Payment of Certain Fees and Expenses. (a) Except as set forth in this Section 9.03, all Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger or any other transaction is consummated. “Expenses”, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) The Company agrees that: (i) if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to BioSante (A) prior to or concurrently with the termination of this Agreement if payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available funds. (c) The Company agrees that if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Company or BioSante shall fail to pay the Termination Fee, or the Company or BioSante shall fail to pay any Expenses, when due, the term “Expenses” shall be deemed to include the costs and expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.03. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available funds.

Appears in 2 contracts

Samples: Merger Agreement (Biosante Pharmaceuticals Inc), Merger Agreement (Cell Genesys Inc)

Payment of Certain Fees and Expenses. (a) Except as set forth below in this Section ~~9.03~~13.1, ~~all Expenses incurred in connection with~~ Parent and the Company shall pay its own expenses that are incidental to negotiation, preparation, execution, delivery of the Transaction Documents and the Closing whether or not this Agreement and the transactions contemplated ~~by this Agreement~~ hereby are actually consummated; it being understood that the Company shall not be permitted to incur more than $150,000 of legal fees and accounting fees in connection with the negotiation, preparation, execution and delivery of the Transaction Documents and the Closing, including any amounts previously paid or incurred in any proposed transaction with Parent and/or Acquisition Sub ("Permitted Transaction Costs"). Any unpaid Permitted Transaction Costs shall be paid by the Parent in full at Closing and any transaction costs in excess of the Permitted Transaction Costs shall be paid on or before closing by Xxxx Xxxxxxx. (b) If (i) this Agreement is terminated by Parent or Acquisition Sub pursuant to Section 14.1(b)(except Section 8.2 through Section 8.6 to the extent the Company uses its reasonable commercial efforts to see the conditions of Section 8.2 through Section 8.6 fulfilled) or Section 14.1(c) (except Section 9.8, Section 9.10 and Section 9.15 to the extent the Company uses its reasonable commercial efforts to see the conditions of Section 9.8, Section 9.10 and Section 9.15 fulfilled) and (ii) the Company and/or Principal Shareholders enter into an Acquisition Transaction involving a third party ~~incurring~~ within one year after such ~~expenses~~termination, ~~whether or not~~ then the ~~Merger or any other transaction is consummated. “Expenses”, as used in this Agreement, shall include~~ Company agrees to pay the Parent within sixty (60) days following the entering into of such Acquisition Transaction (A) $100,000 plus (B) up to a maximum amount of $500,000 of all ~~reasonable~~ out-of-pocket expenses (~~including~~ including, without limitation, all attorneys' fees, investment banking fees, 66 printing costs, governmental filing and other governmental fees, and finder's fees and ~~expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates~~expenses) incurred by ~~a party or on its behalf~~ the Parent and Acquisition Sub in connection with ~~or related to~~ the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) The Company agrees that: (i) if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (~~including, but not limited to, unresolved SEC comments on~~ collectively the ~~Registration Statement related to BioSante), (B~~"Break-Up Fee") ~~prior to~~ as reimbursement for the lost profit opportunity of Parent and the time and expense of ~~such termination an~~ Parent's executives. Parent and Acquisition ~~Proposal shall have been publicly made known~~ Sub hereby waive any and all right, claim or ~~publicly announced with respect to~~ interest for any fees or expenses incurred by Parent or Acquisition Sub in any prior proposed transaction between the Company and ~~not publicly withdrawn at least five (5) business days prior to such termination,~~ Parent and/or Acquisition Sub. Company hereby waives any and ~~(C) within twelve months after the date of such termination~~ all right claim or interest for any fees or expenses incurred by the Company ~~enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a~~ in any prior proposed transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to between the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Parent and/or Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to BioSante (A) prior to or concurrently with the termination of this Agreement if payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available fundsSub. (c) The Company agrees that if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the ~~Company or BioSante~~ Closing occurs, each Principal Shareholder shall ~~fail to pay~~ indemnify and hold the ~~Termination Fee, or~~ Parent and the ~~Company or BioSante shall fail to pay any Expenses, when due,~~ Surviving Corporation harmless from all legal and professional fees incurred by such Principal Shareholder (other than the ~~term “Expenses” shall be deemed to include the costs and expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel~~Permitted Transaction Costs) in connection with the ~~collection under~~ negotiation, preparation, execution and ~~enforcement~~ delivery of this ~~Section 9.03~~Agreement and the other Transaction Documents and the Closing. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available funds.

Appears in 2 contracts

Samples: Merger Agreement (Wireless Telecom Group Inc), Merger Agreement (Boonton Electronics Corp)

Payment of Certain Fees and Expenses. (a) Except as set forth below in this Section ~~9.03~~13.1, ~~all Expenses incurred in connection with~~ Parent and the Company shall pay its own expenses that are incidental to negotiation, preparation, execution, delivery of the Transaction Documents and the Closing whether or not this Agreement and the transactions contemplated ~~by this Agreement~~ hereby are actually consummated; it being understood that the Company shall not be permitted to incur more than $100,000 of legal fees and $5,000 of accounting fees in connection with the negotiation, preparation, execution and delivery of the Transaction Documents and the Closing ("Permitted Transaction Costs"). Any unpaid Permitted Transaction Costs shall be paid by the Parent in full at Closing. (b) If (i) this Agreement is terminated by Parent or Acquisition Sub pursuant to Section 14.1(b)( except Section 8.2 through Section 8.7 to the extent the Company uses its reasonable commercial efforts to see the conditions of Section 8.2 through Section 8.7 fulfilled) or Section 14.1(c) (except Section 9.8, Section 9.10 and Section 9.15 to the extent the Company uses its reasonable commercial efforts to see the conditions of Section 9.8, Section 9.10 and Section 9.15 fulfilled) and (ii) the Company and/or Principal Shareholders enter into an Acquisition Transaction involving a third party ~~incurring~~ within one year after such ~~expenses~~termination, ~~whether or not~~ then the ~~Merger or any other transaction is consummated. “Expenses”, as used in this Agreement, shall include~~ Company agrees to pay the Parent within sixty (60) days following the entering into of such Acquisition Transaction (A) $100,000 plus (B) up to a maximum amount of $500,000 of all ~~reasonable~~ out-of-pocket expenses (~~including~~ including, without limitation, all attorneys' fees, investment banking fees, printing costs, governmental filing and other governmental fees, and finder's fees and ~~expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates~~expenses) incurred by ~~a party or on its behalf~~ the Parent and Acquisition Sub in connection with ~~or related to~~ the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) The Company agrees that: (i) if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (~~including, but not limited to, unresolved SEC comments on~~ collectively the ~~Registration Statement related to BioSante), (B~~"Break-Up Fee") ~~prior to~~ as reimbursement for the lost profit opportunity of Parent and the time and expense of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to BioSante (A) prior to or concurrently with the termination of this Agreement if payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available fundsParent's executives. (c) The Company agrees that if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the ~~Company or BioSante~~ Closing occurs, each Principal Shareholder shall ~~fail to pay~~ indemnify and hold the ~~Termination Fee, or~~ Parent and the ~~Company or BioSante shall fail to pay any Expenses, when due,~~ Surviving Corporation harmless from all legal and professional fees incurred by such Principal Shareholder (other than the ~~term “Expenses” shall be deemed to include the costs and expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel~~Permitted Transaction Costs) in connection with the ~~collection under~~ 66 negotiation, preparation, execution and ~~enforcement~~ delivery of this ~~Section 9.03~~Agreement and the other Transaction Documents and the Closing. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available funds.

