Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating Party to the other Parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been made.
Appears in 2 contracts
Samples: Partnership Interests Purchase Agreement, Partnership Interests Purchase Agreement (Black Hills Corp /Sd/)
Procedure and Effect of Termination. In the event of the termination of this Agreement and the abandonment of the Transactions pursuant to Section 8.1 hereof, written notice thereof shall be given by the party so terminating to the other party to this Agreement, and this Agreement shall terminate and the Transactions shall be abandoned without further action by CCE or TCCC; provided, however, that:
(a) If this Agreement is terminated and the Transactions are abandoned as described in this Section 8.2, this Agreement shall become null and void and of no further force or effect, except for the obligations provided for in Section 6.13, this Section 8.2 and Article X hereof, the confidentiality provision contained in Section 6.8(b) hereof and the Confidentiality Agreement referred to in such Section, each of which shall survive any such termination of this Agreement without limitation.
(b) If (i) TCCC or CCE terminates this Agreement due to the failure to satisfy any of the conditions set forth in Section 7.1(d); (ii) all other conditions set forth in Section 7.1 and in Section 7.3 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions); and (iii) neither CCE nor Splitco have breached in any material respect any of their covenants set forth in this Agreement, then TCCC shall, as promptly as reasonably practicable (and in any event within three (3) Business Days following such termination), pay to CCE, by wire transfer of immediately available funds, an amount equal to twice the amount of the reasonable documented out-of-pocket expenses actually incurred and paid by CCE or any of its Subsidiaries in connection with negotiation of this Agreement, the performance by CCE or Splitco of their obligations hereunder and the consummation of the Transactions, not to exceed $100,000,000 (the “CCE Expense Reimbursement”).
(c) If TCCC terminates this Agreement pursuant to Section 8.1(f) at a time when there is a Change in CCE Recommendation, then CCE shall, as promptly as reasonably practicable (and in any event within three (3) Business Days following such termination), pay to TCCC, by wire transfer of immediately available funds, an amount equal to $200,000,000 (the “Termination Fee”).
(d) In the event that (A) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 10.18.1(b) or Section 8.1(g), written notice thereof will forthwith be given by the terminating Party to the other Parties and this Agreement an Acquisition Proposal shall have been publicly announced, (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1B) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is validly terminated pursuant to Section 10.1(e8.1(b) or Section 10.1(g8.1(g), (C) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the termination of this Agreement pursuant to Section 8.1(b) or Section 8.1(g), neither TCCC nor Merger AgreementSub has breached any of its material obligations under or in connection with this Agreement in any material respect, pay into a joint bank account in the names of Buyer and Parent (D) within 365 calendar days following the termination fee required to be paid of this Agreement pursuant to Section 8.1(b) or Section 8.1(g), an Acquisition Proposal is consummated, then CCE shall pay to TCCC the terms of the Merger AgreementTermination Fee, by wire transfer of same day funds. If this Agreement is terminated pursuant immediately available funds to Section 10.1(g) upon an account or following termination accounts designated in writing by TCCC, within two Business Days after the consummation of the Merger Agreement under circumstances where Parent is required transaction contemplated by such Acquisition Proposal. For purposes of this provision, each reference to pay Seller the Parent Termination Fee (as defined “15%” in the Merger Agreementdefinition of Acquisition Proposal shall be deemed to be a reference to “50%.”
(e) pursuant to the provisions Each of Section 9.5(c) of the Merger Agreement, Parent will, following such termination TCCC and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge CCE acknowledges that the agreements contained in this Section 10.2 8.2(b), Section 8.2(c) and Section 8.2(d) are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Buyer CCE, TCCC and Merger Sub would not enter into this Agreement; accordingly. Accordingly, if Seller or Parent CCE fails promptly to pay promptly the any amount due to TCCC, or TCCC fails promptly to pay any amount due to CCE, pursuant to this Section 10.28.2(b), andSection 8.2(c) and Section 8.2(d), in order to obtain then such payment, Buyer commences a suit which results in a judgment against Seller non-paying party shall also pay any costs and expenses incurred by CCE or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller TCCC or ParentMerger Sub, as applicable, will pay in connection with a legal action to Buyer its costs enforce this Agreement that results in a final judgment against CCE or TCCC, as applicable, for such amount.
(f) In the event that TCCC shall receive the Termination Fee, the receipt of such fee shall be deemed to be liquidated damages for any and expenses (including attorneys’ fees) all losses or damages suffered or incurred by TCCC, Merger Sub, any of their respective Affiliates or any other Person in connection with this suitAgreement (and the termination hereof), together with interest on the amount transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of TCCC, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any other claim, action or proceeding against CCE or any of its Affiliates arising out of this Agreement, any of the fee at transactions contemplated hereby or any matters forming the Prime Rate basis for such termination.
(g) For the avoidance of doubt, except as expressly provided in effect Section 8.2(f) any termination of this Agreement shall not be deemed to release and shall not relieve any party hereto from any liability for any fraud occurring on the date the payment should have been madeor prior to such termination.
Appears in 2 contracts
Samples: Business Separation and Merger Agreement (Coca-Cola Enterprises, Inc.), Business Separation and Merger Agreement (Coca Cola Enterprises Inc)
Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating Party to the other Parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Partnership Interests Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee, which shall be in an amount (subject to the limitations thereon as set forth in the definition of Termination Fee set forth herein) reasonably agreed upon by Buyer and Parent. Seller, Limited Partner Seller and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been made.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aquila Inc), Asset Purchase Agreement (Black Hills Corp /Sd/)
Procedure and Effect of Termination. In (a) Subject to Section 7.2(d), in the event of the termination of this Agreement pursuant to Section 10.17.1, written notice thereof will forthwith be given by (i) this Agreement, except for the terminating Party to the other Parties provisions of Section 5.2(b), all of Article IX and this Agreement (other than as set forth Section 7.2, shall become void and have no effect, without any Liability on the part of any party hereto or its Affiliates; provided, however, that nothing in this Section 10.27.2 shall relieve any party for liability for any breach of this Agreement and (ii) all filings, Section 10.4 applications and Section 11.1) will terminate and become void and other submissions made pursuant to this Agreement, to the extent practicable, shall be withdrawn from the agency or other Person to which they were made or appropriately amended to reflect the termination of no effect, and the transactions contemplated hereby will be abandoned without further action by hereby. Notwithstanding the foregoing, (x) nothing in this Section 7.2 shall relieve any Party, whereupon the liabilities party hereto of the Parties hereunder (and Liability for a material breach of any of their respective Representatives) will terminate, except as otherwise expressly provided in its obligations under this Agreement; provided, and (y) if it shall be judicially determined that such termination will not relieve any Party from any liability of this Agreement was caused by an intentional breach of this Agreement, then, in addition to other remedies at law or equity for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase party so found to have intentionally breached this Agreement or shall indemnify and hold harmless the Merger other party hereto for its respective out-of-pocket costs, including the fees and expenses of their counsel, accountants, financial advisors and other experts and advisors, as well as fees and expenses incident to the negotiation, preparation and execution of this Agreement which is and related documentation.
(ib) materialIn the event of the termination of this Agreement, except as set forth in Section 7.2(c), upon such termination, Seller shall pay to Buyer the Deposit, together with the interest thereon from the date hereof to the date of payment at a floating rate equal to the NAT’L AVG of the “Money market xxx. yield" as published in the Wall Street Journal on the first business day of each applicable month and based on a year of 365 days and the number of days elapsed in each month since the date hereof.
(iic) willful or knowing. If In the event that this Agreement is terminated pursuant to Section 10.1(e7.1(b) or and at such time, all conditions in Article VI have been satisfied, except for the condition set forth in Section 10.1(g6.3(c) and other than those conditions that by their nature would only be satisfied at Closing, upon or following termination of the Merger Agreement under circumstances where such termination, Seller is required to pay Parent the Company Termination Fee shall retain one hundred percent (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b100%) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeDeposit.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CMS Energy Corp), Purchase and Sale Agreement (Consumers Energy Co)
Procedure and Effect of Termination. In the event of termination of this Agreement and abandonment of the transactions contemplated hereby by either or both of the parties pursuant to Section 10.19.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties party and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will shall be abandoned abandoned, without further action by any Party, whereupon the liabilities either of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingparties hereto. If this Agreement is terminated as provided herein:
(a) upon request therefor, each party will redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same;
(b) each party hereto will use its best efforts to prevent disclosure to third persons of all information received by either party with respect to the business of the other party or its subsidiaries (other than information which is a matter of public knowledge or which has heretofore been or is hereafter published in any publication for public distribution or filed as public information with any Governmental Entity) except (i) as may be required by Law; and (ii) as is permitted by this Agreement;
(c) neither party hereto shall have any liability or further obligation to the other party to this Agreement pursuant to this Agreement except as stated in this Section 9.2 and in Sections 5.3(b) and 5.4, provided that nothing herein shall relieve any party from liability for its willful breach of this Agreement;
(d) upon any termination of this Agreement other than pursuant to Section 10.1(e9.1(d) and upon request by the Buyer, the Seller shall promptly reimburse the Buyer for its out-of-pocket cash expenses (including, without limitation, fees and expenses of accountants, counsel, investment bankers and consultants and all travel-related expenses) incurred in connection with this Agreement and the transactions contemplated hereby (whether incurred prior to or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant subsequent to the provisions execution of Section 9.5(bthis Agreement); provided that the Seller shall in no event be responsible for more than $2 million in respect of this paragraph (d); and
(e) of if after the Merger Agreement, Seller will, following date hereof and prior to Shareholder Approval a Specified Dexter Acquisition Proposal is publicly disclosed (or any previously made Dexter Acquisition Proposal is renewed in such termination a manner as to constitute a Specified Dexter Acquisition Proposal) and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is subsequently terminated pursuant to Section 10.1(g9.1(b) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement9.1(e), Parent will, and if within 12 months following such termination and at the time required for payment Seller either enters into a definitive agreement providing for, or consummates, a Dexter Acquisition Transaction as a result of which shareholders of the Parent Termination Fee Seller would be entitled to receive (as defined in the Merger Agreementcase of a definitive agreement), or receive, aggregate average consideration with a fair market value per share exceeding $45 (appropriately adjusted for stock splits, stock dividends, recapitalizations or similar transactions and taking into account any extraordinary dividends or amounts paid in issuer tender offers or other extraordinary amounts received with respect to Seller shares after the date hereof), then within 2 business days following such event the Seller shall pay the Buyer the Termination Fee. Sellera fee of $8 million, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller less any amounts paid or Parent fails to pay promptly the amount due payable pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses paragraph (including attorneys’ feesd) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeabove.
