Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.5, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET or CIBER; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events. (b) If this Agreement is terminated (i) by CIBER pursuant to Section 7.1(f); (ii) by CIBER or ALPHANET pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder Approval; (iii) by CIBER or ALPHANET pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET (if such offer, proposal, announcement or agreement has not been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET pursuant to Section 7.1(g), then ALPHANET shall pay to CIBER, at or prior to the termination pursuant to Section 7.1(g) and not later than one Business Day after the receipt by ALPHANET of a notice of termination from CIBER in the case of Section 7.2(b)(i), (b)(ii) or (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iii), a termination fee of $900,000 (the "Termination Fee"). (c) For the purposes of this Section 7.2, "Business Combination" means with respect to ALPHANET, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANET's shareholders prior to such transaction (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's shareholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person). (d) All payments under this Section 7.2 shall be made by wire transfer of immediately available funds to an account designated by CIBER. (e) The parties agree that the agreements contained in Section 7.2(b) are an integral part of the transaction contemplated by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect payment. (f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 3 contracts
Samples: Merger Agreement (Ciber Inc), Agreement and Plan of Merger (Ciber Inc), Merger Agreement (Ciber Inc)
Obligations in Event of Termination. (a) In Except as set forth in Section 7.2(b), the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.5, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET SCB or CIBER; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(bi) If In the event that (x) any person shall have made an Acquisition Proposal for SCB and thereafter this Agreement is terminated (iby SCB pursuant to Section 7.1(g) or Section 7.1(i) or by CIBER pursuant to Section 7.1(f); (ii, Section 7.1(g) by CIBER or ALPHANET pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder Approval; (iii) by CIBER or ALPHANET pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET (if such offer, proposal, announcement or agreement has not been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be7.1(i); or (ivy) this Agreement is terminated by ALPHANET CIBER pursuant to Section 7.1(g7.1(d), excluding any termination based on an SCB Material Adverse Effect beyond the control of SCB and not caused in whole or in part by SCB's negligence, recklessness, or willful conduct, and within twelve months from the date of termination of this Agreement, SCB enters into an agreement for a transaction regarding an Acquisition Proposal with an entity with which it had discussions relating to any Acquisition Proposal at any time during the twelve month period immediately prior to the date of termination of this Agreement (any such termination and subsequent agreement by SCB, a "Triggering Event"), then ALPHANET SCB shall promptly, but in no event later than two days after signing such agreement, pay CIBER up to $500,000 for CIBER's expenses including, without limitation, legal, accounting and investment banking fees and expenses, relating to the negotiation and consummation of this Agreement and the transactions contemplated hereby, which amount shall be payable by wire transfer of same day funds.
(ii) In the event that a Triggering Event occurs, and within twelve months from the date of termination of this Agreement SCB consummates a transaction regarding an Acquisition Proposal with an entity with which it had discussions relating to any Acquisition Proposal at or any time during the twelve month period immediately prior to the date of termination of this Agreement, then SCB shall promptly, but in no event later than two days after such closing, pay CIBER a fee in an amount equal to $2,500,000 less any payment made to CIBER pursuant to Section 7.1(g) and not later than one Business Day after the receipt by ALPHANET of a notice of termination from CIBER in the case of Section 7.2(b)(i), (b)(ii) or (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iii), a termination fee of $900,000 (the "Termination Fee").
(c) For the purposes of this Section 7.2, "Business Combination" means with respect to ALPHANET, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANET's shareholders prior to such transaction (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's shareholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
(d) All payments under this Section 7.2 amount shall be made payable by wire transfer of immediately available funds to an account designated by CIBERsame day funds.
