to oppose any of the remedies as provided in Section 9.09.
Appears in 1 contract
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise provided herein, all costs and expenses incurred in immediately available funds connection with this Agreement shall be paid by wire transfer an amount equal to $1,000,000 (the "TERMINATION FEE") if:party incurring such cost or expense.
(ib) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof;
(ii) this Agreement is terminated by Parent or the Company, as 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) If this Agreement is terminated by the Company pursuant to Section 7.1(d8.01.(d)(i), the Company shall pay to Parent or an account designated by Parent a fee in immediately available funds in the amount of $5,512,802 (the “Termination Fee”) hereofsubstantially concurrently with such termination.
(bc) The If this Agreement is terminated by Parent pursuant to Section 8.01.(c)(i) or Section 8.01.(c)(ii) then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement, pay Parent the Termination Fee paid 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) as a result of an Intentional and Knowing Breach by the Company of any of the representations, warranties, covenants or other agreements contained in this Section 7.3 (if all conditions thereto have been satisfied) Agreement and (i) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal shall have been publicly announced (and not publicly withdrawn) and (ii) (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 such consummation occurs before or after such twelve (12) month period), or (B) within twelve (12) months after the date of such termination, any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee (less any Parent Expenses previously reimbursed pursuant to Section 9.04.(e)) promptly, but in no event later than two (2) Business Days after such consummation; provided, however, that for purposes of this Section 9.04.(d), the term “Acquisition Transaction” shall have the meaning assigned to such term in Article 1 except that the reference to “fifteen percent (15%)” therein shall be deemed to be 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 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)(ii9.04.(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).
(f) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(cg) For purposes The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of Sections 7.3(a) the Transactions and 7.3(b) hereofthat without such provisions Parent and Merger Sub would not have entered into this Agreement. Parent shall promptly provide to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04. If the Company fails to pay the Termination Fee or Parent Expenses or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or Parent Expenses or any portion thereof, the definition of "ACQUISITION PROPOSAL" set forth Company shall reimburse Parent and Merger Sub for their reasonable and documented, out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in Section 5.4 hereof 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 Parent Expenses or any portion thereof, Parent shall be modified to replace "15%"reimburse the Company for its reasonable and documented, as it appears out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such definition, with "30%"suit.
(dh) All costs Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.09 (which shall not be limited by Section 9.04.(a)), in the event that the Termination Fee and/or the Parent Expenses (as applicable) 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 and/or the Parent Expenses (as applicable) pursuant to this Section 9.04 shall constitute the sole and expenses incurred 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 transactions contemplated hereby Company-Related Parties shall be paid 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; provided, that nothing in this Section 9.04.(a) shall limit any right or remedy of Parent or Merger Sub with respect to fraud by the party incurring such expensesCompany or relieve the Company of any liability with respect to fraud.
Appears in 1 contract
Samples: Merger Agreement (Cdi Corp)
Fees; Expenses. (a) The Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
(b) If this Agreement is terminated pursuant to Section 8.01(d)(i), prior to and as a condition to the effectiveness of such termination, the Company agrees to shall pay Parent a fee in immediately available funds by wire transfer an in the amount equal to of $1,000,000 480,000 (the "TERMINATION FEE") if:“Termination Fee”).
(ic) If this Agreement is terminated by Parent pursuant to Section 7.1(c8.01(c) hereof;(other than pursuant to clause (iii) 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.
(iid) If this Agreement is terminated by Parent or the Company, as applicable, pursuant to Sections 7.1(b)(iSection 8.01(b)(i) or Section 8.01(c)(iii) and (iii) hereof prior to which no Triggering Event has occurred, if (A) following at any time on or after the date hereof of this Agreement and prior to such termination of this Agreement, an Acquisition Proposal shall have been made to the Company Board or the Company or publicly announced and shall not have been publicly and irrevocably withdrawn prior to such termination of this Agreementannounced, and (Bii)(A) within nine twelve (912) months following after the date of such termination of this Agreementtermination, either (1) the transaction contemplated by an Acquisition Proposal (a "COMPANY ACQUISITION") is consummated, or (2) the Company enters into a definitive acquisition agreement providing that provides for an Acquisition Transaction and thereafter such Acquisition Transaction is consummated (whether or not such consummation occurs within or after such twelve (12) month period) or (B) within twelve (12) months after the date of such termination any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee on the second Business Day after such event in immediately available funds; provided, however, that for purposes of this Section 9.04(d), the term “Acquisition Transaction” shall have the meaning assigned to such term in Article 1 except that the reference to “fifteen percent (15%)” therein shall be deemed to be a Company Acquisition and such Company Acquisition is later consummated; orreference to “fifty percent (50%).”