Appears in 1 contract
Procedure and Effect of Termination. In the event of --------------------------------------- termination of this Agreement and abandonment of the transactions contemplated hereby by the parties hereto pursuant to Section 10.19.1 hereof, written notice thereof will forthwith shall be given by the party so terminating Party to the other Parties parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall forthwith terminate and shall become null and void and of no further effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (Holdings and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingParent. If this Agreement is terminated pursuant to Section 10.1(e9.1 hereof:
(a) or Section 10.1(g) upon or following termination each party shall redeliver all documents, work papers and other materials of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant other parties relating to the provisions of Section 9.5(b) of transactions contemplated hereby, whether so obtained before or after the Merger Agreementexecution hereof, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of party furnishing the Merger Agreementsame, and all confidential information received by wire transfer of same day funds. If this any party hereto with respect to the other party shall be treated in accordance with the Confidentiality Agreement is terminated pursuant to Section 10.1(g6.2(b) upon or following termination hereof;
(b) all filings, applications and other submissions made pursuant hereto shall, at the option of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant Holdings, and to the provisions of Section 9.5(cextent practicable, be withdrawn from the agency or other Person to which made; and
(c) of there shall be no liability or obligation hereunder on the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this AgreementSellers, and thatthe Company, without these agreementsHoldings, Buyer would not enter into this Agreement; accordinglyParent or Merger Sub or any of their respective officers, if Seller managers, directors, employees, partners, Affiliates, controlling Persons, agents, advisors or Parent fails to pay promptly the amount due pursuant to this Section 10.2Representatives, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller except that (i) Holdings or Parent, as the case may be, for may have liability to the fee to be paid other party if the basis of termination is a willful, material breach by such Party as set forth in this Section 10.2, Seller Holdings or Parent, as applicablethe case may be, will pay of one or more of the provisions of this Agreement, including but not limited to Buyer its costs liability for the non-breaching party's expenses related to the transaction including fees and expenses of counsel, accountants or other professionals retained for the purpose of considering the transaction, (including attorneys’ feesii) Parent shall reimburse Holdings for the cost of conducting the Audit and (iii) that the obligations provided for in connection with this suitSection 6.2(b), together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeSection 10.2 and, except as modified by clause (i), Section 11.5 hereof shall survive any such termination.
Appears in 1 contract
Samples: Merger Agreement (Amrep Corp.)
Procedure and Effect of Termination. (a) In the event of termination of this Agreement by a party hereto entitled to terminate this Agreement pursuant to Section 10.19.1, written notice thereof will shall forthwith be given by the terminating Party party to the other Parties party hereto, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall thereupon terminate and become void and of have no effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminateparties hereto, except as otherwise expressly provided in that the provisions of Sections 5.1(b), 9.2(b), and Article X shall survive the termination of this Agreement; provided, however, that such termination will shall not relieve any Party from party hereto of any liability for damages to any other Party resulting from any prior willful breach of any covenant or agreement of such party contained in this Agreement, .
(b) The Company shall pay to Parent a fee equal to $1,500,000 (the Asset Purchase Agreement or the Merger Agreement which is “Termination Fee”) by wire transfer of immediately available funds (i) material, and (ii) willful or knowing. If in the event that this Agreement is terminated pursuant to Section 10.1(e9.1 (e) or Section 10.1(g(ii) upon in the event that Parent or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If terminates this Agreement is terminated pursuant to Section 10.1(g9.1(d) upon or following and any Person shall have made an Acquisition Proposal (except that solely for purposes of this usage, all references in the definition of “Acquisition Proposal” to “10%” shall be deemed to be references to 25%) after the date of this Agreement which proposal has been publicly disclosed and not withdrawn prior to the termination of the Merger this Agreement under circumstances where Parent is required by any party pursuant to pay Seller the Parent Section 9.1(d). The Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following shall be payable no later than five business days after such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Feetermination. Seller, Limited Partner and Parent acknowledge The Company acknowledges that the agreements contained in this Section 10.2 9.2(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Buyer the Parent and Merger Sub would not enter into this Agreement; accordingly. The Company and Parent, if Seller or Parent fails on behalf of themselves and their Affiliates, agree that any payment required to pay promptly the amount due be made pursuant to this Section 10.29.2(b) shall be in full satisfaction of any expense reimbursement claims and shall represent liquidated damages and not a penalty, and, in order to obtain such payment, Buyer commences and shall be the exclusive remedy of the Parent and its Affiliates for any loss suffered as a suit which results in a judgment against Seller or Parent, as result of the case may be, for failure of the fee Merger to be paid by such Party as set forth consummated and upon payment in accordance herewith neither the Company nor its Affiliates shall have any further liability or obligation relating to or arising out of this Section 10.2, Seller Agreement or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madetransactions contemplated herein.
Appears in 1 contract
Samples: Merger Agreement (Goldleaf Financial Solutions Inc.)
Procedure and Effect of Termination. In the event of termination of this Agreement by a party pursuant to Section 10.1, 10.1 written notice thereof will forthwith shall be given by the terminating Party to the other Parties parties specifying the provision of Section 10.1 pursuant to which such termination is made, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 7.6 (Confidentiality) and Section 11.111 (Miscellaneous), other than Section 11.6 (Further Assurances)) will shall terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned force or effect without further action by any Party, whereupon the liabilities of the Parties hereunder (and liability of any party (or any stockholder, director, officer, employee, agent, consultant or representative of their respective Representativessuch party) will terminate, except as otherwise expressly provided in this Agreementto the other party hereto; provided, however, that if such termination will not relieve any Party shall result from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and the willful failure of any party hereto to fulfill a condition to the performance of the material obligations of the other parties hereto or (ii) the willful failure of any party hereto to perform a material covenant applicable to it, such party shall be fully liable for any and all liabilities and damages incurred or knowingsuffered by the other party as a result of such failure; provided, further, that:
10.2.1. If if Buyer terminates this Agreement is terminated pursuant to Section 10.1(e) 10.1.5 or Section 10.1(g10.1.7, within ten (10) upon or following termination Business Days after the date of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreementsuch termination, Seller willshall pay the amount of One Million Dollars (US$1,000,000) (the “Termination Fee”) to, following such termination and at the time required under Section 9.5(b) of the Merger Agreementor as directed by, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated immediately available funds to one or more accounts specified by Buyer in writing, which Termination Fee shall be separate from any Initial Payment Reimbursement which may be owed pursuant to Section 10.1(g10.3; and
10.2.2. if Seller terminates this Agreement pursuant to Section 10.1.4, within ten (10) upon or following termination Business Days after the date of such termination, Buyer shall pay the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (to, or as defined directed by, Seller by wire transfer of immediately available funds to one or more accounts specified by Seller in the Merger Agreement) writing. For purposes of clarity, any Termination Fee which may be owed by Buyer to Seller pursuant to this Section 10.2.2, shall be separate from and in addition to any rights which Seller may have to retain the provisions of Initial Payment, as described in Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee10.3 below.
10.2.3. Seller, Limited Partner and Parent acknowledge Each party acknowledges that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails . In the event that either party shall fail to pay promptly the amount due pursuant to this Section 10.2Termination Fee when due, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as party shall reimburse the case may be, other party for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its all reasonable and documented costs and expenses actually incurred or accrued by or on behalf of such party (including attorneys’ feesreasonable fees and expenses of counsel) in connection with the collection under and enforcement of this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeSection 10.2.3.
Appears in 1 contract
Procedure and Effect of Termination. In the event of the termination of this Agreement pursuant to Section 10.1and the abandonment of the Contemplated Transactions, written notice thereof will forthwith shall be given by the a terminating Party party to the other Parties parties, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will Contemplated Transactions shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingparties. If this Agreement is terminated pursuant to Section 10.1(e10.1:
(a) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required Buyer shall promptly cause to pay Parent be returned to the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination or destroy all documents and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) information obtained in connection with this suit, together Agreement and the Contemplated Transactions and all documents and information obtained in connection with interest on the amount Buyer’s investigation of the fee at Company from the Prime Rate Company or its representatives, including any copies made by or supplied to Buyer or any of Buyer’s agents of any such documents or information, and Buyer shall cause one of its authorized officers to deliver to Seller promptly (and in effect on any event within five (5) Business Days of the date termination of this Agreement) a notice stating that Buyer has complied with all of the payment should requirements of this Section 10.2(a).