(eiii) The parties agree SCB acknowledges that the agreements contained in this Section 7.2(b) are an integral part of the transaction transactions contemplated by this Agreement. If ALPHANET fails to promptly pay , and that, without these agreements, CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect paymentwould not enter into this Agreement.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 2 contracts
Samples: Merger Agreement (SCB Computer Technology Inc), Merger Agreement (SCB Computer Technology Inc)
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.53.1(j), Section 3.2(l), Section 5.2, Section 5.6, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET the Company or CIBERParent; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising fromfrom a, a willful breach of this Agreement; and, except thatprovided, further, however, that if this Agreement is terminated for any reason, other than a termination (1) by Parent pursuant to Section 7.1(g) (but only if the reason for the termination was based on a Change in the event Company Recommendation pursuant to the terms of Section 5.4) or (2) by the Company pursuant to Section 7.1(h), then the provisions of the sixth paragraph of the Confidentiality Agreement shall continue to apply following the termination of the Merger Agreement and the date set forth in the definition of "Standstill Period" set forth in the last sentence of the sixth paragraph of the Confidentiality Agreement shall be modified to be the date that is two (2) years from the date of the termination of this the Merger Agreement; provided, however, that the provisions of the sixth paragraph of the Confidentiality Agreement by reason shall terminate on the date that an event described in clause (y) of facts or events such paragraph shall occur and provided further that entitle CIBER the Company agrees to notify Parent not later than 48 hours prior to entering into any agreement with respect to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or eventsBusiness Combination.
(b) If this Agreement is terminated (i) by CIBER Parent pursuant to Section 7.1(f7.1(g) (but only if, on or before the date this Agreement is terminated, there shall have been made an offer or proposal for, or any announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving the Company (whether or not such offer, proposal, announcement or agreement will have been rejected or withdrawn prior to the date this Agreement is terminated)); (ii) by CIBER Parent or ALPHANET the Company pursuant to Section 7.1(h7.1(j) because of the failure to obtain the required ALPHANET Shareholder ApprovalCompany Stockholder Approval (but only if, after the date hereof and prior to the Company Stockholder Meeting, there shall have been made public to a significant number of the Company's stockholders an offer or proposal for, or any public announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving the Company (whether or not such offer, proposal, announcement or agreement will have been rejected or withdrawn prior to the date of the Company Stockholder Meeting)); (iii) by CIBER Parent or ALPHANET the Company pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Company Stockholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET the Company (if whether or not such offer, proposal, announcement or agreement has not will have been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET the Company pursuant to Section 7.1(g7.1(h), then ALPHANET (A) in the case of clauses (b)(i), (b)(ii), and (b)(iii) if within twelve months of termination of this Agreement, the Company enters into a definitive agreement with any Person (other than Parent or any of Parent's affiliates) with respect to a Business Combination or any Business Combination with respect to the Company is consummated, then the Company shall pay to CIBERParent, at or prior to the termination pursuant to Section 7.1(g) and not later than one Business Day business day after the receipt by ALPHANET earlier of a notice of termination from CIBER in the case of Section 7.2(b)(i), (b)(ii) date such agreement is entered into or (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iii)such Business Combination is consummated, a termination fee of $900,000 1,600,000,000 (the "Termination Fee") and (B) in the case of clauses (b)(iv), the Company shall pay to Parent, at or prior to such termination pursuant to Section 7.1(h), the Termination Fee. Notwithstanding the foregoing, no Termination Fee shall be payable by the Company to Parent if the Parent stockholders do not approve the Share Issuance or Certificate Amendment.
