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Common use of Payments; Default Clause in Contracts

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 8.3 are an integral part of the Transactions, (ii) each of the Parent Termination Fee and the Company Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if either Party fails to promptly pay any amount due pursuant to Section 8.3(b) or Section 8.3(c) and, in order to obtain such payment, the recipient Party commences a Legal Proceeding that results in a judgment against the non-paying Party for the amount set forth in Section 8.3 or any portion thereof, the non-paying Party shall pay to the recipient Party the recipient Party’s reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Datto Holding Corp.), Merger Agreement (Datto Holding Corp.)

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Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 8.3 9.3 are an integral part of the TransactionsTransaction, (ii) each and that the damages resulting from the termination of the Parent Termination Fee and this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but is rather liquidated damages, and in a reasonable amount that will compensate the Company or Parent, as the case may be, Party receiving such amount in the circumstances in which such fee it is payable, payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this AgreementTransaction. Accordingly, if either Party the Company fails to promptly pay any amount due pursuant to Section 8.3(b) or Section 8.3(c9.3(b) and, in order to obtain such payment, the recipient Party Purchaser commences a Legal Proceeding that results in a judgment against the non-paying Party Company for the amount set forth in Section 8.3 9.3(b) or any portion thereof, the non-paying Party shall Company will pay to the recipient Party the recipient Party’s reasonable and documented Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable LawLaw (the “Recovery Costs”).

Appears in 2 contracts

Samples: Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.), Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.)

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 8.3 ‎8.3 are an integral part of the Transactions, (ii) Merger and that each of the Parent Company Termination Fee and the Company Parent Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company and the Company Related Parties or ParentParent and the Parent Related Parties, as the case may be, in the circumstances in which such fee is payableapplicable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyAgreement, which amount amounts would otherwise be impossible to calculate with precision precision, and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if either Party the Company fails to promptly pay any amount due pursuant to Section 8.3(b‎8.3(b) or Parent fails to promptly pay any amounts due pursuant to Section 8.3(c‎8.3(c) and, in order to obtain such payment, Parent, on the recipient Party one hand, or the Company, on the other hand, commences a Legal Proceeding that results in a judgment against the non-paying Party Company for the amount set forth in Section 8.3 ‎8.3(b) or any portion thereof or a judgment against Parent for the amount set forth in Section ‎8.3(c) or any portion thereof, as applicable, the non-paying Party Company shall pay to Parent or Parent shall pay to the recipient Party Company, as the recipient Party’s reasonable and documented case may be, (a) its out-of-pocket costs and expenses (including attorneys’ fees) in connection with such Legal Proceeding, together Proceeding and (b) with interest on such amount or portion thereof at an annual rate equal to 2% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law; provided, that in no event shall such costs, expenses and interest set forth in the foregoing clauses (a) and (b) exceed $4,000,000 in the aggregate.

Appears in 1 contract

Samples: Merger Agreement (Diversey Holdings, Ltd.)

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 8.3 are an integral part of the Transactions, (ii) Merger and that each of the Parent Company Termination Fee and the Company Parent Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company and the Company Related Parties or ParentParent and the Parent Related Parties, as the case may be, in the circumstances in which such fee is payableapplicable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyAgreement, which amount amounts would otherwise be impossible to calculate with precision precision, and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if either Party fails to promptly pay any amount due pursuant to Section 8.3(b) Parent, on the one hand, or Section 8.3(c) andthe Company, in order to obtain such paymenton the other hand, the recipient Party commences a Legal Proceeding that results in a judgment against seeks to obtain payment of the non-paying Party for Company Termination Fee, the amount set forth in Section 8.3 Parent Expenses or any portion thereofParent Termination Fee, as applicable, the non-paying Party prevailing party shall pay to the recipient Party the recipient Party’s reasonable and documented prevailing party its out-of-pocket costs and expenses (including attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Del Frisco's Restaurant Group, Inc.)