(b) No party hereto shall have been madeany obligation or liability to the other parties hereto, except that the parties hereto shall remain bound by the provisions of this Section 10.2 and Section 5.9, Section 5.11 and Article XI and by the provisions of the Confidentiality Agreement; provided, that nothing herein shall relieve a defaulting or breaching party from any liability or damages arising out of its breach of any covenant or agreement in this Agreement (including, without limitation, in the case of Buyer, a breach of any of its obligations under Section 5.3 by the dates specified therein). In addition to any remedy in law or in equity to which Seller may be entitled in the event of a breach of this Agreement by Buyer (including diminution in value), Buyer expressly acknowledges and agrees that in the event of a breach of any of its obligations under Section 5.3 by the dates specified therein, Buyer shall be required to reimburse Seller and the Company for all costs and expenses incurred in connection with (or in anticipation of) the Contemplated Transactions, by the dates specified therein, including the costs and expenses of Seller’s and the Company’s attorneys, accountants, investment bankers and other advisors.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CBS Outdoor Americas Inc.)
Procedure and Effect of Termination. (a) In the event of termination of this Agreement by a party hereto entitled to terminate this Agreement pursuant to Section 10.19.1, written notice thereof will shall forthwith be given by the terminating Party party to the other Parties party hereto, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall thereupon terminate and become void and of have no effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminateparties hereto, except as otherwise expressly provided in that the provisions of Sections 5.1(b), 9.2(b), and Article X shall survive the termination of this Agreement; provided, however, that such termination will shall not relieve any Party from party hereto of any liability for damages to any other Party resulting from any prior willful breach of any covenant or agreement of such party contained in this Agreement, .
(b) The Company shall pay to Parent a fee equal to $1,500,000 (the Asset Purchase Agreement or the Merger Agreement which is "Termination Fee") by wire transfer of immediately available funds (i) material, and (ii) willful or knowing. If in the event that this Agreement is terminated pursuant to Section 10.1(e9.1 (e) or Section 10.1(g(ii) upon in the event that Parent or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If terminates this Agreement is terminated pursuant to Section 10.1(g9.1(d) upon or following and any Person shall have made an Acquisition Proposal (except that solely for purposes of this usage, all references in the definition of "Acquisition Proposal" to "10%" shall be deemed to be references to 25%) after the date of this Agreement which proposal has been publicly disclosed and not withdrawn prior to the termination of the Merger this Agreement under circumstances where Parent is required by any party pursuant to pay Seller the Parent Section 9.1(d). The Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following shall be payable no later than five business days after such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Feetermination. Seller, Limited Partner and Parent acknowledge The Company acknowledges that the agreements contained in this Section 10.2 9.2(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Buyer the Parent and Merger Sub would not enter into this Agreement; accordingly. The Company and Parent, if Seller or Parent fails on behalf of themselves and their Affiliates, agree that any payment required to pay promptly the amount due be made pursuant to this Section 10.29.2(b) shall be in full satisfaction of any expense reimbursement claims and shall represent liquidated damages and not a penalty, and, in order to obtain such payment, Buyer commences and shall be the exclusive remedy of the Parent and its Affiliates for any loss suffered as a suit which results in a judgment against Seller or Parent, as result of the case may be, for failure of the fee Merger to be paid by such Party as set forth consummated and upon payment in accordance herewith neither the Company nor its Affiliates shall have any further liability or obligation relating to or arising out of this Section 10.2, Seller Agreement or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madetransactions contemplated herein.
Appears in 1 contract
Procedure and Effect of Termination. (a) In the event of the termination of this Agreement pursuant to Section 10.112.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties Party, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall thereupon terminate and become void and of have no effect, no Party shall have liability to any other Party in respect of this Agreement and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminateParties, except as otherwise expressly provided in that the provisions of this Section 12.2 and Article XIII shall survive the termination of this Agreement; provided, that such termination will shall not relieve any Party from of any liability for damages to any other Party resulting from any prior willful breach of any covenant or agreement contained in this Agreement. If this Agreement shall be terminated, all filings, applications and other submissions made in accordance with this Agreement shall, to the Asset Purchase extent practicable, be withdrawn from the persons to which they were made.
(b) In the event that this Agreement or the Merger Agreement which is terminated:
(i) materialpursuant to Section 12.1(d) by DHC or pursuant to Section 12.1(c) by ACL Holdings, pursuant to Section 12.1(f), or pursuant to Section 12.1(g), then ACL Holdings and ACL shall pay DHC a fee of $3,000,000 less any Expense Reimbursement (the "Break-Fee"); or
(ii) willful pursuant to Section 12.1(e), then ACL Holdings and ACL shall pay to DHC a fee of $4,000,000 less any Expense Reimbursement (the "Superior Proposal Fee"); or
(iii) pursuant to Section 12.1(b) or knowing12.1(h) and, as applicable, (A) a transaction constituting a Superior Proposal is consummated within twelve (12) months following such termination, then ACL Holdings and ACL shall pay DHC the Superior Proposal Fee, or (B) a transaction constituting an Acquisition Proposal is consummated, then ACL Holdings and ACL shall pay DHC the Break-Fee. If Notwithstanding the foregoing sentence, neither ACL Holdings nor ACL shall be obligated to pay, and shall not pay, the Termination Amount to DHC if this Agreement is terminated pursuant to Section 10.1(e12.1 (i) as a direct or Section 10.1(gindirect consequence of a MAC Terrorist Event, (ii) upon or following termination as a result of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) failure of the Merger Agreementrepresentation and warranty contained in Section 3.19(b) to be true and correct as of any particular date, Seller will, following such termination and or (iii) if at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If that this Agreement is terminated pursuant to Section 10.1(gterminated, DHC is then in material breach of any representation, warranty, covenant or agreement contained in this Agreement.
(c) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination ACL Holdings and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent ACL acknowledge that the agreements contained in this Section 10.2 12.2 and Section 13.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer DHC would not enter into this Agreement; accordingly, if Seller ACL Holdings or Parent ACL fails promptly to pay promptly the amount any amounts due pursuant to this Section 10.212.2 or Section 13.5, and, in order to obtain such payment, Buyer DHC commences a suit which results in a judgment against Seller ACL Holdings or Parent, as the case may be, ACL for the fee to be paid by such Party as set forth in this Section 10.212.2 or the Expense Reimbursement set forth in Section 13.5, Seller ACL Holdings or Parent, as applicable, will ACL shall pay to Buyer DHC its costs and expenses (including attorneys’ fees' fees and expenses) in connection with this such suit, together with interest on the amount of the fee such amounts at the Prime Rate prime rate of Citibank, N.A. in effect on the date the such payment should have been was required to be made.
Appears in 1 contract
Samples: Recapitalization Agreement (American Commercial Lines LLC)
Procedure and Effect of Termination. (a) In the event of termination and abandonment of this Agreement the Merger by the Parent, the Purchaser or the Company pursuant to Section 10.19.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties others, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effectthe Merger shall be abandoned, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of parties hereto. The Purchaser agrees that any of their respective Representatives) will terminatetermination by the Parent shall be conclusively binding upon it, except as otherwise whether given expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement on its behalf or the Merger Agreement which is (i) materialnot, and (ii) willful or knowingthe Company shall have no further obligation with respect to it. If this Agreement is terminated as provided herein, no party hereto shall have any liability or further obligation to any other party to this Agreement; provided that any termination shall be without prejudice to the rights of any party hereto arising out of any grossly negligent or willful breach by any other party of any covenant or agreement contained in this Agreement, and provided, further, that the obligations set forth in Sections 9.2, 10.6 and 10.8 shall in any event survive any termination.
(b) In the event of a termination of this Agreement by Parent pursuant to Section 10.1(e9.1(g)(ii) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent by the Company Termination Fee (as defined in the Merger Agreement) pursuant to Section 9.1(f), then contemporaneously with such termination, the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, Company shall pay into a joint bank account in the names of Buyer and to Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant immediately available funds to Section 10.1(g) upon or following an account specified by Parent a non-refundable termination fee in an amount equal to $3.0 million plus reimbursement of the Merger Agreement under circumstances where all documented out-of-pocket costs and expenses incurred by Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of connection with the transactions contemplated by this Agreement, and that, without these agreements, Buyer would Agreement (but excluding any investment banking fees) in an amount not enter into to exceed $1.0 million.
(c) In the event of a termination of this Agreement; accordingly, if Seller Agreement by Parent or Parent fails to pay promptly the amount due Company pursuant to this Section 10.29.1(b) or Section 9.1(d), andthen contemporaneously with such termination, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will Company shall pay to Buyer its Parent by wire transfer of immediately available funds to an account specified by Parent a non-refundable termination fee in an amount equal to $3.0 million plus reimbursement of all documented out-of-pocket costs and expenses incurred by Parent in connection with the transactions contemplated by this Agreement (including attorneys’ but excluding any investment banking fees) in connection with this suitan amount not to exceed $1.0 million, together with interest on the amount of the fee at the Prime Rate in effect on provided, however, that such payment shall be made only if (A) following the date of this Agreement and prior to the payment should termination of this Agreement, any Company Takeover Proposal shall have been madepublicly announced or shall have become publicly known and shall not have been withdrawn prior to such termination, and (B) within nine (9) months following the termination of this Agreement, either a Company Takeover Proposal is consummated or the Company enters into an agreement providing for a Company Takeover Proposal and such Company Takeover Proposal is later consummated (with such payment to be made at or prior to the consummation of such Company Takeover Proposal). For purposes of this Section 9.2(c), the definition of "Company Takeover Proposal" and "Company Takeover Event" shall be modified (i) by replacing the 10% threshold used in Section 6.8(a) with 30%, and (ii) to not apply to the issuance of any non-voting, non-convertible preferred securities.