(iiie) If this Agreement is terminated by the Company pursuant to Section 7.1(d8.01(b)(i) hereof.
at a time when all Offer Conditions have been satisfied or waived other than the Minimum Tender Condition, (bii) The 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 Termination Fee 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 7.3 9.04(e), may be deducted from any amount that is subsequently paid under Section 9.04(d).
(if all conditions thereto f) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(g) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have been satisfiedentered into this Agreement. If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay Parent and Merger Sub their costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit. Parent shall promptly provide to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
(h) Other than with respect to an Intentional Breach of this Agreement by the Company, in the event that the Termination Fee or the expenses of Parent or Merger Sub incurred in connection with the Transactions (the “Parent Expenses”) (ior both) at 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 prior such expenses (or both) pursuant to this Section 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 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; 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 termination extent set forth in the last sentence of Section 9.04(e); and provided, further, that nothing in this Section 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 in or relieve the circumstances described in Section 7.3(a)(iii) hereof, (ii) not later than one (1) business day after the termination Company of any Liability with respect to its Intentional Breach 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) hereofAgreement.
(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 contemplated hereby shall be paid by the party incurring such expenses.
Appears in 1 contract
Samples: Merger Agreement (Daegis Inc.)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise provided in immediately available funds this Section, all costs and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated by wire transfer an amount equal to $1,000,000 (this Agreement shall be paid by the "TERMINATION FEE") if:
party incurring such cost or expense, whether or not the Merger is consummated; provided, however that, the costs and expenses incurred in connection with (i) this Agreement is terminated by Parent pursuant the printing, filing and mailing to Section 7.1(c) hereof;
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) this Agreement is terminated by Parent or the Companyfiling 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, as 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 be shared equally by the Company pursuant to Section 7.1(d) hereofand Parent.
(b) The Company shall pay Parent (by wire transfer of immediately available funds) the Termination Fee paid pursuant to this Section 7.3 amounts set forth below within four Business Days after any of the following events (if all conditions thereto have been satisfied) "Payment Events"):
(i) at or prior to the $6,000,000 upon termination of this Agreement for one or more of the following reasons: (x) by Parent pursuant to Section 10.01(c), (y) by either Parent or the Company in 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 circumstances described breach referred to in Section 7.3(a)(iii10.01(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) not later than one (1) business day after the $2,000,000 upon termination of this Agreement (x) by either Parent or the Company pursuant to Section 10.01(b)(iii) if there has been no Change of Recommendation, (y) by the Company pursuant to Section 10.01(f)(ii) or (z) by Parent in pursuant to Section 10.01(e)(i) with respect to a breach of the circumstances described covenant contained in Section 7.3(a)(i) hereof, or 6.01(c);
(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 any termination described in Section 5.4 hereof 11.01(b)(ii)(x) or (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 the Company's stockholders prior to the Company Stockholder Meeting (whether or not conditional and whether or not such Acquisition Proposal shall be modified have been rejected or shall have been withdrawn prior to replace "15%"the Company Stockholder Meeting), as it appears in such definition, with "30%"then the Company shall pay Parent an additional $4,000,000 for an aggregate payment under this Section 11.04(b) of $6,000,000.
(d) All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.
Appears in 1 contract
Samples: Merger Agreement (Netro Corp)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise provided herein, all costs and expenses incurred in immediately available funds connection with this Agreement shall be paid by wire transfer an amount equal to $1,000,000 (the "TERMINATION FEE") if:party incurring such cost or expense.
(ib) this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof;
(ii) this Agreement is terminated by Parent or the Company, as 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) If this Agreement is terminated by the Company pursuant to Section 7.1(d8.01(d)(i), the Company shall pay Parent a fee in immediately available funds in the amount of $10,392,000.00 (the “Termination Fee”) hereofconcurrently with such termination and as a condition to the effectiveness of such termination.