(c) For the purposes of this Section 7.2, "Business Combination" means with respect to ALPHANETthe Company, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANETthe Company's shareholders stockholders prior to such transaction (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholdersstockholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET the Company prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET the Company and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock the common stock of the Company whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANETthe Company's shareholders stockholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
(d) All payments under this Section 7.2 shall be made by wire transfer of immediately available funds to an account designated by CIBER.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part of the transaction contemplated by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect payment.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 2 contracts
Samples: Merger Agreement (Pfizer Inc), Merger Agreement (Pharmacia Corp /De/)
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.18.1, this Agreement shall forthwith become wholly void and of no further force and effect and there shall be no liability or obligation on the part of Parent, Merger Sub or the Company or their respective Subsidiaries, officers or directors, except (except i) with respect to Section 5.56.2(b), Section 6.5, this Section 7.2 8.2 and Article VIIIIX, which shall remain in full force and effecteffect and (ii) with respect to any liabilities or damages incurred or suffered by a party, to the extent such liabilities or damages were the result of fraud or the willful and there material breach by another party of any of its representations, warranties, covenants or other agreements set forth in this Agreement. Notwithstanding the foregoing, to the extent Parent is entitled to receive a Termination Fee and reimbursement of its Expenses in connection with a termination of this Agreement pursuant to the provisions of this Section 8.2, Parent’s receipt thereof shall be no liability on the part sole and exclusive remedy of ALPHANET Parent, Merger Subs and their Affiliates against the Company and any of its directors, officers, employees, agents, shareholders, assignees, representatives or CIBER; providedAffiliates for any loss or damage suffered in connection with this Agreement or the transactions contemplated hereby. For purposes of this Agreement, however, “willful and material breach” shall mean a material breach that termination shall not preclude any is a consequence of an act undertaken by the breaching party from suing with the other party forknowledge (actual or constructive) that the taking of such act would, or relieve any party hereto from any liability arising fromwould be reasonably expected to, cause a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(b) If In the event that this Agreement is terminated (i) by CIBER Parent pursuant to Section 7.1(f); 8.1(d)(ii) and the basis for such termination is a willful and material breach in existence on the date hereof of any representation or warranty of the Company contained in this Agreement, (ii) by CIBER or ALPHANET Parent pursuant to Section 7.1(h8.1(d)(i) because and the basis for such termination is a willful and material breach of covenants or agreements contained in this Agreement to be complied with by the failure to obtain the required ALPHANET Shareholder Approval; Company, (iii) by CIBER or ALPHANET Parent pursuant to Section 7.1(b8.1(f) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET (if such offer, proposal, announcement or agreement has not been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET the Company pursuant to Section 7.1(g8.1(h), then ALPHANET the Company shall pay to CIBERParent a termination fee of $7,500,000.00 (the “Termination Fee”) (x) in the case of a termination pursuant to Section 8.1(d)(ii) or Section 8.1(d)(i) under the circumstances contemplated by clauses (i) or (ii) above, at respectively, promptly following a final determination that the Company’s willful and material breach contemplated by such clauses (i) or (ii) above caused the closing condition set forth in Section 7.2(a) or Section 7.2(b), respectively, not to be satisfied, (y) promptly (and in any event within two (2) Business Days) following such termination, in the case of termination pursuant to Section 8.1(f), and (z) prior to or concurrently with such termination, in the case of termination pursuant to Section 8.1(h). In addition, the Company shall reimburse Parent’s Expenses actually incurred by Parent on or prior to the termination pursuant to Section 7.1(g) and not later than one Business Day after of this Agreement under the receipt by ALPHANET of a notice of termination from CIBER circumstances described in the case of Section 7.2(b)(iclauses (i), (b)(iiii), (iii) or (b)(iiiiv) or above, provided however, that in no event shall the sending by ALPHANET of a notice of termination Company be required to reimburse Parent’s Expenses in the case of Sections 7.2(b)(ii) or (b)(iii), a termination fee excess of $900,000 4,500,000.00. Such reimbursement shall be paid promptly (and in any event within two (2) Business Days) following the "Company’s receipt of an invoice therefor, provided that such invoice may not be rendered prior to the date that the applicable Termination Fee")Fee would be payable.
(c) For In the purposes event that this Agreement is terminated by Parent or the Company pursuant to Section 8.1(g), then the Company shall reimburse Parent’s Expenses actually incurred by Parent on or prior to the termination of this Section 7.2Agreement; provided however, "that in no event shall the Company be required to reimburse Parent’s Expenses in excess of $4,500,000.00. Such reimbursement shall be paid promptly (and in any event within two (2) Business Combination" means with respect to ALPHANET, (iDays) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result following the Company’s receipt of which either (A) ALPHANET's shareholders prior to such transaction (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's shareholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person)an invoice therefor.