Appears in 1 contract
Procedure and Effect of Termination. In the event of the termination of this Agreement pursuant to Section 10.1and the abandonment of the Contemplated Transactions, written notice thereof will forthwith shall be given by the a terminating Party party to the other Parties parties, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will Contemplated Transactions shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingparties. If this Agreement is terminated pursuant to Section 10.1(e10.1:
(a) Buyer shall promptly cause to be returned to Pregis or Section 10.1(g) upon or following termination destroy all documents and information obtained in connection with this Agreement and the Contemplated Transactions and all documents and information obtained in connection with Buyer's investigation of the Merger Companies' business and the Mexico Business from Pregis or its representatives, including any copies made by or supplied to Buyer or any of Buyer's agents of any such documents or information.
(b) Pregis shall promptly cause to be returned to Buyer or destroy all documents and information obtained in connection with this Agreement under circumstances where Seller is required and the Contemplated Transactions and all documents and information obtained in connection with Buyer's investigation of the Business from Buyer or its representatives, including any copies made by or supplied to pay Parent Pregis or any of Pregis's agents of any such documents or information.
(c) Except as provided in Section 10.2(d), no party hereto shall have any obligation or liability to the Company Termination Fee (as defined in other parties hereto, except that the Merger Agreement) pursuant to parties hereto shall remain bound by the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, andSection 5.10, in order to obtain such paymentSection 5.11 and Article XI and by the provisions of the Confidentiality Agreement; provided, Buyer commences that nothing herein shall relieve a suit which results in a judgment against Seller defaulting or Parentbreaching party from any liability or damages arising out of its willful, as the case may be, for the fee to be paid by such Party as set forth intentional or fraudulent material breach of any covenant or agreement in this Agreement.
(d) If Buyer terminates this Agreement pursuant to Section 10.210.1(f) as a result of disclosure to it by Pregis of information Known to the Companies prior to the date hereof, Seller or Parent, as applicable, will Pregis shall pay damages to Buyer its equal to Buyer's costs and expenses incurred in negotiating the Contemplated Transactions with Pregis (including attorneys’ fees) in connection with this suitincluding, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madebut not limited to, Buyer's costs and fees incurred for outside advisors).
Appears in 1 contract
Procedure and Effect of Termination. (a) In the event of termination of this Agreement by either or both the Company and/or the Selling Shareholder pursuant to Section 10.18.1 hereof, prompt written notice thereof will shall forthwith be given by the terminating Party to the other Parties party, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (parties hereto, but subject to, and without limiting, any other rights of the parties specified herein in the event a party is in default or breach in any material respect of their respective Representatives) will terminate, except as otherwise expressly provided in its obligations under this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is .
(ib) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e8.1(c) and, prior to such termination, Selling Shareholder was in breach in any material respect of its representations, warranties, covenants, agreements, or Section 10.1(gobligations set forth in this Agreement, which breach was not cured by Selling Shareholder within thirty (30) upon or following days after notice to Selling Shareholder by Company, then and, in that event, in recognition of the unique character of the property to be sold hereunder and the damages which the Company will suffer in the event of a termination of the Merger this Agreement under circumstances where Seller is required to pay Parent caused by a breach by Selling Shareholder, the Company Termination Fee shall have the right to pursue all remedies available hereunder at law or in equity, including, without limitation, the right to seek specific performance and/or monetary damages. Selling Shareholder hereby waives any defense that the Company has an adequate remedy at law for such breach of this Agreement by Selling Shareholder.
(as defined in the Merger Agreementc) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g8.1(b) upon or following termination and, prior to such termination, the Company was in breach in any material respect of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreementits representations, Parent willwarranties, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement)covenants, pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as obligations set forth in this Section 10.2Agreement, Seller which breach was not cured by the Company thirty (30) days after notice to Company by Selling Shareholder, then and, in that event, Selling Shareholder shall have the right to pursue all remedies available hereunder at law or Parentin equity, as applicableincluding the right to seek specific performance and/or monetary damages.
(d) In the event of a default by either party that results in a lawsuit or other proceeding for any remedy available under this Agreement, will pay the prevailing party shall be entitled to Buyer reimbursement from the other party of its costs reasonable legal fees and expenses (including attorneys’ fees) expenses, whether incurred in connection with this suitarbitration, together with interest at trial, or on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeappeal.
Appears in 1 contract
Samples: Stock Redemption Agreement (Sinclair Broadcast Group Inc)
Procedure and Effect of Termination. In the event of termination of this Agreement by Seller or Purchaser, this Agreement shall immediately become void and there shall be no liability hereunder on the part of any Party except as follows:
(a) If Purchaser terminates this Agreement pursuant to any of Subsections (a), (b), (c), or (e) (but in the case of (e), only if due to failure to obtain Required Consents) of Section 8.4, then this Agreement shall be null and void, the Xxxxxxx Money shall be returned to Purchaser and no party shall have any further liability or obligation to any other party under this Agreement, except that Purchaser shall not be relieved of the Purchaser Repair Obligations, and the Confidentiality Provisions shall survive for the period set forth in Section 5.4. Notwithstanding the preceding sentence, if Purchaser terminates this Agreement pursuant to Section 10.18.4(e), written notice thereof will forthwith the Xxxxxxx Money shall be given by returned to Purchaser only if the terminating Party events or unsatisfied closing conditions resulting in the failure of the Closing to occur were not within the other Parties and sole control of Purchaser. If such events or unsatisfied closing conditions resulting in the failure of the Closing to occur were within the sole control of Purchaser, then the Xxxxxxx Money shall be delivered to Seller. If Purchaser terminates this Agreement pursuant to Section 8.4(c), Seller shall pay to Purchaser (other than as set forth if Purchaser is not then in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in material default under this Agreement; provided), that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreementas Purchaser’s sole remedy, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant an amount equal to Section 10.1(e) or Section 10.1(g) upon or following termination of all actual out-of-pocket amounts expended by Purchaser in connection with the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part pursuit of the transactions contemplated by this Agreement (including all reasonable legal expenses and due diligence costs, including fees and costs paid to Archon Group, LP) up to a maximum amount of $1,000,000; provided that in the case of termination due to a material intentional misrepresentation or Seller’s willful refusal to comply with any covenant hereunder or willful refusal to satisfy a closing condition that is within Seller’s control, such $1,000,000 cap shall be increased to $4,975,000. If Seller defaults in performing any covenants or agreements to be performed by Seller under this Agreement or Seller breaches any representations or warranties made by Seller in this Agreement, and thatPurchaser shall also have the right, without these agreements, Buyer would not enter into instead of terminating this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant elect to permit this Section 10.2, Agreement to remain in effect and, in order addition to obtain such paymentthe remedies set forth above, Buyer commences a suit which results in a judgment against to seek specific performance or other injunctive relief. The liability of Seller under this Section 8.5(a) shall be joint and several as to all Persons comprising Seller; provided that the following entities shall have no liability hereunder for monetary payments to Purchaser: †; †; †; †; †; and †.
(b) If Seller terminates this Agreement pursuant to Section 8.4, this Agreement shall become null and void and no party shall have any further liability or Parentobligation to any other party under this Agreement, as except that Purchaser shall not be relieved of the case may bePurchaser Repair Obligations, and the Confidentiality Provisions shall survive for the fee to be paid by such Party as period set forth in this Section 10.25.4. If, Seller but only if, Seller’s termination is pursuant to (i) Section 8.4(d), or Parent(ii) Section 8.4(e) and a material default hereunder by Purchaser was the cause of, as applicableor resulted in, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount failure of the fee at Closing to occur on or before the Prime Rate Drop Dead Date (and in effect on the date case of either (i) or (ii), only if Seller is not then in material default under this Agreement), the payment should have been madeXxxxxxx Money shall be paid to Seller as liquidated damages, and in all other cases the Xxxxxxx Money shall be returned to Purchaser upon Seller’s termination. Seller's sole and exclusive remedy for Purchaser's default shall be to receive the Xxxxxxx Money as liquidated damages, and in no event and under no circumstances shall Seller be entitled to receive more than the Xxxxxxx Money as damages for Purchaser's default.
Appears in 1 contract
Procedure and Effect of Termination. In the event of (a) Upon termination of this Agreement by Seller or Purchaser pursuant to Section 10.1SECTION 11.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties Party and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate forthwith and become void and of there shall be no effect, and Liability or obligation on the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities part of the Parties hereunder (and of any of or their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach . Termination of this Agreement, Agreement shall terminate all outstanding obligations and liabilities between the Asset Purchase Parties arising from this Agreement or the Merger Agreement which is except those described in: (i) materialSECTION 8.1, this ARTICLE XI and ARTICLE XII; (ii) willful or knowing. If the Confidentiality Agreement; and (iii) any other provisions of this Agreement which by their nature are intended to survive any such termination.
(b) In the event that this Agreement is terminated by Seller pursuant to Section 10.1(e(i) SECTION 11.1(B)(III) or Section 10.1(g(ii) upon by Purchaser pursuant to SECTIONS 11.1(C)(III) or following termination (IV), Seller shall pay King a fee equal to Twelve Million Dollars ($12,000,000) (the "TERMINATION FEE") by wire transfer of immediately available funds to an account designated by King in writing. The Termination Fee shall be paid promptly, but in no event later than three (3) Business Days after the date of receipt by Seller of such wiring instructions. Receipt of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee shall be Purchaser's sole and exclusive remedy against Seller for accepting a Superior Proposal.