(bc) The 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) at any time on or after the date of this Agreement and prior to the Offer Expiration Time immediately preceding such termination an Acquisition Proposal shall have been 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 such consummation occurs before or after such twelve (12)-month period) or (B) within twelve (12) months after the date of such termination, any Acquisition Transaction is consummated, then the Company shall pay Parent the Termination Fee no later than the third (3rd) Business Day after such consummation; provided, however, that for purposes of this Section 9.04(d), the term “Acquisition Transaction” shall have the meaning assigned to such term in Article 1 except that the reference to “fifteen percent (15%)” therein shall be deemed to be a reference to “fifty (50%).”
(e) If this Agreement is terminated by Parent pursuant to Section 8.01(c)(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 three (3) Business Days after 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 and the Transactions. Any amount paid pursuant to this Section 7.3 9.04(e) may be deducted from any amount that is subsequently paid under Section 9.04(d).
(if all conditions thereto have been satisfiedf) (i) at or prior to For the termination avoidance of this Agreement doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in the circumstances described in Section 7.3(a)(iii) hereof, (ii) not later than duplication even though such payment may be payable under 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) more provisions hereof.
(cg) For purposes The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of Sections 7.3(a) the Transactions and 7.3(b) hereofthat without such provisions Parent and Merger Sub would not have entered into this Agreement. Parent shall promptly provide to the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04. If the Company fails to pay the Termination Fee or Parent Expenses or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or Parent Expenses or any portion thereof, the definition of "ACQUISITION PROPOSAL" set forth Company shall reimburse Parent and Merger Sub for their reasonable and documented, out-of-pocket costs and expenses (including reasonable attorney’s fees and disbursements) in Section 5.4 hereof shall be modified to replace "15%", as it appears in connection with such definition, with "30%"suit.
(dh) All costs Notwithstanding anything to the 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 and/or the 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 and/or the Parent Expenses pursuant to this Section 9.04 shall constitute the sole and expenses incurred 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 transactions contemplated hereby Company-Related Parties shall be paid 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; 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 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 party incurring such expensesCompany or relieve the Company of any Liability with respect to fraud or its Intentional and Material Breach of this Agreement.
Appears in 1 contract
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 contemplated hereby Transactions shall be paid by the party incurring such costs or expenses.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(d)(i), prior to or concurrently with such termination, the Company shall pay Parent a fee in the amount of $326,000,000 (the “Termination Fee”).
(c) If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i), then the Company shall promptly, but in no event later than two (2) 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) (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)) or by Parent pursuant to Section 8.01(c)(ii) and (i) at any time on or after the date of this Agreement and prior to such termination a bona fide Acquisition Proposal, or the intention of a Third Party to make a bona fide Acquisition Proposal, shall have been publicly made or otherwise become publicly known (unless publicly withdrawn prior to such termination), and (ii) within twelve (12) months after the date of such termination, (A) the Company enters into an Alternative Acquisition Agreement or (B) any Acquisition Transaction is consummated, then, the Company shall pay Parent the Termination Fee prior to the earliest to occur of entry into an Alternative Acquisition Agreement in respect of or consummation of an Acquisition Transaction; provided, however, that, for purposes of this Section 9.04(d), all references to “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “50%”.
(e) For the avoidance of doubt, any payment made by the Company under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(f) The Company acknowledges that the agreements contained in this Section 9.04 are an integral part of the Transactions and that without such provisions Parent and Merger Sub would not have entered into this Agreement.
(g) If the Company fails to pay the Termination Fee or any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay 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 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 pursuant to this Section 9.04 shall be paid to Parent by wire transfer of immediately available funds. Parent shall promptly provide the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
(h) Notwithstanding anything herein to the 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 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 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 Agreement or the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Bioverativ Inc.)
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 contemplated hereby Transactions shall be paid by the party incurring such costs or expenses.
(b) If this Agreement is terminated by the Company pursuant to Section 7.01(d)(i), prior to or concurrently with such termination the Company shall pay (or cause to be paid to) BRF a fee equal to the dollar value of 3.25% of the equity value of the Shares that are not BRF Shares based on the Per Share Amount (the “Termination Fee”).