Appears in 2 contracts

Samples: Merger Agreement (Wireless Telecom Group Inc), Merger Agreement (Boonton Electronics Corp)

Payment of Certain Fees and Expenses. (a) Except as set forth in this Section 9.03, all Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger or any other transaction is consummated. “Expenses”, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of stockholder or shareholder approvals, the ~~Company Stockholder Approval~~ filing of any required notices under the HSR Act or ~~the BioSante Stockholder Approval~~ other similar regulations and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) The Company agrees that: (i) if ~~BioSante~~ Parent shall terminate this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive ~~acquisition~~ agreement ~~(other than a confidentiality agreement)~~ with respect ~~to (and subsequently consummates)~~to, or ~~consummates~~ consummates, a transaction contemplated ~~by,~~ by an Acquisition ~~Proposal (changing the 20~~Proposal; provided, that for purposes of this Section 9.03(b)(i), all references to 25% ~~amount referred to~~ in the definition of “Acquisition Proposal” shall be replaced with references to 50~~% for purposes of this Section 9.03(b(i))~~%; or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (~~A)(x~~A) ~~BioSante~~ Parent or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i~~), and (y~~) ~~the failure of the Effective Time to occur on~~ or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of Parent shall terminate this Agreement ~~(including, but not limited to, unresolved SEC comments on the Registration Statement related~~ pursuant to ~~BioSante~~Section 9.01(c)(i), (B) prior to the time of such termination an Acquisition Proposal shall have been made or communicated to the senior management of the Company or the Company Board or an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the ~~Company and not publicly withdrawn at least five (5) business days prior to such termination~~Company, and (C) within twelve months after the date of such termination the Company enters into a definitive ~~acquisition~~ agreement ~~(other than a confidentiality agreement)~~ with respect ~~to (and subsequently consummates)~~to, or ~~consummates~~ consummates, a transaction contemplated ~~by,~~ by an Acquisition Proposal (~~changing~~ in each case, whether or not such Acquisition Proposal is the 20same as the original Acquisition Proposal made, communicated, publicly made known or publicly announced); provided, that for purposes of this Section 9.03(b)(iii), all references to 25% ~~amount referred to~~ in the definition of “Acquisition Proposal” shall be replaced with references to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B));%; or (iv) if (A) ~~BioSante~~ Parent or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the ~~Company and not publicly withdrawn at least five (5) business days prior to such failure~~Company, and (C) within twelve months after the date of such termination the Company enters into a definitive ~~acquisition~~ agreement ~~(other than a confidentiality agreement)~~ with respect ~~to (and subsequently consummates)~~to, or consummates, a transaction contemplated by an Acquisition Proposal (~~changing~~ in each case, whether or not such Acquisition Proposal is the 20same as the original Acquisition Proposal publicly made known or publicly announced); provided, that for purposes of this Section 9.03(b)(iv), all references to 25% ~~amount referred to~~ in the definition of “Acquisition Proposal” shall be replaced with references to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B))%; then the Company shall pay to ~~BioSante~~ Parent (A) prior to or concurrently with the termination of this Agreement if payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business ~~day)~~ day after the ~~consummation of the transactions contemplated by such definitive acquisition agreement or the consummation~~ first of such ~~Acquisition Proposal~~ events shall have occurred) with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $~~1,000,000~~ 110,000,000 (the “Termination Fee”)~~, minus any Expenses paid pursuant to Section 9.03(c) hereof~~, which amount shall be payable in immediately available funds. (c) The Company agrees that if ~~BioSante~~ Parent shall terminate this Agreement pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse ~~BioSante~~ Parent for all of its ~~Expenses actually incurred~~Expenses, up to a maximum of $~~500,000~~ 10,000,000 (not later than three business days after submission of statements ~~therefor~~therefore). ~~BioSante~~ Parent agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then ~~BioSante~~ Parent shall reimburse the Company for all of its ~~Expenses actually incurred~~Expenses, up to a maximum of $~~500,000~~ 10,000,000 (not later than three business days after submission of statements ~~therefor~~therefore). Any reimbursement of expenses by the Company pursuant to this Section 9.03(c) shall be credited against any amount that may become payable pursuant to Section 9.03(b). (d) The Company and ~~BioSante~~ Parent acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Company ~~or BioSante~~ shall fail to pay the Termination Fee, or the Company or ~~BioSante~~ Parent shall fail to pay any Expenses, when due, the term “Expenses” shall be deemed to include the costs and expenses actually incurred or accrued by ~~BioSante~~ Parent or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.03. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available funds.

Appears in 2 contracts

Samples: Merger Agreement (Corn Products International Inc), Merger Agreement (Bunge LTD)