(as defined in c) In the Merger Agreement) event that this Agreement is terminated by Seller pursuant to SECTION 11.1(B)(I) or SECTION 11.1(B)(II) then, in addition to any other remedies available to Seller under this Agreement, Purchaser shall pay to Seller within two (2) Business Days after the provisions receipt of Section 9.5(b) a notice therefor an amount equal to Seller's reasonable out-of-pocket expenses in connection with the negotiation, execution and delivery of this Agreement and the actions taken in furtherance of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) consummation of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger this Agreement, by wire transfer of same day funds. If immediately available funds to an account designated by Seller in writing.
(d) In the event that this Agreement is terminated by Purchaser pursuant to Section 10.1(gSECTION 11.1(C)(I) upon or following termination of the Merger Agreement SECTION 11.1(C)(II) then, in addition to any other remedies available to Purchaser under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will shall pay to Buyer its costs and King within two (2) Business Days after the receipt of a notice therefor an amount equal to Purchaser's reasonable out-of-pocket expenses (including attorneys’ fees) in connection with the negotiation, execution and delivery of this suit, together with interest on Agreement and the amount actions taken in furtherance of the fee at the Prime Rate consummation of this Agreement, by wire transfer of immediately available funds to an account designated by King in effect on the date the payment should have been madewriting.
Appears in 1 contract
Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating Party to the other Parties and this Agreement (other than Except as set forth in this Section 10.2paragraph, Section 10.4 upon any termination of this Agreement, all rights and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities obligations of the Parties hereunder (and shall terminate without any liability or obligation of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of Party, provided that Sections 9.7(d), 9.9, this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) materialSection 10.2, and (ii) willful or knowingArticle XI shall survive such termination. If In the event that this Agreement is terminated pursuant to Section 10.1(e10.1(f) above, the Deposit Amount (or an amount equal to the Deposit Amount if such termination occurs prior to the Purchaser's funding of the Deposit Amount as contemplated herein) and any interest accrued thereon shall be paid to Parent and the Subsidiaries in accordance with the Escrow Agreement (or, if such termination occurs prior to the Purchasers' funding of the Deposit Amount, within five (5) Business Days after such termination). In the event this Agreement is terminated pursuant to any subsection of Section 10.1 other than subsection (f), the Deposit Amount and any interest accrued thereon shall be paid to Purchaser in accordance with the Escrow Agreement. The Break-Up Fee and the Expense Reimbursement Fee shall in all events be payable under the circumstances and in accordance with the timing set forth in Section 9.7(d). Any amounts paid to a Party under Section 9.7(d) or this Section 10.1(g) upon 10.2, including the Break-Up Fee, Expense Reimbursement Fee and the Deposit Amount (or following an amount equal to the Deposit Amount if such termination 40 <PAGE> occurs prior to the Purchaser's funding of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (Deposit Amount as defined in the Merger Agreement) pursuant to the provisions contemplated herein), shall constitute liquidated damages, and no Party shall have any further liability or obligation as a result of Section 9.5(b) of the Merger Agreement, Seller will, following such termination termination. The Parties acknowledge and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If agree that if this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of 10.1, the Merger Agreement under circumstances where Parent is required actual damages incurred will be difficult, if not impossible, to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination ascertain and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if the Parties have provided for the liquidated damages provided above. It is further agreed that this provision shall not be construed as a penalty, but as a bona fide attempt to establish an agreed measure of damages which Seller and the Subsidiaries or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or ParentPurchaser, as the case may be, for the fee to be paid by such Party will suffer as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount a result of the fee at the Prime Rate in effect on the date the payment should have been made.termination of this Agreement pursuant to such Sections. ARTICLE XI GENERAL PROVISIONS 11.1
Appears in 1 contract
Samples: Purchase Agreement
Procedure and Effect of Termination. (a) In the event of termination of this Agreement by either or both of Seller and Buyer pursuant to Section 10.1, written notice thereof will shall forthwith be given by the terminating Party party to the other Parties party hereto, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall thereupon terminate and become void and of have no effect, and the transactions contemplated hereby will shall be abandoned without further action by the parties hereto and, subject to subsection (b) hereof, the parties hereto waive and release any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminateclaim or Action with respect thereto, except as otherwise expressly provided that the Confidentiality Agreement and any provisions of this Agreement relating to the responsibility for expenses incurred in connection with the transactions contemplated by this Agreement shall survive the termination of this Agreement; provided, however, that such termination will shall not relieve any Party from party hereto of any liability for damages to any other Party resulting from any prior willful, material breach of this Agreement, Agreement prior to such termination (except that the Asset Purchase Agreement or break-up fee and expense reimbursement provisions of Section 10.2(b) hereof shall be the Merger Agreement which sole remedy of Buyer and Richfood in the event of a termination that is the subject of such provisions).
(b) Notwithstanding the foregoing:
(i) material, and (ii) willful or knowing. If in the event that this Agreement is terminated by Seller pursuant to Section 10.1(e10.1(c) hereof, then Seller shall pay to Buyer a break-up fee in an amount equal to $4.0 million;
(ii) in the event that (A) this Agreement is terminated by Buyer pursuant to Section 10.1(b)(i), 10.1(b)(v) or 10.1(b)(vi) hereof, (B) this Agreement is terminated by Buyer pursuant to Section 10.1(g10.1(d) upon hereof, and the failure to complete the Closing by the date set forth in such Section is solely a result of a material breach by Seller of its obligations hereunder or following termination (C) this Agreement is terminated or rejected under Section 365 of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined Bankruptcy Code in the Merger AgreementBankruptcy Case (other than solely as a result of a material breach by Buyer of its obligations hereunder) and, in the case of (A), (B) or (C), within one year thereafter the Bankruptcy Court approves any agreement for the purchase of all or substantially all of the Assets or any other transaction involving the acquisition of a majority of the outstanding equity ownership of Seller by any Person or Persons other than Buyer or any of its Affiliates (other than a recapitalization involving the creditors of Seller or FF Holdings), then Seller shall pay to Buyer a break-up fee in an amount equal to $4.0 million; or
(iii) in the event that (A) this Agreement is terminated by Buyer pursuant to Section 10.1(b) hereof, (B) this Agreement is terminated by Buyer pursuant to Section 10.1(d) hereof, and the provisions failure to complete the Closing by the date set forth in such Section is solely a result of a material breach by Seller of its obligations hereunder or (C) this Agreement is terminated or rejected under Section 9.5(b) 365 of the Merger AgreementBankruptcy Code in the Bankruptcy Case (other than solely as a result of a material breach by Buyer of its obligations hereunder) and, in the case of (A), (B) or (C), within one year thereafter the Bankruptcy Court approves any recapitalization involving the creditors of Seller will, following such termination and at or FF Holdings resulting in the time required under Section 9.5(b) acquisition of a majority of the Merger Agreementoutstanding equity ownership of Seller by any Person or Persons other than Buyer or any of its Affiliates, pay into a joint bank account then Seller shall reimburse Buyer for its actual out-of-pocket expenses incurred in connection with the transactions contemplated herein (including, without limitation, the fees and expenses of Buyer's financial advisors, environmental consultants, accountants and legal counsel), not to exceed $1.0 million in the names aggregate. Any amount payable pursuant to this Section shall be due two business days after written demand by Buyer following the occurrence of Buyer any of the foregoing events, and Parent the termination fee required to shall be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day immediately available federal funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been made.
Appears in 1 contract
Procedure and Effect of Termination. In the event of (a) Upon termination of this Agreement by a Party pursuant to Section 10.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effectforthwith, and shall become void, and except as expressly provided herein, there shall be no liability or obligation on the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities part of the Parties hereunder (and of any of or their respective Representatives. Termination of this Agreement shall terminate all outstanding obligations and liabilities between the Parties arising from this Agreement except those described in: (i) will terminateSection 8.1, except as otherwise expressly provided in this Article X, Article XI and Article XII; (ii) the Confidentiality Agreement; provided, that and (iii) any other provisions of this Agreement which by their nature are intended to survive any such termination. No termination will not relieve of this Agreement shall release or be construed as releasing any Party from any liability Liability to another Party which may have arisen, in the first instance, under this Agreement prior to termination (e.g., for damages to any other Party resulting from any prior misrepresentation, breach of warranty or breach of covenant).
(b) If this AgreementAgreement is terminated by Seller pursuant to Section 10.1(b)(ii) or by Buyer pursuant to Section 10.1(c)(ii), the Asset Purchase Agreement or the Merger Agreement which is then Seller shall, no later than five (5) Business Days after such termination, pay to Buyer an amount equal to (i) materialEight Million Five Hundred Thousand Dollars ($8,500,000) (such payment, the “Termination Fee”), by wire transfer of immediately available funds to an account designated by Buyer in writing, and (ii) willful or knowingSeller shall have no further obligation upon such termination and payment of the Termination Fee to pay any amount with respect to Buyer’s expenses in connection with this Agreement and the Transactions. If this Agreement is terminated pursuant to Section 10.1(e10.1(a)(iv), then Seller shall, no later than five (5) or Section 10.1(gBusiness Days after such termination, pay to Buyer an amount equal to Buyer’s reasonable and documented out-of-pocket expenses actually incurred in connection with this Agreement and the Transactions, not to exceed Three Million Dollars ($3,000,000). If, within twelve (12) upon or following months after the Execution Date and subsequent to a termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to Section 10.1(a)(iv), Seller consummates a transaction including the provisions acquisition, directly or indirectly, by any Person (other than Buyer) of Section 9.5(bat least fifty percent (50%) of the Merger Agreementshares of capital stock or other voting equity securities of Seller, Seller willwhether by stock purchase, following such termination and at the time required under Section 9.5(b) merger or otherwise, or of the Merger Agreementassets of Seller, pay into a joint bank account with terms at least as favorable to Seller in the names of Buyer and Parent the termination fee required to be paid pursuant to aggregate as the terms of the Merger AgreementTransactions, by wire transfer upon consummation of same day funds. If this Agreement is terminated pursuant such subsequent transaction, then Seller shall, no later than five (5) Business Days after such consummation, pay to Section 10.1(gBuyer the difference of (A) upon or following termination Eight Million Five Hundred Thousand Dollars ($8,500,000), and (B) any amounts already paid to Buyer as reimbursement of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) Buyer’s out-of-pocket expenses pursuant to the provisions of Section 9.5(c) immediately preceding sentence. The Termination Fee is in no respect intended by the Parties to constitute liquidated damages, or be viewed as an indicator of the Merger damages payable, or in any other respect limit or restrict damages available in case of any breach of warranty, breach of covenant or other breach of this Agreement, Parent will, following such termination and at the time required for payment .