(c) If this Agreement is terminated by BRF pursuant to Section 7.01(c)(i), then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement, pay (or 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 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) within twelve (12) months after the date of 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 consummation of any such Acquisition Transaction; provided, that, for purposes of this Section 8.03(d), all references to “twenty percent (20%)” in the definition of Acquisition Transaction shall be deemed to be references to “fifty percent (50%)”.
(e) For the avoidance of doubt, any payment made by the Company under this Section 8.03 shall be payable only once with respect to this Section 8.03 and not in duplication even though such payment may be payable under one or more provisions hereof.
(f) The Company acknowledges that the agreements contained in this Section 8.03 are an integral part of the Transactions and that without such provisions BRF and Merger Sub would not have entered into this Agreement.
(g) If the Company fails to pay the Termination Fee or any portion thereof and BRF or Merger Sub commences a suit which results in an Order against the Company for the Termination Fee or any portion thereof, the Company shall pay BRF and Merger Sub their costs and expenses (including reasonable attorneys’ fees and disbursements) in connection with such suit, together with interest on the 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 pursuant to this Section 8.03 shall be paid to BRF by wire transfer of immediately available funds. BRF shall promptly provide the Company upon request therefor the wire transfer information required to make any payments pursuant to this Section 8.03.
(h) Notwithstanding anything in this Agreement to the 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 of their respective Affiliates or representatives against the Company and 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 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 respect of any breach of this Agreement, and thereafter BRF (or its designee) is entitled to receive the Termination Fee under this Section 8.03, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to BRF (or its designee) in respect of any such breaches of this Agreement.
Appears in 1 contract
Fees; Expenses. (a) The Company agrees to pay Parent Except as otherwise expressly provided 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 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 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 have been publicly announced and shall not have been publicly and irrevocably withdrawn prior to be paid by the party incurring 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, costs or (2) the Company enters into a definitive agreement providing for a Company Acquisition and such Company Acquisition is later consummated; orexpenses.
(iiib) If this Agreement is terminated by the Company pursuant to Section 7.1(d8.01(d)(i), prior to or concurrently with such termination, the Company shall pay (or cause to be paid to) hereofParent a fee in the amount of $26,000,000 (the “Company Termination Fee”).
(bc) The If this Agreement is terminated by Parent pursuant to Section 8.01(c)(i) or Section 8.01(c)(ii), then the Company shall promptly, but in no event later than two (2) Business Days after termination of this Agreement, pay to (or cause to be paid to) Parent the Company Termination Fee paid pursuant to Fee.
(d) If this Section 7.3 (if all conditions thereto have been satisfied) Agreement is terminated (i) at by Parent or prior to the termination of this Agreement by the Company in the circumstances described in pursuant to Section 7.3(a)(iii8.01(b)(i) 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 but in the case of a Termination Fee payable 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)), or by Parent pursuant to Section 7.3(a)(ii8.01(c)(iii); (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) within twelve (12) months after the date of 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 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 least twenty five percent (25%)” in the definition of Acquisition Transaction shall be deemed to be references to “more than fifty percent (50%).”
(e) If this Agreement is terminated by (i) the Company pursuant to Section 8.01(d)(ii) or Section 8.01(d)(iii) or (ii) Parent pursuant to Section 8.01(b)(i) and at such time the Company had the right to terminate this Agreement pursuant to Section 8.01(d)(ii) or Section 8.01(d)(iii), then Parent shall promptly, but in no event later than two (2) Business Days after termination of this Agreement, pay to (or cause to be paid to) the Company $52,000,000 (the “Parent Termination Fee”).
(f) For the avoidance of doubt, any payment made by the Company or Parent under this Section 9.04 shall be payable only once with respect to this Section 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(cg) For purposes The parties hereto acknowledge that the agreements contained in this Section 9.04 are an integral part of Sections 7.3(athe Transactions and that without such provisions the parties hereto would not have entered into this Agreement.