(d) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 8.1(g) and (i) at any time after the date of this Agreement and prior to the taking of the vote to adopt this Agreement at the Company Shareholder Meeting an Acquisition Proposal shall have been publicly announced or publicly made known to the shareholders of the Company and shall not have been withdrawn prior to the taking of the vote to adopt this Agreement at the Company Shareholder Meeting and (ii) within twelve (12) months of such termination, the Company enters into a definitive agreement with any Third Party with respect to any Acquisition Proposal or any Acquisition Proposal with respect to the Company is consummated, then the Company shall pay to Parent, not later than two (2) Business Days after the earlier of the date any such agreement is entered into or any such Acquisition Proposal is consummated, an amount equal to the Termination Fee; provided, however, that for purposes of the definition of Acquisition Proposal in this Section 8.2(d), references to “15%” shall be replaced by “50%.”
(e) All payments under this Section 7.2 8.2 shall be made by wire transfer of immediately available funds to an account designated in writing by CIBER.
(e) The parties agree that Parent. In no event shall the agreements contained in Section 7.2(b) are an integral part of the transaction contemplated by this Agreement. If ALPHANET fails Company be required to promptly pay CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit Termination Fee or legal action, taken to collect paymentreimburse Parent’s Expenses on more than one occasion.
(f) In If the event that ALPHANET is Company shall fail to pay the Termination Fee or reimburse Parent’s Expenses, the Company shall reimburse Parent for all reasonable costs and expenses actually incurred or accrued by Parent (including reasonable Expenses of counsel) in connection with the collection under and enforcement of this Section 8.2 from the date such payment was required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not be made until the date of payment at the prime lending rate prevailing during such period as published in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting paymentThe Wall Street Journal.
Appears in 2 contracts
Samples: Merger Agreement (Ict Group Inc), Merger Agreement (Sykes Enterprises Inc)
Obligations in Event of Termination. (a) In Except as set forth in Section 7.2(b), the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.5, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET SCB or CIBER; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(b) If (i) In the event that (x) any person shall have made an Acquisition Proposal for SCB and thereafter this Agreement is terminated (iby SCB pursuant to Section 7.1(g) or Section 7.1(i) or by CIBER pursuant to Section 7.1(f); (ii, Section 7.1(g) by CIBER or ALPHANET pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder Approval; (iii) by CIBER or ALPHANET pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET (if such offer, proposal, announcement or agreement has not been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be7.1(i); or (ivy) this Agreement is terminated by ALPHANET CIBER pursuant to Section 7.1(g7.1(d), excluding any termination based on an SCB Material Adverse Effect beyond the control of SCB and not caused in whole or in part by SCB's negligence, recklessness, or willful conduct, and within twelve months from the date of termination of this Agreement, SCB enters into an agreement for a transaction regarding an Acquisition Proposal with an entity with which it had discussions relating to any Acquisition Proposal at any time during the twelve month period immediately prior to the date of termination of this Agreement (any such termination and subsequent agreement by SCB, a "Triggering Event"), then ALPHANET SCB shall promptly, but in no event later than two days after signing such agreement, pay CIBER up to $500,000 for CIBER's expenses including, at or prior without limitation, legal, accounting and investment banking fees and expenses, relating to the termination pursuant to Section 7.1(g) negotiation and not later than one Business Day after the receipt by ALPHANET of a notice of termination from CIBER in the case of Section 7.2(b)(i), (b)(ii) or (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iii), a termination fee of $900,000 (the "Termination Fee").