(c) Each of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge Parties acknowledges that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated Transactions and have been agreed to by this Agreement, and that, without these agreements, Buyer would not each of the Parties hereto in order to induce the other Parties to enter into this Agreement; accordinglyAgreement and to consummate the Transactions, if it being agreed and acknowledged by each of them that the execution of this Agreement by them constitutes full and reasonable consideration for such provisions. In the event that Seller or Parent fails should fail to pay promptly the amount due pursuant to Termination Fee when due, Seller shall reimburse Buyer for all reasonable costs and expenses actually incurred or accrued by Buyer (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of the provisions of this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with plus interest on the amount of the fee thereon at the Prime Rate in effect on the date the payment should have been maderate of five percent (5%) per annum.
Appears in 1 contract
Procedure and Effect of Termination. In the event of a termination contemplated hereby by any party pursuant to SECTION 10.1, the party seeking to terminate this Agreement shall give prompt written notice thereof to the other party, and the transactions contemplated hereby shall be abandoned, without further action by any party hereto. In such event:
(a) The parties hereto shall continue to be bound by their obligations of confidentiality set forth in SECTION 8.4, and all copies of the information provided by FirstBancorporation and FNC hereunder will be returned to FirstBancorporation and FNC, respectively, or destroyed immediately upon its request therefor.
(b) All filings, applications and other submissions relating to the transactions contemplated hereby shall, to the extent practicable, be withdrawn from the Person to which made.
(c) Unless this Agreement is terminated pursuant to SECTION 10.1(e), 10.1(f) or 10.1(h), the terminating party shall be entitled to seek any remedy to which such party may be entitled at law or in equity for the willful violation or willful breach of any agreement, covenant, representation or warranty contained in this Agreement.
(d) If this Agreement is terminated (i) by FNC pursuant to SECTION 10.1(e), or (ii) by FirstBancorporation pursuant to SECTION 10.1(f), FirstBancorporation shall pay to FNC by wire transfer in immediately available funds within one Business Day of such termination, a termination fee of $960,000 in cash, which the parties agree is a reasonable estimate of the out-of-pocket expenses of FNC for attorneys, accountants and financial advisors paid by FNC in connection with the proposed Merger, the cost of management time and overhead devoted to pursuing the proposed Merger, and FNC's loss of opportunity to pursue other transactions by pursuing the proposed Merger. If this Agreement is terminated by FNC or FirstBancorporation pursuant to SECTION 10.1(h), FNC shall pay to FirstBancorporation by wire transfer in immediately available funds within one Business Day of such termination, a termination fee of $960,000 in cash, which the parties agree is a reasonable estimate of the out-of-pocket expenses of FirstBancorporation for attorneys, accountants and financial advisors paid by FirstBancorporation in connection with the proposed Merger, the cost of management time and overhead devoted to pursuing the Merger, and FirstBancorporation's loss of opportunity to pursue other transactions by pursuing the Merger.
(e) In the event of termination of this Agreement and the abandonment of the Merger pursuant to Section SECTION 10.1, written notice thereof will forthwith be given by the terminating Party no party to the other Parties and this Agreement (shall have any liability or further obligation to any other than party hereunder except as set forth in this Section 10.2SECTION 10.2(a)-(d), Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages however, if a party is entitled to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of the Merger Agreement relief under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger AgreementSECTION 10.2(d), pay Buyer the Termination Fee. Seller, Limited Partner such relief shall be its sole and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeexclusive remedy.
Appears in 1 contract
Procedure and Effect of Termination. In the event of termination of this Agreement and abandonment of the transactions contemplated hereby by either or both of the parties pursuant to Section 10.19.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties party and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will shall be abandoned abandoned, without further action by any Party, whereupon the liabilities either of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingparties hereto. If this Agreement is terminated as provided herein:
(a) upon request therefor, each party will redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same;
(b) each party hereto will use its best efforts to prevent disclosure to third persons of all information received by either party with respect to the business of the other party or its subsidiaries (other than information which is a matter of public knowledge or which has heretofore been or is hereafter published in any publication for public distribution or filed as public information with any Governmental Entity except (i) as may be required by Law; and (ii) as is permitted by this Agreement;
(c) neither party hereto shall have any liability or further obligation to the other party to this Agreement pursuant to this Agreement except as stated in this Section 9.2 and in Sections 5.3(b) and 5.4, provided that nothing herein shall relieve any party from liability for its willful breach of this Agreement; and
(d) if after the date hereof Seller receives a Dexter Acquisition Proposal which proposes that the Seller's shareholders receive consideration with a fair market value per share exceeding $45 and which includes a condition that this Agreement be terminated and if for any reason the Seller's shareholders are asked to approve this Agreement and such approval is denied, and this Agreement is subsequently terminated, then within 2 business days following such termination the Seller shall pay the Buyer a fee of $8 million; and
(e) upon any termination of this Agreement other than pursuant to Section 10.1(e9.1(e) or Section 10.1(g) and upon or request by the Buyer, the Seller shall promptly, but in no event later than 2 business days following termination the date of such request, reimburse the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and out-of-pocket cash expenses (including attorneys’ feeswithout limitation, fees and expenses of accountants, counsel, investment bankers and consultants and all travel related expenses) incurred in connection with this suit, together with interest on Agreement and the amount transactions contemplated hereby (whether incurred prior to or subsequent to the execution of this Agreement); provided that the fee at the Prime Rate Seller shall in effect on the date the payment should have been madeno event be responsible for more than $500,000 in respect of this paragraph (e).
Appears in 1 contract
Procedure and Effect of Termination. In 8.2.1 Termination of this Agreement by either Buyer or Seller shall be by delivery of a Notice to the event of other Party. Such notice shall state the termination provision in this Agreement that such terminating Party is claiming provides a basis for termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating Party to the other Parties and Agreement. Termination of this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) 8.1 shall be effective upon and as of the Merger date of delivery of such Notice as determined pursuant to Section 9.2.
8.2.2 If a Party waives compliance with any of the conditions, obligations or covenants contained in this Agreement, Seller will, following such the waiver will be without prejudice to any of its rights of termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names event of Buyer and Parent the termination fee required to be paid pursuant to the terms non-fulfilment, non-observance or non-performance of the Merger Agreementany other condition, by wire transfer of same day funds. obligation or covenant in whole or in part.
8.2.3 If this Agreement is terminated pursuant to Section 10.1(g) upon or terminated, the Parties are released from all of their obligations under this Agreement, except that each Party’s obligations under Sections 5.3, 7.2, 8.2.3, 8.3, 9.1, 9.2, 9.3, 9.5, 9.9, 9.10 and 9.11 will survive.
8.2.4 As soon as practicable following a termination of the Merger this Agreement under circumstances where Parent is required to pay for any reason, but in no event more than 30 days after such termination, Buyer and Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant shall, to the provisions of Section 9.5(c) of the Merger Agreementextent practicable, Parent willwithdraw all filings, following such termination applications and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of other submissions relating to the transactions contemplated by this Agreement filed or submitted by or on behalf of such Party, any Governmental Authority or other Person.