Payment of Certain Fees and Expenses. (a) Except as set forth in this Section ~~9.03~~7.3, all ~~Expenses~~ fees and expenses incurred by Parent and/or Acquisition Sub in connection with this Agreement and the ~~transactions~~ Transactions contemplated hereby shall be paid by Parent and/or Acquisition Sub, and all fees and expenses incurred by the Company in connection with this Agreement and the Transactions contemplated hereby shall be paid by the ~~party incurring such expenses~~Company, in each case, whether or not the Merger ~~or any other transaction~~ is consummated~~. “Expenses”~~; provided, ~~as used in this Agreement~~however, that Parent and the Company shall ~~include all reasonable out-of-pocket expenses (including~~ share equally all fees and ~~expenses of counsel~~expenses, ~~accountants, investment bankers, experts and consultants to a party hereto and its affiliates)~~ incurred ~~by a party or on its behalf~~ in ~~connection with or related~~ relation to the ~~authorization, preparation, negotiation, execution~~ printing and ~~performance of this Agreement,~~ filing with the ~~preparation, printing, filing and mailing~~ SEC of the ~~Registration~~ Offer Documents, 14D-9 and Proxy Statement (including any preliminary materials related thereto) and ~~the Joint Proxy Statement, the solicitation of the Company Stockholder Approval~~ any amendments or ~~the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement~~supplements thereto. (b) ~~The Company agrees that: (i) if BioSante shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Parent in accordance with Section ~~9.01(c)(ii~~7.1(b)(1) or Section ~~9.01(c)(iii~~7.1(b)(4) ~~and within twelve months after~~ as a result of a knowing or willful breach by the ~~date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates)~~Company, or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to ~~BioSante (A) prior to or concurrently with~~ Parent the ~~termination~~ Termination Fee and the Expenses of Parent and Acquisition Sub. If this Agreement ~~if payable pursuant~~ is terminated by Parent in accordance with Section 7.1(b)(1) hereof as a result of a non-willful breach by Company, then the Company shall pay to ~~Section 9.03(b)(ii)~~Parent the Expenses, ~~or (B) promptly (but in any event no later than one (1) business day) after the consummation~~ not to exceed $500,000, of ~~the transactions contemplated by such definitive acquisition agreement or the consummation of such~~ Parent and Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available fundsSub. (c) ~~The Company agrees that if BioSante shall terminate~~ If this Agreement is terminated by the Company pursuant to Section ~~9.01(c)(i~~7.1(c)(1) as a result of a knowing or willful breach by Parent, then Parent shall pay to the Company the Termination Fee and the Expenses of the Company. If this Agreement is terminated by the Company in accordance with Section 7.1(c)(1) as a result of a non-willful breach by Parent, then Parent shall pay the Company its Expenses, not to exceed $500,000. If this Agreement is terminated by the Company in accordance with Section 7.1(c)(2), ~~Section 9.01(c)(ii) or Section 9.01(c)(iii)~~ then the Company ~~shall, whether or not any payment is made pursuant~~ shall pay to ~~Section 9.03(b), reimburse BioSante for all~~ Parent the Termination Fee and the Expenses of ~~its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if~~ the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor)Parent and Acquisition Sub. (d) The ~~Company and BioSante~~ parties acknowledge that the agreements contained in ~~this~~ Section ~~9.03~~ 7.3(b) and Section 7.3(c) are an integral part of the ~~transactions~~ Transactions contemplated by this Agreement~~. In the event that~~ , and that, without these agreements, the Company ~~or BioSante shall fail to pay the Termination Fee, or the Company or BioSante shall fail to pay any Expenses, when due, the term “Expenses” shall be deemed to include the costs~~ and ~~expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of~~ Parent would not enter into this ~~Section 9.03~~Agreement. (e) ~~BioSante agrees that if~~ Any payment of an applicable Termination Fee and/or applicable Expenses pursuant to this Section 7.3 shall be made as follows: (1) in the ~~Company shall terminate this Agreement~~ case of a termination pursuant to Section ~~9.01(d)(iii~~7.1(b)(1) or Section ~~9.01(d)(iv~~7.1(c)(1), the Termination Fee and Expenses (not to exceed $500,000 in the case of a non-willful breach) ~~and~~ shall be paid within ~~twelve months~~ one Business Day after termination of this Agreement; (2) in the ~~date~~ case of ~~such~~ a termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section ~~9.01(d)(iv~~7.1(b)(4), the Termination Fee will be paid to Parent within one Business Day after termination of this Agreement and the Expenses of Parent and Acquisition Sub will be paid promptly and, in no event, later than five Business Days after the submission of such Expenses for payment; ~~then BioSante~~ and (3) in the case of a termination pursuant to Section 5.9(c) and Section 7.1(c)(2), the Termination Fee will be paid to Parent within one Business Day after termination of this Agreement and the Expenses of Parent and Acquisition Sub will be paid promptly and, in no event, later than five Business Days after the submission of such Expenses for payment. (f) If either party fails to pay to (or reimburse) the other party any fee or expense due hereunder (including any Termination Fee), such party shall pay the ~~Company promptly~~ costs and expenses (~~but~~ including legal fees and expenses) in connection with any ~~event no later than one (1) business day) after~~ action, including the ~~consummation~~ filing of any lawsuit or other legal action, taken to collect payment, together with interest on the ~~applicable debt or equity financing transaction~~amount of any unpaid fee and/or expense at the publicly announced prime rate of Citibank, a N.A. from the date such fee ~~in an amount equal~~ was required to ~~$1,000,000, minus any Expenses~~ be paid ~~pursuant~~ to ~~Section 9.03(c), which amount shall be payable in immediately available funds~~the date it is paid.

Appears in 2 contracts

Samples: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)

