Parent Termination Fee. In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii)(A) and, in each case, at the time of such termination, (i) the conditions set forth in Sections 6.1 and 6.3 (other than (A) the Antitrust Conditions, (B) the delivery of certificates and opinions which (in light of the underlying facts as of the time of such termination and any waiver of the condition set forth in Section 6.3(a) deemed made pursuant to Section 7.1(b)(i)) would be capable of being delivered but are to be delivered on the date of the Closing and (C) other such conditions the failure of which to be satisfied by such date has been principally caused by a material breach by Parent of any representation, warranty or covenant hereunder or the facts or circumstances underlying such breach) have been satisfied or (to the extent permitted by Law) waived (or in the case of termination pursuant to Section 7.1(b)(ii)(A), are reasonably likely to have been satisfied by the Outside Date), and (ii) neither Parent nor the Company has the right to terminate this Agreement pursuant to Section 7.1(b)(ii)(B) (or would have the right to so terminate assuming that the relevant order, decree, ruling or action referenced in Section 7.1(b)(ii)(B) has become final and non-appealable at the time of such termination), then Parent shall (x) pay the Company a fee equal to $5,000,000 (the “Non-Clearance Termination Fee”) by wire transfer of same-day funds on the first Business Day following the date of such termination of this Agreement and (y) use commercially reasonable efforts to cause certain matters to occur on the terms set forth on Section 7.3(b) of the Parent Letter.
Appears in 2 contracts
Samples: Merger Agreement (Churchill Downs Inc), Merger Agreement (Youbet Com Inc)
Parent Termination Fee. (i) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii)(A) and, in each case, at the time of such termination, (i) the conditions set forth in Sections 6.1 and 6.3 (other than (A) the Antitrust Conditions, (B) the delivery of certificates and opinions which (in light of the underlying facts as of the time of such termination and any waiver of the condition set forth in Section 6.3(a) deemed made pursuant to Section 7.1(b)(i)) would be capable of being delivered but are to be delivered on the date of the Closing and (C) other such conditions the failure of which to be satisfied by such date has been principally caused by a material breach by Parent of any representation, warranty or covenant hereunder or the facts or circumstances underlying such breach) have been satisfied or (to the extent permitted by Law) waived (or in the case of termination pursuant to Section 7.1(b)(ii)(A), are reasonably likely to have been satisfied by the Outside Date), and (ii) neither Parent nor the Company has the right to terminate this Agreement pursuant to Section 7.1(b)(ii)(B) (or would have the right to so terminate assuming that the relevant order, decree, ruling or action referenced in Section 7.1(b)(ii)(B) has become final and non-appealable at the time of such termination8.1(f), then within one (1) Business Day after such termination by the Company, Parent shall (x) pay to the Company a fee equal to $5,000,000 65,000,000 (the “Non-Clearance Parent Termination Fee”) by wire transfer of same-day immediately available funds on to an account or accounts designated in writing by the first Business Day following Company.
(ii) In the event that this Agreement is validly terminated by the Company or Parent pursuant to Section 8.1(b) or Section 8.1(d), and in each case upon the date of such termination pursuant to Section 8.1(b) or Section 8.1(d) (A) all conditions set forth in Section 2.2(a) and Section 2.2(b) (other than (i) those conditions that by their terms or nature are to be satisfied at the Closing and (ii) the conditions set forth in Sections 2.2(a)(ii), 2.2(a)(iii) or 2.2(b)(iv) (but solely, in the case of Sections 2.2(a)(iii) and 2.2(b)(iv), to the extent the matter giving rise to the failure of such condition to be satisfied is related to Antitrust Laws)) have been satisfied or waived and (B) Parent is not entitled to terminate this Agreement pursuant to Section 8.1(h) or Section 8.1(i), then within one (1) Business Day after such termination by the Company or Parent, Parent shall pay to the Company the Parent Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the Company.
(iii) The parties hereto acknowledge and hereby agree that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion, whether or not the Parent Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and (y) use commercially reasonable efforts to cause certain matters to occur on the terms set forth on Section 7.3(b) occurrence of the Parent Letterdifferent events.