8.2.5 Notwithstanding anything to the contrary in this Agreement, Buyer shall only be entitled to exercise its applicable termination rights pursuant to Section 8.1.4 as a result of the failure of the Bankruptcy Court to grant a priority charge with respect to the Termination Fee and that, without these agreements, Buyer would not enter into this Agreement; accordinglyExpense Reimbursement as required by Section 5.9.1(a), if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount has provided written notice of the fee at exercise of such right of termination within five (5) Business Days of the Prime Rate in effect on issuance of the date the payment should have been madeBidding Procedures Order.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)
Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.18.1 hereof, written notice thereof will shall forthwith be given by the terminating Party to the other Parties and this Agreement (other than party, and, except as set forth in this Section 10.28.2, Section 10.4 and Section 11.1) will this Agreement shall terminate and become be void and of have no effect, effect and the transactions contemplated hereby will shall be abandoned without further action abandoned; provided that if (x) such termination shall result from the Intentional Breach of any representation, warranty, covenant or other agreement contained herein or (y) the Intentional Breach of any representation, warranty, covenant or other agreement contained herein shall cause the Closing not to occur, then such breaching party shall be fully liable for any and all damages of any kind incurred or suffered by any Partythe other party as a result of such failure or breach, whereupon including, with respect to Intentional Breaches by a party, damages for the liabilities lost value to the other party of the Parties hereunder benefits of the transactions contemplated by the Agreement (which damages shall not be limited to out-of-pocket expenses, and which shall be determined without regard to any limitation on types or measurement of any of their respective Representatives) will terminate, except as otherwise expressly provided damages in this Agreement); provided, further, that such any failure by Buyer to consummate the Closing at any time at which APD shall have the right to terminate this Agreement pursuant to Section 8.1(f) due to a breach by Buyer of its representations and warranties in Section 4.4 or a breach by Buyer of the obligations set forth in Section 5.26 shall be deemed to be an Intentional Breach by Buyer; provided, further, that nothing in this Section 8.2 shall limit Buyer’s obligation to pay the termination will not relieve fee under Section 5.3(d), if payable; provided, further, that in the event that APD receives payment of the termination fee under Section 5.3(d), any Party from any liability damages recoverable by APD for damages an Intentional Breach under this Section 8.2 shall be reduced by the amount of the termination fee paid to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingAPD under Section 5.3(d). If this Agreement is terminated pursuant as provided herein:
(a) each party hereto will redeliver, and will cause its agents (including attorneys and accountants) to Section 10.1(e) or Section 10.1(g) upon or following termination redeliver, all documents, work papers and other material of the Merger Agreement under circumstances where Seller is required each party hereto relating to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated hereby, whether obtained before or after the execution hereof;
(b) all Information received by this AgreementBuyer with respect to the business, and thatoperations, without these agreements, Buyer would not enter into this Assets or financial condition of APD or its Subsidiaries shall remain subject to the Confidentiality Agreement; accordinglyand
(c) notwithstanding the termination hereof, if Seller or Parent fails the following Sections of this Agreement shall remain in full force and effect: (A) Sections 3.18 and 4.9 relating to pay promptly the amount due pursuant to brokers, (B) Sections 5.3(d), 5.13 and 8.1 and this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs 8.2 and expenses (including attorneys’ feesC) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeArticle IX.
Appears in 1 contract
Samples: Purchase Agreement (Air Products & Chemicals Inc /De/)
Procedure and Effect of Termination. In the event of termination of If either party terminates this Agreement pursuant to Section 10.111.1 above, written notice thereof will forthwith be given by all rights and obligations of the terminating Party parties hereunder shall terminate without any liability of any party to the any other Parties and this Agreement (other than party except as set forth in this Section 10.2, Section 10.4 and Section 11.1below:
(a) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of by the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) Buyer pursuant to the provisions of Section 9.5(b11.1(b) above and the failure to complete the Closing on or before the Closing Date Deadline shall have been due to the breach of any material representation, warranty or covenant of the Merger Seller or the Shareholder under this Agreement, then the Seller willshall, following such termination and at the time required under Section 9.5(b) on demand of the Merger AgreementBuyer, promptly pay into to the Buyer in immediately available funds, as liquidated damages for the loss of the transaction and not as a joint bank account in the names of Buyer and Parent the penalty, a termination fee required to be paid pursuant to of $1,000,000 (the terms of the Merger Agreement, by wire transfer of same day funds. "Seller's Termination Fee").
(b) If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of by the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c11.1(c) above and the failure to complete the Closing on or before the Closing Date Deadline shall have been due to the breach of any material representation, warranty or covenant of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by under this Agreement, then the Buyer shall, upon demand of the Seller, promptly pay to the Seller in immediately available funds, as liquidated damages for the loss of the transaction and thatnot as a penalty, without these agreements, Buyer would not enter into a termination fee of $1,000,000 (the "Buyer's Termination Fee"). The respective rights of the parties to terminate this Agreement; accordingly, if Seller Agreement under Sections 11.1(b) or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent11.1(c), as the case may be, for the fee and to be paid the Seller's Termination Fee or the Buyer's Termination Fee, as the case may be, shall be the respective parties' sole and exclusive remedies for damages for breach of this Agreement; in this regard, the parties hereto agree that (i) they reasonably anticipate that the damages for breach of this Agreement, as contemplated by Sections 11.1(b) or 11.1(c), will be difficult to ascertain because of their indefiniteness or uncertainty, and (ii) the Seller's Termination Fee and the Buyer's Termination Fee are reasonable estimates of such Party damages. In the event of such termination by either party pursuant to Section 11.1(b) or 11.1(c), as set forth the case may be, such party shall have no right to equitable relief for any breach or alleged breach of this Agreement, other than for specific performance for the payment of the Seller's Termination Fee or the Buyer's Termination Fee, as the case may be.
(c) Except as specifically provided in this Section 10.211.2, Seller or Parentnothing contained in this Section 11.2 shall prevent any party from seeking any equitable relief, as applicableincluding specific performance, will pay to Buyer its costs and expenses (including attorneys’ fees) which it would otherwise be entitled in connection with the event of breach of this suit, together with interest on Agreement by the amount of the fee at the Prime Rate in effect on the date the payment should have been madeother party.
Appears in 1 contract
Procedure and Effect of Termination. In the event of the termination of this Agreement and the abandonment of the transactions contemplated hereby pursuant to Section 10.110.1 hereof, written notice thereof will shall forthwith be given by the party so terminating Party to the other Parties parties, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingparty. If this Agreement is terminated pursuant to Section 10.1(e10.1 hereof:
(a) or Section 10.1(g) upon or following termination each party shall redeliver all documents, work papers and other materials of the Merger Agreement under circumstances where Seller is required other parties relating to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreementhereby, whether obtained before or after the execution hereof, to the party furnishing the same or, upon prior written notice to such party, shall destroy all such documents, work papers and other materials and deliver notice to the party seeking destruction of such documents that such destruction has been completed, and thatall confidential information received by any party with respect to the other parties shall be treated in accordance with the Confidentiality Agreement;
(b) all filings, without these agreementsapplications and other submissions made pursuant hereto shall, Buyer would not enter into this Agreement; accordinglyat the option of Seller, if and to the extent practicable, be withdrawn from the agency or other Person to which made;
(c) there shall be no liability or obligation hereunder on the part of Seller, HMP or Purchaser or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives, except that Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or ParentPurchaser, as the case may be, shall have liability to the Purchaser or Seller, as the case may be, if the basis of termination is a material breach by Seller or Purchaser, as the case may be, of one or more of the provisions of this Agreement, and except that the obligations provided for the fee to be paid by such Party as set forth in this Section 10.210.2 and Section 10.4 hereof and in the Confidentiality Agreement shall survive any such termination; and
(d) if this Agreement has been terminated by Purchaser, pursuant to Section 10.1(b) as a result of a material breach of a provision of this Agreement by Seller, Purchaser may immediately terminate its distributorship relationship with Seller and commence direct sales to any and all of Seller's customers and Seller and HMP irrevocably waive any notice or Parent, as applicable, will pay waiting period otherwise required for the termination of such distributorship relationship and any right to Buyer its costs and expenses (including attorneys’ fees) in connection object or claim monetary damages with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been maderespect to such termination and/or Purchaser's sales to Seller's customers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Medical Products Inc)
Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating (1) If a Party to the other Parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by waives compliance with any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminateconditions, except as otherwise expressly provided obligations or covenants contained in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase waiver will be without prejudice to any of its rights of termination in the event of non-fulfilment, non-observance or non-performance of any other condition, obligation or covenant in whole or in part. Termination of this Agreement by either the Vendor or the Merger Agreement which is (i) material, and (ii) willful or knowingPurchaser shall be by delivery of a written notice to the other. If Such notice shall state the termination provision in this Agreement that such terminating Party is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following claiming provides a basis for termination of the Merger this Agreement. Termination of this Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) 9.1 shall be effective upon and as of the Merger Agreement, Seller will, following date of delivery of such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid written notice as determined pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. Section 11.1 .
(2) If this Agreement is terminated pursuant to terminated, the Parties are released from all of their obligations under this Agreement, except that each Party’s obligations under Section 10.1(g9.2(3), Section 9.3, Section 11.1, Section 11.3, Section 11.4, Section 11.5, Section 11.9 and Section 11.13, Section 11.14 will survive such termination.
(3) upon or As soon as practicable following a termination of this Agreement for any reason, but in no event more than 30 days after such termination, the Merger Agreement under circumstances where Parent is required to pay Seller Purchaser and the Parent Termination Fee (as defined in the Merger Agreement) pursuant Vendor shall, to the provisions of Section 9.5(c) of the Merger Agreementextent practicable, Parent willwithdraw all filings, following such termination applications and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of other submissions relating to the transactions contemplated by this Agreement filed or submitted by or on behalf of such Party, any Governmental Entity or other Person.
(4) Notwithstanding anything to the contrary in this Agreement, the Purchaser shall only be entitled to exercise its applicable termination rights pursuant to Section 9.1(d) as a result of the failure of the CCAA Court to grant a priority charge with respect to the Termination Fee and that, without these agreements, Buyer would not enter into this Agreement; accordinglyExpense Reimbursement as required by Section 6.11(1)(iii), if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount Purchaser has provided written notice of the fee at exercise of such right of termination within five (5) Business Days of the Prime Rate in effect on issuance of the date the payment should have been madeBidding Procedures Order.
Appears in 1 contract
Samples: Share Purchase Agreement (Aralez Pharmaceuticals Inc.)
Procedure and Effect of Termination. (a) In the event of termination of this Agreement by either or both Purchaser and/or Seller pursuant to Section 10.18.1 hereof, prompt written notice thereof will shall forthwith be given by the terminating Party to the other Parties party, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (parties hereto, but subject to, and without limiting, any other rights of the parties specified herein in the event a party is in default or breach in any material respect of their respective Representatives) will terminate, except as otherwise expressly provided in its obligations under this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is .