Payment of Certain Fees and Expenses. (a) Except as set forth in this Section ~~9.03~~14.3, all ~~Expenses~~ fees and expenses incurred by Parent and/or Merger Sub in connection with this Agreement and the transactions contemplated ~~by this Agreement~~ hereby shall be paid by Parent and/or Merger Sub, and all fees and expenses incurred by Urigen in connection with this Agreement and the ~~party incurring such expenses~~transactions contemplated hereby shall be paid by Urigen, in each case, whether or not the Merger ~~or any other transaction~~ is consummated. “Expenses”, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) ~~The Company agrees that: (i) if BioSante shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Parent in accordance with Section ~~9.01(c)(ii~~14.1(b)(i) as a result of a knowing or willful breach by Urigen, by Parent in accordance with Section 14.1(b)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates14.1(b)(iv), or ~~consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to~~ by Urigen in ~~the definition of “Acquisition Proposal” to 50% for purposes of this~~ accordance with Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i14.1(c)(iii), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then ~~the Company~~ Urigen shall pay to ~~BioSante (A) prior to or concurrently with~~ Parent the ~~termination~~ Termination Fee and the Expenses of Parent and Merger Sub. If this Agreement ~~if payable pursuant~~ is terminated by Parent in accordance with Section 14.1(b)(i) hereof as a result of a non-willful breach by Urigen, then except as otherwise provided above, Urigen shall pay to ~~Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after~~ Parent the ~~consummation~~ Expenses of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available fundsParent and Merger Sub. (c) ~~The Company agrees that if BioSante shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Urigen in accordance with Section ~~9.01(c)(i)~~14.1(c)(i) as a result of a knowing or willful breach by Parent, by Urigen in accordance with Section ~~9.01(c)(ii~~14.1(c)(ii) or Section ~~9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b~~14.1(c)(iv), ~~reimburse BioSante for all~~ or by Parent in accordance with Section 14.1(b)(iii), then Parent shall pay to Urigen the Termination Fee and the Expenses of ~~its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor)~~Urigen. ~~BioSante agrees that if the Company shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Urigen in accordance with Section ~~9.01(d)(i)~~14.1(c)(i) as a result of a non-willful breach by Parent or Merger Sub, ~~Section 9.01(d)(iii) or Section 9.01(d)(iv)~~ then ~~BioSante~~ except as provided above, Parent shall ~~reimburse the Company for all of~~ pay Urigen its ~~Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor)~~Expenses. (d) The ~~Company and BioSante~~ parties acknowledge that the agreements contained in ~~this~~ Section ~~9.03~~ 14.3(b) and Section 14.3(c) are an integral part of the transactions contemplated by this Agreement~~. In the event that the Company or BioSante shall fail to pay the Termination Fee~~, ~~or the Company or BioSante shall fail to pay any Expenses~~and that, ~~when due~~without these agreements, ~~the term “Expenses” shall be deemed to include the costs~~ Urigen and ~~expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of~~ Parent would not enter into this ~~Section 9.03~~Agreement. (e) ~~BioSante agrees that if~~ Any payment of an applicable Termination Fee and/or applicable Expenses pursuant to this Section 14.3 shall be made as follows: (i) In the ~~Company shall terminate this Agreement~~ case of either a termination by Parent pursuant to Section ~~9.01(d)(iii~~14.1(b)(i) or Section ~~9.01(d)(iv~~14.1(b)(ii) involving a willful breach or Section 14.1(b)(iv) or by Urigen pursuant to Section 14.1 (c)(iii), the Termination Fee will be paid by Urigen to Parent within one Business Day after termination of this Agreement and ~~within twelve months~~ the Expenses of Parent and Merger Sub shall be paid by Urigen promptly and in no event later than five Business Days after the ~~date~~ submission of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or Expenses for payment including reasonable documentary support if requested by Urigen; (ii) in the ~~date that the Company terminates this Agreement~~ case of a termination by Parent pursuant to Section ~~9.01(d)(iv~~14.1(b)(i) not involving a willful breach, the Expenses of Parent and Merger Sub shall be paid by Urigen promptly and in no event later than five Business Days after the submission of such Expenses for payment including reasonable documentary support if requested by Urigen; (iii) in the case of a termination by Urigen pursuant to Section 14.1(c)(i) or Section 14.1(c)(ii) involving a willful breach or Section 14.1(c)(iv)~~; then BioSante~~ , or by Parent pursuant to Section 14.1(b)(iii), the Termination Fee will be paid by Parent to Urigen within one Business Day after termination of this Agreement and Parent will pay the Expenses of Urigen promptly and in no event later than five (5) Business Days after the submission of such Expenses for payment including reasonable documentary support if requested by Parent. (iv) In the case of a termination by Urigen pursuant to Section 14.1(c)(i) involving a non-willful breach, Parent will pay the Expenses of Urigen promptly and in no event later than five (5) Business Days after the submission of such Expenses for payment including reasonable documentary support if requested by Parent. (f) Notwithstanding anything in this Agreement to the contrary, whether or not the Merger is consummated, each of Parent and Urigen shall bear and pay one-half of the filing and printing fees incurred in connection the Registration Statement, the Proxy Statements and the Prospectus as well as one-half of the fees for listing the Parent Stock on the Nasdaq Capital Market in connection with the Merger and in connection with the substitute listing for the Reverse Split. (g) If either party fails to pay to (or reimburse) the other party any fee or expense due hereunder (including any Termination Fee), such party shall pay the ~~Company promptly~~ costs and expenses (~~but~~ including legal fees and expenses) in connection with any ~~event no later than one (1) business day) after~~ action, including the ~~consummation~~ filing of any lawsuit or other legal action, taken to collect payment, together with interest on the ~~applicable debt or equity financing transaction~~amount of any unpaid fee and/or expense at the publicly announced prime rate of Wachovia Bank, a N.A. from the date such fee ~~in an amount equal~~ was required to ~~$1,000,000, minus any Expenses~~ be paid ~~pursuant~~ to ~~Section 9.03(c), which amount shall be payable in immediately available funds~~the date it is paid.

Appears in 1 contract

Samples: Merger Agreement (Valentis Inc)

Payment of Certain Fees and Expenses. (a) Except as set forth in this Section ~~9.03~~7.3, all ~~Expenses~~ fees and expenses incurred by Parent and/or ----------- Merger Sub in connection with this Agreement and the ~~transactions~~ Transactions contemplated hereby shall be paid by Parent and/or Merger Sub, and all fees and expenses incurred by the Company in connection with this Agreement and the Transactions contemplated hereby shall be paid by the ~~party incurring such expenses~~Company, in each case, whether or not the Merger ~~or any other transaction~~ is consummated~~. “Expenses”~~; provided, ~~as used in this Agreement~~however, that Parent and the Company shall ~~include~~ -------- ------- share equally all ~~reasonable out-of-pocket expenses (including all~~ SEC filing fees and printing expenses ~~of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates)~~ incurred ~~by a party or on its behalf~~ in connection with or the printing and filing of the Proxy Statement (including any preliminary materials related ~~to the authorization, preparation, negotiation, execution and performance of this Agreement~~thereto), the ~~preparation, printing, filing and mailing of the~~ Registration ~~Statement and the Joint Proxy~~ Statement, ~~the solicitation of the Company Stockholder Approval~~ and, in each case, any amendments or ~~the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement~~supplements thereto. (b) ~~The Company agrees that: (i) if BioSante shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Parent in accordance with Section ~~9.01(c)(ii~~7.1(b)(i) as a result of a willful breach by the Company, or is ----------------- terminated by Parent in accordance with Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates7.1(b)(ii), Section ------------------- ------- 7.1(b)(iii), or ~~consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this~~ Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i7.1(b)(iv), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to ~~BioSante (A) prior to or concurrently with~~ Parent the ~~termination of~~ --------------------- Termination Fee and its Expenses. If this Agreement ~~if payable pursuant~~ is terminated by Parent in accordance with Section 7.1(b)(i) hereof as a result of a non-willful breach by ----------------- Company, then the Company shall pay to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available fundsParent its Expenses. (c) ~~The Company agrees that if BioSante shall terminate~~ If this Agreement is terminated by the Company pursuant to Section ~~9.01(c)(i~~------- 7.1(c)(i) as a result of a willful breach by Parent or is terminated by the ---------- Company in accordance with Section 7.1(c)(ii), Section ~~9.01(c)(ii~~7.1(c)(iii) or Section ~~9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b~~------------------ ------------------- ------- 7.1(c)(iv), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if the Company then Parent shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Company or BioSante shall fail to pay the Termination Fee, or the Company or BioSante shall fail to pay any Expenses, when due, the term “Expenses” shall be deemed to include the costs and expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.03. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company ~~equal to at least 85% of~~ the ~~Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that~~ Termination Fee and its ---------- Expenses. If this Agreement is terminated by the Company ~~terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but~~ in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available funds.accordance with