(c) For the purposes consummation of this Section 7.2Agreement and the transactions contemplated hereby, "Business Combination" means with respect to ALPHANET, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANET's shareholders prior to such transaction (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's shareholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
(d) All payments under this Section 7.2 amount shall be made payable by wire transfer of immediately available funds to an account designated by CIBERsame day funds.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part of the transaction contemplated by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect payment.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 2 contracts
Samples: Merger Agreement (Ciber Inc), Merger Agreement (Ciber Inc)
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.55.6, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET the Company, GPAA or CIBERParent; providedPROVIDED, howeverHOWEVER, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(b) If this Agreement is terminated terminated: (i) by CIBER Parent pursuant to Section 7.1(f); (ii) by CIBER or ALPHANET Parent pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder ApprovalCompany Stockholder Approval by such date or within the allotted time; (iii) by CIBER Parent or ALPHANET the Company pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Company Stockholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in)to, a transaction that would constitute a Business Combination involving ALPHANET the Company (if whether or not such offer, proposal, announcement or agreement has not will have been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET the Company pursuant to Section 7.1(g); or (v) by Parent pursuant to Section 7.1(i), then ALPHANET (A) in the case of clauses (b)(i), (b)(ii), and (b)(iii) if within twelve months of termination of this Agreement, the Company enters into a definitive agreement with any Person (other than Parent or any of Parent's affiliates) with respect to a Business Combination or any Business Combination with respect to the Company is consummated, then the Company shall pay to CIBERParent, not later than one business day after the earlier of the date such agreement is entered into or such Business Combination is consummated, a termination fee of Five Million Dollars ($5,000,000) (the "Termination Fee") and (B) in the case of clauses (b)(iv) and (b)(v), the Company shall pay to Parent, at or prior to the such termination pursuant to Section 7.1(g) and not later than one Business Day after or 7.1(i), the receipt by ALPHANET of a notice of termination from CIBER Termination Fee. Notwithstanding the foregoing, the Company shall have no obligation to pay to Parent the Termination Fee if: in the case of Section 7.2(b)(iclause (b)(i), (b)(ii) the Board of Directors of the Company shall have withdrawn or (b)(iii) changed or modified the sending by ALPHANET Company Recommendation in a manner adverse to Parent because of a notice Superior Proposal to which Parent or GPAA consents or is a party at the time such Company Recommendation is withdrawn, changed or modified, and the Business Combination occurring within twelve months of termination is one to which Parent or GPAA consents or is a party; in the case of Sections 7.2(b)(ii) clause (b)(ii), provided that the Company submits this Agreement and the transactions contemplated hereby to the vote of the outstanding shares of the Company and the Board of Directors of the Company shall not have withdrawn or changed or modified the Company Recommendation in a manner adverse to Parent, if GPAA withholds its vote or consent for adopting this Agreement and approving the transactions contemplated hereby, or votes against such adoption and approval and at the time of such termination Parent or GPAA consents or is a party to a Business Combination, and the Business Combination occurring within twelve months of termination is one to which Parent or GPAA consents or is a party; in the case of clause (b)(iii) the Business Combination occurring within twelve months of termination is one to which Parent or GPAA consents or is a party; in the case of clause (b)(iv), the Superior Proposal referred to therein is one to which Parent or GPAA consents or is a termination fee party at the time of $900,000 such termination, and in the case of clause (b)(v), the "Termination Fee")Business Combination is one to which Parent or GPAA consents or is a party at the time of such termination.
(c) For the purposes of this Section 7.2, "Business Combination" means with respect to ALPHANETthe Company, (i) a merger, reorganization, consolidation, share exchangeexchange or purchase, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANETthe Company's shareholders stockholders prior to such transaction or series of related transactions in the aggregate cease to own (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholdersstockholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such surviving entity or ultimate parent entity or (B) the individuals comprising the board Board of directors Directors of ALPHANET the Company prior to such transaction or series of related transactions do not constitute a majority of the board Board of directors Directors of such surviving entity or ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiariesthe Company, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock the common stock of the Company whether by merger, reorganization, consolidation, share exchangeexchange or purchase, business combination, tender or exchange offer recapitalization, liquidation, dissolution or otherwise (other than a merger, reorganization, consolidation, share exchangeexchange or purchase, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANETthe Company's shareholders stockholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
, or (div) All payments under this Section 7.2 shall be made the acquisition, directly or indirectly, by wire transfer a Person of immediately available funds to an account designated by CIBER.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part beneficial ownership of 50% or more of the transaction contemplated common stock of the Company then outstanding and not held by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b)GPAA whether by merger, ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any actionreorganization, including the filing of any lawsuit consolidation, share exchange or legal actionpurchase, taken to collect paymentbusiness combination, recapitalization, liquidation, dissolution or otherwise.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 1 contract
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.5, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET or CIBER; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(b) If this Agreement is terminated (i) by CIBER pursuant to Section 7.1(f); (ii) by CIBER or ALPHANET pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder Approval; (iii) by CIBER or ALPHANET pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET (if such offer, proposal, announcement or agreement has not been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET pursuant to Section 7.1(g), then ALPHANET shall pay to CIBER, at or prior to the termination pursuant to Section 7.1(g) and not later than one Business Day after the receipt by ALPHANET of a notice of termination from CIBER in the case of Section 7.2(b)(i), (b)(ii) or (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iii), a termination fee of $900,000 (the "“Termination Fee"”).