Appears in 2 contracts
Samples: Merger Agreement (Rofin Sinar Technologies Inc), Merger Agreement (Coherent Inc)
Parent Termination Fee. In If (i) the event that Company terminates this Agreement is terminated by pursuant to Section 7.1(d)(ii) or Section 7.1(d)(iii), (ii) Parent or the Company terminates this Agreement pursuant to Section 7.1(b)(i) and, at the time of such termination, the Company would have been entitled to terminate this Agreement under Section 7.1(d)(ii) or Section 7.1(d)(iii), or (iii) (A) the Company terminates this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) or Parent terminates this Agreement pursuant to Section 7.1(b)(i) or
Section 7.1 (b)(ii) at a time when the Agreement is terminable by the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii)(A7.1(b)(ii), respectively, (B) andall of the conditions to the Closing set forth in Article VI have been satisfied (or, in each case, if any such conditions are by their nature to be satisfied at the time Closing, satisfied as if the Closing had occurred on such date of such termination, (i) or waived other than the conditions set forth in Sections 6.1 Section 6.1(b) (solely to the extent that such Legal Restraint arises under the HSR Act or any other Antitrust Law) or Section 6.1(c) and 6.3 (other than (AC) the Antitrust Conditions, (B) the delivery of certificates and opinions which (in light any of the underlying facts as of the time of such termination and any waiver of the condition conditions set forth in Section 6.3(a6.1(b) deemed made pursuant (solely to the extent that such Legal Restraint arises under the HSR Act or any Antitrust Law) or Section 7.1(b)(i)) would be capable of being delivered but are to be delivered on the date of the Closing and (C) other such conditions the failure of which to be satisfied by such date has been principally caused by a material breach by Parent of any representation, warranty or covenant hereunder or the facts or circumstances underlying such breach6.1(c) have not been satisfied or (to the extent permitted by Law) waived (or in the case of termination pursuant to Section 7.1(b)(ii)(A), are reasonably likely to have been satisfied by the Outside Date), and (ii) neither Parent nor the Company has the right to terminate this Agreement pursuant to Section 7.1(b)(ii)(B) (or would have the right to so terminate assuming that the relevant order, decree, ruling or action referenced in Section 7.1(b)(ii)(B) has become final and non-appealable at the time of such termination)waived, then in each case, Parent shall (x) pay or cause to be paid to the Company a fee equal to of $5,000,000 239,745,343.00 in cash (the “Non-Clearance Parent Termination Fee”) ), by wire transfer of same-day immediately available funds on to an account designated by the first Company, no later than two (2) Business Day following Days after the date of such termination of this Agreement and (y) use commercially reasonable efforts to cause certain matters to occur on the terms set forth on Section 7.3(b) of the Parent Lettertermination.
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Parent Termination Fee. In the event that this that:
(i) This Agreement is terminated by Parent or the Company or Ultimate Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii)(A) and, in each case, at the time of such termination, (i) the conditions set forth in Sections 6.1 and 6.3 (other than (A) the Antitrust Conditions, (B) the delivery of certificates and opinions which (in light of the underlying facts as of the time date of such termination and any waiver of the condition set forth in Section 6.3(a6.1(c) deemed made pursuant to Section 7.1(b)(i)) would be capable of being delivered but are to be delivered on the date of the Closing and (C) other such conditions the failure of which to be satisfied by such date has been principally caused by a material breach by Parent of any representation, warranty or covenant hereunder or the facts or circumstances underlying such breach) shall not have been satisfied or satisfied, (to the extent permitted by LawB) waived (or in the case of termination pursuant to Section 7.1(b)(ii)(A), are reasonably likely to have been satisfied by the Outside Date), and (ii) neither Parent nor the Company has had the right to terminate this Agreement pursuant to Section 7.1(b)(ii)(B7.1(b)(i), and (C) immediately before such termination, the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(d) would have been satisfied had the Closing taken place as of the date of termination;
(ii) this Agreement is terminated by the Company or Ultimate Parent pursuant to Section 7.1(b)(ii) (or would have the right to so terminate assuming provided that the relevant order, decree, ruling or action referenced in Section 7.1(b)(ii)(B) has become such final and non-appealable injunction or similar order permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger shall have been issued or entered pursuant to applicable Antitrust Laws) and (A) the Company had the right to terminate this Agreement pursuant to Section 7.1(b)(ii), and (B) immediately before such termination, the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(d) would have been satisfied had the Closing taken place as of the date of termination;