Appears in 1 contract

Samples: Merger Agreement (Eimo Oyj)

Payment of Certain Fees and Expenses. (a) Except as set forth in this ~~Section 9.03~~SECTION 7.3, all ~~Expenses~~ fees and expenses incurred by Parent and/or Merger Sub in connection with this Agreement and the ~~transactions~~ Transactions contemplated hereby shall be paid by Parent and/or Merger Sub, and all fees and expenses incurred by the Company in connection with this Agreement and the Transactions contemplated hereby shall be paid by the ~~party incurring such expenses~~Company, in each case, whether or not the Merger ~~or any other transaction~~ is consummated~~. “Expenses”~~; PROVIDED, ~~as used in this Agreement~~HOWEVER, that Parent and the Company shall ~~include~~ share equally all ~~reasonable out-of-pocket expenses (including all~~ SEC filing fees and printing expenses ~~of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates)~~ incurred ~~by a party or on its behalf~~ in connection with or the printing and filing of the Proxy Statement (including any preliminary materials related ~~to the authorization, preparation, negotiation, execution and performance of this Agreement~~thereto), the ~~preparation, printing, filing and mailing of the~~ Registration ~~Statement and the Joint Proxy~~ Statement, ~~the solicitation of the Company Stockholder Approval~~ and, in each case, any amendments or ~~the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement~~supplements thereto. (b) ~~The Company agrees that: (i) if BioSante shall terminate~~ If this Agreement ~~pursuant to Section 9.01(c)(ii~~is terminated by Parent in accordance with SECTION 7.1(b)(i) as a result of a willful breach by the Company, or ~~Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement)~~ is terminated by Parent in accordance with ~~respect to (and subsequently consummates~~SECTION 7.1(b)(ii), SECTION 7.1(b)(iii), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iSECTION 7.1(b)(iv), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to ~~BioSante (A) prior to or concurrently with~~ Parent the ~~termination of~~ Termination Fee and its Expenses. If this Agreement ~~if payable pursuant~~ is terminated by Parent in accordance with SECTION 7.1(b)(i) hereof as a result of a non-willful breach by Company, then the Company shall pay to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available fundsParent its Expenses. (c) ~~The Company agrees that if BioSante shall terminate~~ If this Agreement is terminated by the Company pursuant to ~~Section 9.01(c)(i~~SECTION 7.1(c)(i) as a result of a willful breach by Parent or is terminated by the Company in accordance with SECTION 7.1(c)(ii), ~~Section 9.01(c)(ii~~SECTION 7.1(c)(iii) or ~~Section 9.01(c)(iii)~~ SECTION 7.1(c)(iv), then Parent shall pay to the Company ~~shall, whether or not any payment~~ the Termination Fee and its Expenses. If this Agreement is made pursuant to Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if terminated by the Company in accordance with SECTION 7.1(c)(i) as a result of a non-willful breach by Parent, then Parent shall ~~terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse~~ pay the Company ~~for all of~~ its ~~Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor)~~Expenses. (d) The ~~Company and BioSante~~ parties acknowledge that the agreements contained in this ~~Section 9.03~~ SECTION 7.3(b) and SECTION 7.3(c) are an integral part of the transactions contemplated by this Agreement~~. In the event that~~ , and that, without these agreements, the Company ~~or BioSante shall fail to pay the Termination Fee, or the Company or BioSante shall fail to pay any Expenses, when due, the term “Expenses” shall be deemed to include the costs~~ and ~~expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of~~ Parent would not enter into this ~~Section 9.03~~Agreement. (e) ~~BioSante agrees that if~~ Any payment of the ~~Company~~ Termination Fee and/or the Expenses pursuant to this SECTION 7.3 shall ~~terminate~~ be made: in the case of a termination pursuant to SECTION 7.1(b)(i), SECTION 7.1(b)(ii), SECTION 7.1(b)(iii), SECTION 7.1(c)(i) , SECTION 7.1(c)(ii) or SECTION 7.1(c)(iii), within one Business Day after termination of this ~~Agreement~~ Agreement, in the case of a termination pursuant to Section ~~9.01(d)(iii) or Section 9.01(d)(iv) and~~ 7.1(b)(iv), $5.0 million of the Termination Fee will be paid within ~~twelve months~~ one Business Day after termination of this Agreement, and, if a Parent Inclusive Superior Proposal is consummated within one year from the date of such ~~termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (~~termination, the remaining $1.4 million of the Termination Fee, and ~~subsequently consummates) a debt or equity financing transaction that results in net proceeds to~~ the Expenses of the Company, will be paid upon the consummation of the Company ~~equal~~ Superior Proposal, in the case of a termination pursuant to ~~at least 85%~~ SECTION 7.1(c)(iv), $5 million of the ~~Target Net Cash applicable on the earlier~~ Termination Fee will be paid within one Business Day after termination of ~~(i) the date that the BioSante Board makes~~ this Agreement, and, if a ~~Change in BioSante Recommendation, or (ii) the date that the~~ Company ~~terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than~~ Proposal is consummated within one (1) ~~business day) after~~ year from the date of such termination, the remaining $1.4 million of the Termination Fee, and the Expenses of the Parent and Merger Sub, will be paid upon the consummation of the ~~applicable debt~~ Company Superior Proposal. (f) If either party fails to pay to (or ~~equity financing transaction, a~~ reimburse) the other party any fee ~~in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c~~or expense due hereunder (including the Termination Fee), ~~which~~ such party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount ~~shall~~ of any unpaid fee and/or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee was required to be ~~payable in immediately available funds~~paid to the date it is paid.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Triple S Plastics Inc)