(c) For the purposes of this Section 7.2, "“Business Combination" ” means with respect to ALPHANET, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANET's ’s shareholders prior to such transaction (by virtue of their ownership of such party's ’s shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock whether by merger, consolidation, share Table of Contents exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's ’s shareholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
(d) All payments under this Section 7.2 shall be made by wire transfer of immediately available funds to an account designated by CIBER.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part of the transaction contemplated by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect payment.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Alphanet Solutions Inc)
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.53.1(j), Section 3.2(j), Section 5.2 (as it relates to Confidential Information only), Section 5.6, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET the Company or CIBERRiverwood; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising fromfrom a, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(b) If this Agreement is terminated (i) by CIBER Riverwood pursuant to Section 7.1(f7.1(f)(i); (ii) by CIBER Riverwood pursuant to Section 7.1(f)(ii), unless there is a Permitted Reason for the failure to hold the Company Stockholders Meeting; (iii) by Riverwood or ALPHANET the Company pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder Company Stockholder Approval unless there is a Permitted Reason for the failure to obtain the Company Stockholder Approval; (iiiiv) by CIBER Riverwood or ALPHANET the Company pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Company Stockholder Approval shall not have been obtained obtained, unless there is a Permitted Reason for the failure to obtain the Company Stockholder Approval and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made in good faith by a third party (other than Riverwood or any of its affiliates) an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET the Company (if whether or not such offer, proposal, announcement or agreement has not will have been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (ivv) by ALPHANET the Company pursuant to Section 7.1(g), then ALPHANET the Company shall pay to CIBERRiverwood, at or prior to the a termination pursuant to Section clause 7.1(g) or the sending by the Company of a notice of termination in the case of clauses (b)(iii) or (b)(iv) and not later than one Business Day after the receipt by ALPHANET the Company of a notice of termination from CIBER Riverwood in the case of Section 7.2(b)(iclauses (b)(i), (b)(ii) or ), (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iiib)(iv), a termination fee of $900,000 30 million (the "“Termination Fee"”).
(c) For the purposes of this Section 7.2, "“Business Combination" ” means with respect to ALPHANETthe Company, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANET's shareholders the Company’s stockholders prior to such transaction (by virtue of their ownership of such party's ’s shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholdersstockholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET the Company prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET the Company and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock the common stock of the Company whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's shareholders the Company’s stockholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
(d) All payments under this Section 7.2 shall be made by wire ; provided, however, that any purchase, sale or other transfer of immediately available funds to an account designated by CIBER.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part voting securities of the transaction contemplated Company held by this Agreement. If ALPHANET fails any Family Stockholder as of the date hereof to promptly pay CIBER or from any fee due under such Section 7.2(b), ALPHANET of the other Family Stockholders shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect paymentnot be considered a Business Combination.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 1 contract
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.5, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET or CIBER; provided, however, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events...