(i) If the Company fails to pay the 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 7.3(b) hereofpayable pursuant to this Section 9.04 and Parent or Merger Sub, on the one hand, or the Company, on the other hand, commences a suit which results in an Order against the Company for the Company Termination Fee or any portion thereof or in an Order against Parent for the Parent Termination Fee or any portion thereof, the definition Company shall pay 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 Company Termination Fee or the Parent Termination Fee, as the case may be (or, in each case, any portion thereof that has not been paid timely in accordance with this Agreement), and on the amount of "ACQUISITION PROPOSAL" such costs and expenses, in each case, from and including the date payment of such amount was due 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 pursuant to this Section 5.4 hereof 9.04 shall be modified paid to replace "15%"Parent or the Company, as it appears the case may be, by wire transfer of immediately available funds. Parent shall promptly provide the Company and the Company shall provide Parent, in such definitioneach case, with "30%"upon request therefor the wire transfer information required to make any payments pursuant to this Section 9.04.
(di) All costs and expenses incurred Notwithstanding anything in connection with this Agreement to the contrary, (i) Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Sections 9.04(b)-(d) and the transactions contemplated hereby any payments pursuant to Section 9.04(h), shall be paid 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, 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 hereunder or otherwise (whether such breach was a Willful Breach or otherwise), and upon payment of the 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 payments from the Company in respect of any breach of this Agreement, and thereafter Parent (or its designee) is entitled to receive the Company Termination Fee under this Section 9.04, the amount of such Company Termination Fee shall be reduced by the party incurring aggregate amount of any payments made by the Company to Parent (or its designee) in respect of any such expensesbreaches of this Agreement.
(j) Notwithstanding anything in this Agreement to the contrary, (i) the Company’s right to receive payment from Parent of the Parent Termination Fee pursuant to Section 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 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) The Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or 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 pursuant to Section 8.01(d)(i), prior to and as a condition to the effectiveness of such termination, the Company agrees to shall pay Parent a fee in immediately available funds by wire transfer an in the amount equal to of $1,000,000 64,000,000 (the "TERMINATION FEE") if:“Termination Fee“).
(ic) If this Agreement is terminated by Parent pursuant to Section 7.1(c) hereof;
(ii) this Agreement is terminated by Parent or 8.01(c)(i), then the CompanyCompany shall promptly, as applicable, pursuant to Sections 7.1(b)(i) or (ii) hereof prior to which but in no Triggering Event has occurred, if (A) following the date hereof and prior to such event later than one Business Day after termination of this Agreement, pay Parent the Termination Fee.
(d) If this Agreement is terminated pursuant to Section 8.01(b)(i) or Section 8.01(c)(ii) and (i) prior to such termination an Acquisition Proposal shall have been publicly announced and shall not have been publicly and irrevocably withdrawn prior to such termination of this Agreementtermination, and (Bii) within nine (9) twelve months following the date of such termination of this Agreement, either (1) the transaction contemplated by an Acquisition Proposal (a "COMPANY ACQUISITION") is consummated, or (2) the Company enters shall have (A) entered into a letter of intent or a definitive agreement providing for 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 this Section 9.04(d) the references “twenty percent (20%)” in the definition of Acquisition and such Company Acquisition is later consummated; orProposal shall be deemed to be references to “fifty percent (50%).”
(iiie) this Agreement is terminated For the avoidance of doubt, any payment made by the Company pursuant under this Section 9.04 shall be payable only once with respect to this Section 7.1(d) 9.04 and not in duplication even though such payment may be payable under one or more provisions hereof.
(bf) The Company shall acknowledges that the agreements contained in this Section 9.04 are an integral part of the transactions contemplated by this Agreement and that without such provisions Parent and Merger Sub would not have entered into this Agreement. If the Company fails to 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 any portion thereof and Parent or Merger Sub commences a suit which results in an Order against the Company in for 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) hereofor any portion thereof, the definition of "ACQUISITION PROPOSAL" set forth in Section 5.4 hereof Company shall be modified to replace "15%", as it appears in such definition, with "30%".
(d) All pay Parent and Merger Sub their costs and expenses incurred (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement Agreement) and on the transactions contemplated hereby shall amount of such costs and expenses at the rate of interest per annum equal to the prime lending rate as published in the Wall Street Journal in effect on the date such payment was required to be paid by made through the party incurring such expensesdate of payment.
Appears in 1 contract
Samples: Merger Agreement (Zoll Medical Corp)