Payment of Certain Fees and Expenses. (a) Except as set forth below in this Section ~~9.03~~13.1, ~~all Expenses incurred in connection with~~ Parent and Company shall pay its own expenses that are incidental to negotiation, preparation, execution, delivery of the Transaction Documents and the Closing whether or not this Agreement and the transactions contemplated by hereby are actually consummated; it being understood that Company shall not be permitted to incur more than $50,000 of legal fees and accounting fees in connection with the negotiation, preparation, execution and delivery of the Transaction Documents and the Closing ("Permitted Transaction Costs"). (b) If (i) this Agreement ~~shall be paid~~ is terminated by Parent or Acquisition Sub pursuant to Section 14.1(b) (except Section 8.2 through Section 8.6 to the extent Company uses its reasonable commercial efforts to see the conditions of Section 8.2 through Section 8.6 fulfilled) or Section 14.1(c) (except Section 9.8, Section 9.10 and Section 9.15 to the extent Company uses its reasonable commercial efforts to see the conditions of Section 9.8, Section 9.10 and Section 9.15 fulfilled) and (ii) Company enters into an acquisition transaction involving a third party ~~incurring~~ within one year after such ~~expenses~~termination, ~~whether or not~~ then Company agrees to pay Parent within sixty (60) days following the ~~Merger or any other~~ entering into of such acquisition transaction ~~is consummated. “Expenses”, as used in this Agreement, shall include~~ (A) $50,000 plus (B) all ~~reasonable~~ out-of-pocket expenses (~~including~~ including, without limitation, all attorneys' fees, investment banking fees, printing costs, governmental filing and other governmental fees, and finder's fees and ~~expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates~~expenses) incurred by ~~a party or on its behalf~~ Parent and Acquisition Sub in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) The Company agrees that: (i) if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to BioSante (A) prior to or concurrently with the termination of this Agreement if payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available funds. (c) The Company agrees that if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this ~~Agreement~~Agreement (collectively the "BreakUp Fee") as reimbursement for the lost profit opportunity of Parent and the time and expense of Parent's executives. ~~In the event that the Company or BioSante shall fail to pay the Termination Fee~~Parent and Acquisition Sub hereby waive any and all right, claim, or ~~the~~ interest for any fees or expenses incurred by Parent or Acquisition Sub in any prior proposed transaction between Company ~~or BioSante shall fail to pay~~ and Parent and/or Acquisition Sub. Company hereby waives any ~~Expenses~~and all right, when due, the term “Expenses” shall be deemed to include the costs and expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.03. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendationclaim, or ~~(ii) the date that the~~ interest for any fees or expenses incurred by Company ~~terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but~~ in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available fundsprior proposed transaction between Company and Parent and/or Acquisition Sub.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Chem International Inc)

Payment of Certain Fees and Expenses. (a) ~~Except as set forth in this Section 9.03, all Expenses~~ All costs and expenses ------------------------------------ incurred in connection with this Agreement and the transactions contemplated ~~by this Agreement~~ hereby and thereby shall be paid by the party incurring such expenses, whether or not the Merger or any other transaction is consummated. “Expenses”, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) ~~The Company agrees that: (i)~~ Notwithstanding the foregoing, if ~~BioSante shall terminate~~ this Agreement is terminated pursuant to Section ~~9.01(c)(ii~~8.1(e)(ii) or Section 9.01(c)(iii) and within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) ~~if (A)(x~~or 8.1(f)(ii) ~~BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i)~~hereof, ~~and (y) the failure of the Effective Time to occur on~~ or prior to the ~~Termination Date is not primarily attributable to~~ termination of the Agreement, any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (person other than ~~a confidentiality agreement) with respect to (and subsequently consummates)~~Parent, Purchaser or ~~consummates a transaction contemplated by,~~ an ~~Acquisition Proposal (changing the~~ affiliate thereof acquires in excess of 20% ~~amount referred to in~~ of the ~~definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C)~~issued and outstanding Shares, and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to ~~BioSante~~ Parent (Ai) ~~prior to or~~ concurrently with such termination, an amount equal to U.S. $50 million (the ~~termination~~ "Termination Fee"), plus (ii) promptly, but in no event later than two days after being furnished documentation in respect thereto by Parent ("Documentation"), Parent's or its affiliates' out-of-pocket fees and expenses (including legal, investment banking, financing commitment fees, and commercial banking fees and expenses) actually incurred in connection with the Merger, due diligence investigation, the negotiation and execution of this Agreement ~~if payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after the consummation of~~ and the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee of $1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available funds. (c) The Company agrees that if BioSante shall terminate this Agreement pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii) then the Company shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, hereby up to a maximum amount of $~~500,000~~ 25 million (the "Termination Expenses", and together with the Termination Fee, the "Termination Amount"). In addition, if this Agreement is terminated pursuant to Section 8.1(d) and at the time of such termination, Parent is not in material breach of this Agreement, then the Company shall pay to Parent, promptly but in no event later than ~~three business~~ two days after ~~submission of statements therefor). BioSante agrees that~~ being furnished Documentation by Parent, the Termination Expenses, and, if the Company shall ~~terminate this Agreement pursuant~~ thereafter, within nine months after such termination, enters into an agreement with respect to ~~Section 9.01(d)(i)~~an Acquisition Proposal or a third party acquires more than 50% of the Company's outstanding shares or more than 50% of the Company's assets, ~~Section 9.01(d)(iii) or Section 9.01(d)(iv)~~ then ~~BioSante shall reimburse~~ the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that the Company or BioSante shall ~~fail to~~ pay the Termination ~~Fee~~Fee to Parent concurrently with entering into such agreement. Any payments required to be made pursuant to this Section shall be made by wire transfer of same day funds to an account designated by Parent. Notwithstanding anything to the contrary herein, or in no event shall there be more than one payment each of the ~~Company or BioSante shall fail to pay any~~ Termination Fee and Termination Expenses, ~~when due, the term “Expenses” shall~~ provided that Termination Expenses may be ~~deemed~~ paid from time to ~~include the costs and expenses actually incurred or accrued by BioSante or the Company, as the case may be, (including fees and expenses~~ time upon submission of ~~counsel) in connection with the collection under and enforcement of this Section 9.03~~Documentation. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available funds.

Appears in 1 contract

Samples: Merger Agreement (Safety Kleen Corp)