(b) If this Agreement is terminated (i) by CIBER pursuant to Section 7.1(f); (ii) by CIBER or ALPHANET pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder Approval; (iii) by CIBER or ALPHANET pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in), a transaction that would constitute a Business Combination involving ALPHANET (if such offer, proposal, announcement or agreement has not been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET pursuant to Section 7.1(g), then ALPHANET shall pay to CIBER, at or prior to the termination pursuant to Section 7.1(g) and not later than one Business Day after the receipt by ALPHANET of a notice of termination from CIBER in the case of Section 7.2(b)(i), (b)(ii) or (b)(iii) or the sending by ALPHANET of a notice of termination in the case of Sections 7.2(b)(ii) or (b)(iii), a termination fee of $900,000 (the "“Termination Fee"”).
(c) For the purposes of this Section 7.2, "“Business Combination" ” means with respect to ALPHANET, (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANET's ’s shareholders prior to such transaction (by virtue of their ownership of such party's ’s shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such ultimate parent entity or (B) the individuals comprising the board of directors of ALPHANET prior to such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANET's ’s shareholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
(d) All payments under this Section 7.2 shall be made by wire transfer of immediately available funds to an account designated by CIBER.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part of the transaction contemplated by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b), ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or legal action, taken to collect payment.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 1 contract
Obligations in Event of Termination. (a) In the event of any termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become wholly void and of no further force and effect (except with respect to Section 5.55.6, this Section 7.2 and Article VIII, which shall remain in full force and effect) and there shall be no liability on the part of ALPHANET the Company, GPAA or CIBERParent; providedPROVIDED, howeverHOWEVER, that termination shall not preclude any party from suing the other party for, or relieve any party hereto from any liability arising from, a willful breach of this Agreement, except that, in the event of the termination of this Agreement by reason of facts or events that entitle CIBER to a Termination Fee, and such Termination Fee is timely paid, CIBER shall not be entitled to recover any additional amounts from ALPHANET solely by reason of such facts or events.
(b) If this Agreement is terminated terminated: (i) by CIBER Parent pursuant to Section 7.1(f); (ii) by CIBER or ALPHANET Parent pursuant to Section 7.1(h) because of the failure to obtain the required ALPHANET Shareholder ApprovalCompany Stockholder Approval by such date or within the allotted time; (iii) by CIBER Parent or ALPHANET the Company pursuant to Section 7.1(b) because the Merger shall not have been consummated at or prior to the Termination Date or the Extended Termination Date, as the case may be, and, at the time of the termination, (x) the ALPHANET Shareholder Company Stockholder Approval shall not have been obtained and (y) after the date hereof and prior to the Termination Date or the Extended Termination Date, as the case may be, there shall have been made an offer or proposal for, or an announcement of any intention with respect to (including the filing of a statement of beneficial ownership on Schedule 13D discussing the possibility of or reserving the right to engage in)to, a transaction that would constitute a Business Combination involving ALPHANET the Company (if whether or not such offer, proposal, announcement or agreement has not will have been rejected or withdrawn prior to the Termination Date or the Extended Termination Date, as the case may be); or (iv) by ALPHANET the Company pursuant to Section 7.1(g); or (v) by the Parent pursuant to Section 7.1(i), then ALPHANET (A) in the case of clauses (b)(i), (b)(ii), and (b)(iii) if within twelve months of termination of this Agreement, the Company enters into a definitive agreement with any Person (other than Parent or any of Parent's affiliates) with respect to a Business Combination or any Business Combination with respect to the Company is consummated, then the Company shall pay to CIBERParent, not later than one business day after the earlier of the date such agreement is entered into or such Business Combination is consummated, a termination fee of Five Million Dollars ($5,000,000) (the "Termination Fee") and (B) in the case of clauses (b)(iv) and (b)(v), the Company shall pay to Parent, at or prior to the such termination pursuant to Section 7.1(g) and not later than one Business Day after or 7.1(i), the receipt by ALPHANET of a notice of termination from