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 8.3 are an integral part of the Transactions, (ii) each of the Company Termination Fee and the Parent Termination Fee and the Company Termination Fee is are not a penalty, but is are liquidated damages, in a reasonable amount that will compensate Parent or the Company or ParentCompany, as the case may beapplicable, in the circumstances in which such fee is amounts are payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount amounts would otherwise be impossible to calculate with precision precision, and (iii) without these agreements, the Parties neither Party would not enter into this Agreement. Accordingly, if either Party the Company or Parent fails to promptly pay any amount due pursuant to Section 8.3(b) or Section 8.3(c) 8.3 and, in order to obtain such payment, Parent or the recipient Party Company, as applicable, commences a Legal Proceeding that results in a judgment against the non-paying other Party for the amount set forth in Section 8.3 or any portion thereof, the non-paying Party required to make any such payment under Section 8.3 shall pay to the recipient Party the recipient other Party, such Party’s reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable LawLaw (collectively, the “Enforcement Expenses“).

Appears in 1 contract

Samples: Merger Agreement (Kaleyra, Inc.)

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Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 8.3 are an integral part of the TransactionsMerger, (ii) each of the Parent Termination Fee and the Company Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if either Party fails to promptly pay any amount due pursuant to Section 8.3(b), Section 8.3(c) or Section 8.3(c8.3(d) and, in order to obtain such payment, the recipient Party commences a Legal Proceeding that results in a judgment against the non-paying Party for the amount set forth in Section 8.3 8.3(b), Section 8.3(c) or Section 8.3(d) or any portion thereof, the non-paying Party shall pay to the recipient Party the recipient Party’s reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Quotient Technology Inc.)

Payments; Default. The Each of the Parties acknowledge acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the Transactions, (ii) each of the Parent Company Termination Fee and the Company Parent Termination Fee is not a penalty, but is liquidated damages, damages in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyTransactions, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if either Party the Company or Parent, as the case may be, fails to promptly timely pay any amount due pursuant to this Section 8.3(b) or Section 8.3(c) 8.3 and, in order to obtain such payment, either Parent or the recipient Party Company, as the case may be, commences a Legal Proceeding suit that results in a judgment against the non-paying Party other party for the payment of any amount set forth in this Section 8.3 or any portion thereof8.3, the non-such paying Party party shall pay to the recipient Party the recipient Party’s reasonable and documented out-of-pocket other party its costs and expenses (including attorneys’ fees) in connection with such Legal Proceedingsuit, together with interest on such amount or portion thereof at the annual rate of 2% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a such lesser rate that as is the maximum permitted by applicable LawLaw (collectively, “Enforcement Expenses”); provided that, in no event shall the Enforcement Expenses payable by the Company or the Parent Entities exceed $10,000,000 in the aggregate in either case.

Appears in 1 contract

Samples: Merger Agreement (Atlas Technical Consultants, Inc.)

Payments; Default. The Parties acknowledge and agree that (i) the agreements contained in this Section 8.3 are an integral part of the Transactions, (ii) each of the Parent Termination Fee and the Company Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebythat, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if either Party the Company fails to promptly pay any amount due pursuant to Section 8.3(b) or Parent fails to promptly pay any amount due pursuant to Section 8.3(c) (any such amount due, a “Termination Payment”) and, in order to obtain such payment, the recipient other Party commences a Legal Proceeding that results in a judgment against the non-paying such Party for the amount set forth in Section 8.3 Termination Payment or any portion thereof, then the non-paying Party shall that has failed to pay the Termination Payment will pay or cause to be paid to the recipient other Party the recipient Party’s reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) of the other Party in connection with such Legal Proceeding, together with interest on such amount or portion thereof at an annual rate equal to the prime rate (as published in The Wall Street Journal in effect or other authoritative source on the date that such payment or portion thereof was required to be made made) through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable LawLaw (collectively, “Enforcement Expenses”).

Appears in 1 contract

Samples: Merger Agreement (Transphorm, Inc.)

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