Payment of Certain Fees and Expenses. (a) Except as set forth in this Section ~~9.03~~7.3, all ~~Expenses~~ fees and expenses incurred by Parent and/or Merger Sub in connection with this Agreement and the ~~transactions~~ Transactions contemplated hereby shall be paid by Parent and/or Merger Sub, and all fees and expenses incurred by the Company in connection with this Agreement and the Transactions contemplated hereby shall be paid by the ~~party incurring such expenses~~Company, in each case, whether or not the Merger ~~or any other transaction~~ is consummated. “Expenses”, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) ~~The Company agrees that: (i) if BioSante shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Parent in accordance with Section ~~9.01(c)(ii~~7.1(b)(i) or Section ~~9.01(c)(iii~~7.1(b)(ii) ~~and within twelve months after the date~~ as a result of ~~such termination~~ a knowing or willful breach by the Company ~~enters into a definitive acquisition agreement~~ or in accordance with Section 7.1(b) (~~other than a confidentiality agreement) with respect to (and subsequently consummates~~iii), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b(i)); or (ii) if the Company shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure of the Effective Time to occur on or prior to the Termination Date is not primarily attributable to any action or inaction by, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to ~~BioSante (A) prior to or concurrently with~~ Parent the ~~termination~~ Regular Termination Fee and the Expenses of ~~this Agreement~~ Parent and Merger Sub; provided, however, that if ~~payable pursuant to Section 9.03(b)(ii), or (B) promptly (but in any event no later than one (1) business day) after~~ the ~~consummation of the transactions contemplated by such definitive acquisition~~ Company shall enter into an agreement ~~or the consummation of such Acquisition Proposal~~ with respect to a Company Superior Proposal within six months of the ~~termination of~~ Termination Date, the Company shall also pay Parent the Special Termination Fee. If this Agreement ~~if payable pursuant~~ is terminated by Parent in accordance with Section 7.1(b)(i) hereof as a result of a non-willful breach by Company, then except as otherwise provided above, the Company shall pay to ~~Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee~~ Parent the Expenses of ~~$1,000,000 (the “Termination Fee”), minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available funds~~Parent and Merger Sub. (c) ~~The Company agrees that if BioSante shall terminate~~ If this Agreement ~~pursuant to~~ is terminated by Parent in accordance with Section ~~9.01(c)(i~~7.1(b)(v), ~~Section 9.01(c)(ii) or Section 9.01(c)(iii)~~ then Parent shall pay to Company the Regular Termination Fee and the Expenses of the Company ~~shall, whether or not any payment is made pursuant to Section 9.03(b), reimburse BioSante~~ (as liquidated damages and as the Company’s sole and exclusive remedy for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements thereforsuch termination). (d) If this Agreement is terminated by the Company pursuant to Section 7.1(c)(i) as a result of a knowing or willful breach by Parent or in accordance with Section 7.1(c)(iv), then Parent shall pay to the Company the Regular Termination Fee and the Expenses of the Company. If this Agreement is terminated by the Company in accordance with Section 7.1(c)(i) as a result of a non-willful breach by Parent, then Parent shall pay the Company its Expenses. If this Agreement is terminated by the Company in accordance with Section 7.1(c)(ii), then the Company shall pay to Parent the Regular Termination Fee, the Special Termination Fee and the Expenses of the Parent and Merger Sub. (e) The ~~Company and BioSante~~ parties acknowledge that the agreements contained in ~~this~~ Section ~~9.03~~ 7.3(b) Section 7.3(c), and Section 7.3(d) are an integral part of the transactions contemplated by this Agreement. , and that, without these agreements, the Company and Parent would not enter into this Agreement. (f) Any payment of an applicable Termination Fee and/or applicable Expenses pursuant to this Section 7.3 shall be made as follows: (1) in the case of either a termination by Parent pursuant to Section 7.1(b)(i) involving a willful breach or Section 7.1 (b) (ii), the Regular Termination Fee will be paid to Parent within one Business Day after termination of this Agreement and the Expenses of Parent and Merger Sub shall be paid promptly and in no event later than five Business Days after the submission of such Expenses for payment and, if applicable, the Special Termination Fee shall be paid promptly after the execution by the Company of a definitive agreement with respect to a Company Superior Proposal; (2) in the case of a termination by Parent pursuant to Section 7.1(b)(i) not involving a willful breach, the Expenses of Parent and Merger Sub shall be paid promptly and in no event later than five Business Days after the submission of such Expenses for payment; (3) in the case of a termination by Parent pursuant to Section 7.1(b)(iii), the Regular Termination Fee will be paid to Parent in twelve equal monthly installments, beginning on the fifth (5th) Business Day after termination of this Agreement, plus interest on the unpaid balance at a simple rate of interest of 6% per year, beginning on the fifth (5th) Business Day after termination of this Agreement and the Expenses of Parent and Merger Sub shall be paid promptly and in no event later than five Business Days after the submission of such Expenses for payment. (4) in the case of a termination by Parent pursuant to Section 7.1(b)(v), the Regular Termination Fee will be paid by Parent to the Company in twelve equal monthly installments beginning on the fifth (5th) Business Day after termination of this Agreement, plus interest on the unpaid balance at a simple rate of interest of 6% per year beginning on the fifth Business Day after termination of this Agreement. (5) in the case of a termination by the Company pursuant to Section 7.1(c)(i) involving a willful breach, the Regular Termination Fee will be paid to Company within one Business Day after termination of this Agreement and Parent will pay the Expenses of the Company promptly and in no event later than five (5) Business Days after the submission of such Expenses for payment. (6) In the ~~event that~~ case of a termination by the Company ~~or BioSante~~ pursuant to Section 7.1(c)(i) involving a non-willful breach, Parent will pay the Expenses of the Company promptly and in no event later than five (5) Business Days after the submission of such Expenses for payment. (7) in the case of a termination by the Company pursuant to Section 5.9(c) and Section 7.1(c)(ii), the Regular Termination Fee and the Special Termination Fee will be paid to Parent within one (1) Business Day after termination of this Agreement and the Expenses of Parent and Merger Sub shall ~~fail~~ be paid promptly and in no event later than five (5) Business Days after the submission of such Expenses for payment. (8) in the case of a termination by the Company pursuant to Section 7.1 (c)(iv), the Regular Termination Fee will be paid to the Company in twelve equal monthly installments, beginning on the fifth (5th) Business Day after termination of this Agreement, plus interest on the unpaid balance at a simple rate of interest of 6% per year, beginning on the fifth (5th) Business Day after termination of this Agreement and the Expenses of the Company shall be paid promptly and in no event later than five Business Days after the submission of such Expenses for payment. (g) If either party fails to pay to (or reimburse) the other party any fee or expense due hereunder (including any Termination Fee), ~~or the Company or BioSante~~ such party shall ~~fail to~~ pay ~~any Expenses, when due, the term “Expenses” shall be deemed to include~~ the costs and expenses ~~actually incurred or accrued by BioSante or the Company, as the case may be,~~ (including legal fees and ~~expenses of counsel~~expenses) in connection with any action, including the ~~collection under and enforcement~~ filing of ~~this Section 9.03. (e) BioSante agrees that if~~ any lawsuit or other legal action, taken to collect payment, together with interest on the ~~Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after~~ amount of any unpaid fee and/or expense at the publicly announced prime rate of Bank of America from the date of such ~~termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect~~ fee was required to ~~(and subsequently consummates) a debt or equity financing transaction that results in net proceeds~~ be paid to the ~~Company equal to at least 85% of the Target Net Cash applicable on the earlier of (i) the~~ date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available fundsit is paid.