CIBER Termination Fee. Notwithstanding the foregoing, the Company shall have no obligation to pay to Parent the Termination Fee if: in the case of Section 7.2(b)(iclause (b)(i), (b)(ii) the Board of Directors of the Company shall have withdrawn or (b)(iii) changed or modified the sending by ALPHANET Company Recommendation in a manner adverse to Parent because of a notice Superior Proposal to which Parent or GPAA consents or is a party at the time such Company Recommendation is withdrawn, changed or modified, and the Business Combination occurring within twelve months of termination is one to which Parent or GPAA consents or is a party; in the case of Sections 7.2(b)(ii) clause (b)(ii), provided that the Company submits this Agreement and the transactions contemplated hereby to the vote of the outstanding shares of the Company and the Board of Directors of the Company shall not have withdrawn or changed or modified the Company Recommendation in a manner adverse to Parent, if GPAA withholds its vote or consent for adopting this Agreement and approving the transactions contemplated hereby, or votes against such adoption and approval and at the time of such termination Parent or GPAA consents or is a party to a Business Combination, and the Business Combination occurring within twelve months of termination is one to which Parent or GPAA consents or is a party; in the case of clause (b)(iii) the Business Combination occurring within twelve months of termination is one to which Parent or GPAA consents or is a party; in the case of clause (b)(iv), the Superior Proposal referred to therein is one to which Parent or GPAA consents or is a termination fee party at the time of $900,000 such termination, and in the case of clause (b)(v), the "Termination Fee")Business Combination is one to which Parent or GPAA consents or is a party at the time of such termination.
(c) For the purposes of this Section 7.2, "Business Combination" means with respect to ALPHANETthe Company, (i) a merger, reorganization, consolidation, share exchangeexchange or purchase, business combination, recapitalization, liquidation, dissolution or similar transaction involving such party as a result of which either (A) ALPHANETthe Company's shareholders stockholders prior to such transaction or series of related transactions in the aggregate cease to own (by virtue of their ownership of such party's shares) in the aggregate cease to own at least 50% of the voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such shareholdersstockholders, if any Person shall beneficially own, directly or indirectly, at least 40% of the voting securities of such surviving entity or ultimate parent entity or (B) the individuals comprising the board Board of directors Directors of ALPHANET the Company prior to such transaction or series of related transactions do not constitute a majority of the board Board of directors Directors of such surviving entity or ultimate parent entity, (ii) a sale, lease, exchange, transfer or other disposition of at least 40% of the assets of ALPHANET and its Subsidiariesthe Company, taken as a whole, in a single transaction or a series of related transactions, or (iii) the acquisition, directly or indirectly, by a Person of beneficial ownership of 40% or more of ALPHANET Common Stock the common stock of the Company whether by merger, reorganization, consolidation, share exchangeexchange or purchase, business combination, tender or exchange offer recapitalization, liquidation, dissolution or otherwise (other than a merger, reorganization, consolidation, share exchangeexchange or purchase, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which ALPHANETthe Company's shareholders stockholders would in the aggregate beneficially own greater than 50% of the voting securities of such Person).
, or (div) All payments under this Section 7.2 shall be made the acquisition, directly or indirectly, by wire transfer a Person of immediately available funds to an account designated by CIBER.
(e) The parties agree that the agreements contained in Section 7.2(b) are an integral part beneficial ownership of 50% or more of the transaction contemplated common stock of the Company then outstanding and not held by this Agreement. If ALPHANET fails to promptly pay CIBER any fee due under such Section 7.2(b)GPAA whether by merger, ALPHANET shall pay the costs and expenses of CIBER (including legal fees and expenses) in connection with any actionreorganization, including the filing of any lawsuit consolidation, share exchange or legal actionpurchase, taken to collect paymentbusiness combination, recapitalization, liquidation, dissolution or otherwise.
(f) In the event that ALPHANET is required to pay CIBER a Termination Fee under Section 7.2(b), ALPHANET shall also pay and reimburse CIBER for all Expenses (not in excess of $100,000) of CIBER within one Business Day of receipt of a notice from CIBER providing reasonable information regarding such Expenses and requesting payment.
Appears in 1 contract