(iii) this Agreement is terminated by the Company pursuant to Section 7.1(d)(iii);
(iv) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); or
(v) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(iii) and at the time of such terminationtermination the Company would have been entitled to terminate this Agreement pursuant to Section 7.1(d)(ii); then the Parent Entities shall, jointly and severally, in any such event under clauses (i) through (iv) of this Section 7.2(c), then Parent shall (x) pay to the Company a termination fee equal to of $5,000,000 400 million in cash (the “Non-Clearance Parent Termination Fee”) by wire transfer of same-day immediately available funds on the first no later than two (2) Business Day following Days after the date of such termination (it being understood that in no event shall the Parent Entities, collectively, be required to pay the Parent Termination Fee on more than one occasion). For the avoidance of doubt, the Parent Entities have a joint and several obligation to pay the Parent Termination Fee pursuant to clause (i) above notwithstanding that a Governmental Entity has required that the Parent Entities and/or the Company (or any of their Subsidiaries) take one or more actions to obtain approval under the HSR Act that, if taken, would constitute an Antitrust Material Adverse Effect. The Parties have agreed in light of the circumstances existing at the time of execution of this Agreement (including the inability of the Parties to quantify the damages that may be suffered by the Company) this Section 7.2(c) is reasonable, that the Parent Termination Fee represents a good faith, fair estimate of the damages that the Company would suffer in the applicable circumstances and that the Parent Termination Fee shall be payable as liquidated damages (yand not as a penalty) use commercially reasonable efforts without requiring the Company to cause certain matters prove actual damages. Notwithstanding anything to occur on the terms set forth on contrary in this Agreement, in the event that the Parent Entities and/or Merger Sub fail to effect the Closing for any reason or no reason or otherwise breach this Agreement (whether willfully, intentionally, knowingly or otherwise) or fail to perform hereunder (whether willfully, intentionally, knowingly or otherwise), then, except for an order of specific performance as and only to the extent expressly permitted by Section 7.3(b8.13, the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiaries and the Company Related Parties against the Parent LetterEntities and each of their respective former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, stockholders, Affiliates, Representatives or assignees and any and all former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, stockholders, Affiliates or assignees of any of the foregoing, and any and all former, current or future heirs, executors, administrators, trustees, successors or assigns of any of the foregoing, (each, a “Parent Related Party,” and collectively, the “Parent Related Parties”) in respect of this Agreement, any Contract or agreement executed in connection herewith (including the Debt Commitment Letters, the Equity Commitment Letter and the Guarantees) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and collect hereunder or as otherwise provided in the Guarantees, if due, (i) the Parent Termination Fee pursuant to this Section 7.2(c); (ii) any amount due pursuant to Section 7.5, Section 7.6, and clause (ii) of Section 7.2(a); and (iii) any costs, expenses and/or interest payable pursuant to Section 7.2(d), and upon payment of all such amounts, no Parent Related Party shall have any other liability or obligation for any or all losses or damages suffered or incurred by the Company or any other Company Related Party in connection with this Agreement (including the Debt Commitment Letters, the Equity Commitment Letter and the Guarantees) (including the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and neither the Company nor any other Company Related Party shall be entitled to bring or maintain any other claim, action or proceeding against the Parent Entities, Merger Sub or any other Parent Related Party arising out of this Agreement or any of the transactions contemplated hereby or any matters forming the basis for such termination. Notwithstanding anything to the contrary in this Agreement, the Company agrees that the maximum aggregate liability of the Parent Entities, under this Agreement shall be limited to an amount equal to the Parent Termination Fee, plus the applicable amounts referenced in clauses (ii) and (iii) of the prior sentence, and in no circumstances shall the Company seek any money damages in excess of such amount.
Appears in 1 contract
Samples: Merger Agreement (Safeway Inc)