Appears in 1 contract

Samples: Merger Agreement (Sunlink Health Systems Inc)

Payment of Certain Fees and Expenses. (a) Except as set forth below in this Section ~~9.03~~12.1, ~~all Expenses incurred in connection with this~~ Parent and the Company shall pay its own expenses that are incidental to negotiation, preparation, execution, delivery of the Transaction Documents and the Closing whether or not the Agreement and the transactions contemplated ~~by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger or any other transaction is~~ hereby are actually consummated. “Expenses”, as used in this Agreement, shall include all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Registration Statement and the Joint Proxy Statement, the solicitation of the Company Stockholder Approval or the BioSante Stockholder Approval and all other matters related to the closing of the Merger and the other transactions contemplated by this Agreement. (b) ~~The Company agrees that: (i) if BioSante shall terminate this~~ If the Agreement is terminated by Parent pursuant to Section ~~9.01(c)(ii~~13.1 because (a) any Key Stockholder shall have failed to vote his shares of the Company Common Stock in favor of the Merger at the Stockholders? Meeting or ~~Section 9.01(c)(iii~~(b) ~~and within twelve months after the date of such termination~~ the Company enters into a ~~definitive acquisition agreement (~~transaction as a result of which any entity other than ~~a confidentiality agreement) with respect to (and subsequently consummates),~~ Parent or ~~consummates a transaction contemplated by, an~~ Acquisition ~~Proposal (changing~~ Sub becomes the ~~20% amount referred to in the definition~~ holder directly or indirectly of ~~“Acquisition Proposal” to 50% for purposes~~ securities of ~~this Section 9.03(b(i)); or (ii) if~~ the Company ~~shall terminate this Agreement pursuant to Section 9.01(d)(ii); or (iii) if (A)(x) BioSante~~ having 30% or ~~the Company shall terminate this Agreement pursuant to Section 9.01(b)(i), and (y) the failure~~ more of the ~~Effective Time to occur on~~ ownership or ~~prior to~~ voting power of the ~~Termination Date is not primarily attributable to any action or inaction by~~Company, or any event, occurrence, development, change or effect related to, BioSante or any of its subsidiaries, whether or not in compliance with or in violation of this Agreement (including, but not limited to, unresolved SEC comments on the Registration Statement related to BioSante), (B) prior to the time of such termination an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such termination, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates a transaction contemplated by, an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iii)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iii)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iii)(B)); (iv) if (A) BioSante or the Company shall terminate this Agreement pursuant to Section 9.01(b)(iii)(A), (B) prior to the time of such failure to so adopt this Agreement an Acquisition Proposal shall have been publicly made known or publicly announced with respect to the Company and not publicly withdrawn at least five (5) business days prior to such failure, and (C) within twelve months after the date of such termination the Company enters into a definitive acquisition agreement (other than a confidentiality agreement) with respect to (and subsequently consummates), or consummates, a transaction contemplated by an Acquisition Proposal (changing the 20% amount referred to in the definition of “Acquisition Proposal” to 50% for purposes of this Section 9.03(b)(iv)(C), and whether or not such Acquisition Proposal referred to in this Section 9.03(b)(iv)(C) is the same as the original Acquisition Proposal referred to in Section 9.03(b)(iv)(B)); then the Company shall pay to ~~BioSante~~ Parent a termination fee in the amount of $750,000 (Athe "Alternate Proposal Termination Fee?) ~~prior to or concurrently with~~ within 15 days of such termination. In the ~~termination of~~ event Parent terminates this Agreement ~~if payable pursuant to Section 9.03(b)(ii)~~because of a material misrepresentation by the Company, ~~or (B) promptly (but~~ the Company shall pay Parent a termination fee in ~~any event no later than one (1) business day) after~~ the consummation of the transactions contemplated by such definitive acquisition agreement or the consummation of such Acquisition Proposal with respect to the termination of this Agreement if payable pursuant to Section 9.03(b)(i), Section 9.03(b)(iii) or Section 9.03(b)(iv), a fee amount of $~~1,000,000~~ 50,000 (the “"Expense Termination Fee”") (the "Alternate Proposal Termination Fee" and the "Expense Termination Fee" are referred to herein collectively as the "Termination Fee")~~, minus any Expenses paid pursuant to Section 9.03(c) hereof, which amount shall be payable in immediately available funds~~. (c) The ~~Company agrees that if BioSante~~ Termination Fee shall ~~terminate this~~ constitute liquidated damages to Parent in respect of all losses, liabilities, damages and expenses suffered or incurred by Parent by reason of the termination of the Agreement ~~pursuant to Section 9.01(c)(i), Section 9.01(c)(ii)~~ or ~~Section 9.01(c)(iii) then~~ the failure of the Company ~~shall~~to close the Merger under the circumstances referred to in Section 12.1(b) and shall be in lieu of any other remedy or relief otherwise available to Parent by reason thereof. The parties hereto acknowledge that it would be impracticable to ascertain the amount of all losses, ~~whether~~ liabilities, damages and expenses (including all legal fees and expenses relating to the Merger) that would be suffered or ~~not any payment is made pursuant~~ incurred by Parent under the circumstances described in Section 12.1(b) and that the amount of the Termination Fee represents a fair and reasonable estimate of such losses, liabilities, damages and expenses and provides a reasonable and certain amount to ~~Section 9.03(b), reimburse BioSante for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements~~ compensate Parent therefor). BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(i), Section 9.01(d)(iii) or Section 9.01(d)(iv) then BioSante shall reimburse the Company for all of its Expenses actually incurred, up to a maximum of $500,000 (not later than three business days after submission of statements therefor). (d) ~~The Company and BioSante acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement.~~ In the event that the ~~Company or BioSante~~ Closing occurs, each Key Stockholder shall ~~fail to pay~~ indemnify and hold the ~~Termination Fee, or~~ Parent and the ~~Company or BioSante shall fail to pay any Expenses, when due, the term “Expenses” shall be deemed to include the costs~~ Surviving Corporation harmless from all legal and ~~expenses actually~~ professional fees incurred ~~or accrued~~ by ~~BioSante or the Company, as the case may be, (including fees and expenses of counsel)~~ such Key Stockholder in connection with the ~~collection under~~ negotiation, preparation, execution and enforcement of this Section 9.03. (e) BioSante agrees that if the Company shall terminate this Agreement pursuant to Section 9.01(d)(iii) or Section 9.01(d)(iv) and within twelve months after the date of such termination BioSante enters into a definitive agreement (other than a confidentiality agreement) with respect to (and subsequently consummates) a debt or equity financing transaction that results in net proceeds to the Company equal to at least 85% delivery of the ~~Target Net Cash applicable on~~ Agreement and the ~~earlier of (i)~~ other Transaction Documents and the date that the BioSante Board makes a Change in BioSante Recommendation, or (ii) the date that the Company terminates this Agreement pursuant to Section 9.01(d)(iv); then BioSante shall pay the Company promptly (but in any event no later than one (1) business day) after the consummation of the applicable debt or equity financing transaction, a fee in an amount equal to $1,000,000, minus any Expenses paid pursuant to Section 9.03(c), which amount shall be payable in immediately available fundsClosing.

Appears in 1 contract

Samples: Merger Agreement (Micronetics Wireless Inc)

Common use of Payment of Certain Fees and Expenses Clause in Contracts