(ib) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e8.1(c) and, prior to such termination, Seller was in breach in any material respect of its representations, warranties, covenants, agreements, or Section 10.1(gobligations set forth in this Agreement, which breach was not cured by Seller within thirty (30) upon or following days after notice to Seller by Purchaser, then and, in that event, in recognition of the unique character of the property to be sold hereunder and the damages which Purchaser will suffer in the event of a termination of this Agreement caused by a breach by Seller, Purchaser shall have the Merger right to pursue all remedies available hereunder at law or in equity, including, without limitation, the right to seek specific performance and/or monetary damages. Seller hereby waives any defense that Purchaser has an adequate remedy at law for such breach of this Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee by Seller.
(as defined in the Merger Agreementc) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g8.1(b) upon or following termination and prior to such termination, Purchaser was in breach in any material respect of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreementits representations, Parent willwarranties, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement)covenants, pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as obligations set forth in this Section 10.2Agreement, which breach was not cured by Purchaser within thirty (30) days after notice to Purchaser by Seller, then and, in that event, Seller shall have the right to pursue all remedies available hereunder at law or Parentin equity, as applicableincluding the right to seek specific performance and/or monetary damages.
(d) In the event of a default by either party that results in a lawsuit or other proceeding for any remedy available under this Agreement, will pay the prevailing party shall be entitled to Buyer reimbursement from the other party of its costs reasonable legal fees and expenses (including attorneys’ fees) expenses, whether incurred in connection with this suitarbitration, together with interest at trial, or on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeappeal.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sinclair Broadcast Group Inc)
Procedure and Effect of Termination. In the event of (a) Upon termination of this Agreement by Seller or Purchaser pursuant to Section 10.111.1, written notice thereof will shall forthwith be given by the terminating Party to the other Parties Party and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate forthwith and become void and of there shall be no effect, and Liability or obligation on the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities part of the Parties hereunder (and of any of or their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach . Termination of this Agreement, Agreement shall terminate all outstanding obligations and liabilities between the Asset Purchase Parties arising from this Agreement or the Merger Agreement which is except those described in: (i) materialSection 8.1, this Article XI and Article XII; (ii) willful or knowing. If the Confidentiality Agreement; and (iii) any other provisions of this Agreement which by their nature are intended to survive any such termination.
(b) In the event that this Agreement is terminated by Seller pursuant to (i) Section 11.1(b)(iii) or (ii) by Purchaser pursuant to Sections 11.1(c)(iii) or (iv), Seller shall pay King a fee equal to Twelve Million Dollars ($12,000,000) (the “Termination Fee”) by wire transfer of immediately available funds to an account designated by King in writing. The Termination Fee shall be paid promptly, but in no event later than three (3) Business Days after the date of receipt by Seller of such wiring instructions. Receipt of the Termination Fee shall be Purchaser’s sole and exclusive remedy against Seller for accepting a Superior Proposal.
(c) In the event that this Agreement is terminated by Seller pursuant to Section 10.1(e11.1(b)(i) or Section 10.1(g11.1(b)(ii) upon or following termination then, in addition to any other remedies available to Seller under this Agreement, Purchaser shall pay to Seller within two (2) Business Days after the receipt of a notice therefor an amount equal to Seller’s reasonable out-of-pocket expenses in connection with the negotiation, execution and delivery of this Agreement and the actions taken in furtherance of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions consummation of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger this Agreement, by wire transfer of same day funds. If immediately available funds to an account designated by Seller in writing.
(d) In the event that this Agreement is terminated by Purchaser pursuant to Section 10.1(g11.1(c)(i) upon or following termination of the Merger Agreement Section 11.1(c)(ii) then, in addition to any other remedies available to Purchaser under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will shall pay to Buyer its costs and King within two (2) Business Days after the receipt of a notice therefor an amount equal to Purchaser’s reasonable out-of-pocket expenses (including attorneys’ fees) in connection with the negotiation, execution and delivery of this suit, together with interest on Agreement and the amount actions taken in furtherance of the fee at the Prime Rate consummation of this Agreement, by wire transfer of immediately available funds to an account designated by King in effect on the date the payment should have been madewriting.
Appears in 1 contract
Procedure and Effect of Termination. In the event of a termination of this Agreement pursuant to Section 10.111.1 hereof by one party, written notice thereof will shall forthwith be given by the terminating Party to the other Parties and this Agreement (other than party, and, except as set forth in below, this Section 10.2, Section 10.4 and Section 11.1) will Agreement shall terminate and become be void and of have no effect, effect and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowingabandoned. If this Agreement is terminated as provided herein: Buyer shall redeliver, and shall cause its agents (including, without limitation, attorneys and accountants) to redeliver, all documents, work papers and other materials of Seller relating to the transactions contemplated hereby, whether obtained before or after the execution hereof or certify the destruction thereof; all information received by Buyer with respect to the business, operations, assets or financial condition of Seller and the Acquired Companies shall remain confidential and subject to Confidentiality Agreement; except as otherwise expressly set forth herein, no party to this Agreement shall have any liability hereunder to any other party, except (i) for any breach by such party of the terms and provisions of this Agreement and (ii) as stated in paragraphs (a) and (b) of this Section 11.2; and Article I, Article XII and this Section 10.2 shall survive such termination. If, prior to Closing, Buyer should breach this Agreement in a manner which gives rise to a termination right pursuant to Section 10.1(e11.2(d) on the part of Seller (which breach shall include a purported or Section 10.1(g) upon or following wrongful termination of the Merger this Agreement under circumstances where by Buyer made in breach of this Agreement), then Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) may terminate this Agreement pursuant to Section 11.2(d) and receive payment of all amounts held by the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid Escrow Agent pursuant to the terms of the Merger Deposit Escrow Agreement (such amounts, the “Escrow Amount”) payable in accordance with the provisions hereof and of the Deposit Escrow Agreement. As security for payment thereof, Buyer has, concurrently with the execution of this Agreement, by wire transfer of same day fundsentered into the Deposit Escrow Agreement with Seller and the Escrow Agent as provided in Section 2.5. If this Agreement is terminated by Seller pursuant to Section 10.1(g) upon 11.2(d), Buyer and Seller shall instruct the Escrow Agent to release the Escrow Amount to Seller. If this Agreement is terminated either by Buyer or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions any provision of Section 9.5(c) of the Merger Agreement, Parent will, following such 11.2 other than a termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreementby Seller pursuant to Section 11.2(d), pay then Buyer and Seller shall instruct the Termination Fee. Seller, Limited Partner and Parent acknowledge that Escrow Agent to release the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails Escrow Amount to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been madeBuyer.
Appears in 1 contract
Samples: Acquisition Agreement
Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating Party to the other Parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest interest
1- LA/917645.9 71 on the amount of the fee at the Prime Rate in effect on the date the payment should have been made.
Appears in 1 contract
Samples: Partnership Interests Purchase Agreement (Aquila Inc)
Procedure and Effect of Termination. In the event of termination of this Agreement pursuant to Section 10.1, written notice thereof will forthwith be given by the terminating Party to the other Parties and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will terminate and become void and of no effect, and the transactions contemplated hereby will be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Partnership Interests Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(b) of the Merger Agreement, Seller will, following such termination and at the time required under Section 9.5(b) of the Merger Agreement, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms of the Merger Agreement, by wire transfer of same day funds. If this Agreement is terminated pursuant to Section 10.1(g) upon or following termination of the Merger Agreement under circumstances where Parent is required to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the provisions of Section 9.5(c) of the Merger Agreement, Parent will, following such termination and at the time required for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee, which shall be in an amount (subject to the limitations thereon as set forth in the definition of Termination Fee set forth herein) reasonably agreed upon by Xxxxx and Parent. Seller, Limited Partner Seller and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer Xxxxx commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the Prime Rate in effect on the date the payment should have been made.
Appears in 1 contract
Samples: Asset Purchase Agreement
Procedure and Effect of Termination. In the event of the termination of this Agreement and the abandonment of the transactions contemplated hereby pursuant to Section 10.17.1 hereof, written notice thereof will shall forthwith be given by the Party so terminating Party to the other Parties Party, and this Agreement (other than as set forth in this Section 10.2, Section 10.4 and Section 11.1) will shall terminate and become void and of no effect, and the transactions contemplated hereby will shall be abandoned without further action by any Party, whereupon the liabilities of the Parties hereunder (and of any of their respective Representatives) will terminate, except as otherwise expressly provided in this Agreement; provided, that such termination will not relieve any Party from any liability for damages to any other Party resulting from any prior breach of this Agreement, the Asset Purchase Agreement or the Merger Agreement which is (i) material, and (ii) willful or knowing. If this Agreement is terminated pursuant to Section 10.1(e7.1 hereof:
(a) or Section 10.1(g) upon or following termination each Party shall redeliver all documents, work papers and other materials of the Merger Agreement under circumstances where Seller is required to pay Parent the Company Termination Fee (as defined in the Merger Agreement) pursuant other Party relating to the provisions transactions contemplated hereby, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all Confidential Information and Trade Secrets received by any Party with respect to the other Parties shall be treated in accordance with the Confidentiality Agreement and Section 9.5(b5.2(b);
(b) of the Merger Agreementall filings, Seller willapplications and other submissions made pursuant hereto shall, following such termination and at the time required under Section 9.5(b) option of the Merger AgreementSeller, pay into a joint bank account in the names of Buyer and Parent the termination fee required to be paid pursuant to the terms extent practicable, be withdrawn from the agency or other Person to which made; and
(c) there shall be no liability or obligation hereunder on the part of the Merger AgreementSeller, by wire transfer Buyer or any of same day funds. If their respective directors, officers, employees, Affiliates, Controlling Persons, agents or representatives, except that (i) if this Agreement is terminated by Seller pursuant to Section
7.1 (e), following receipt of written notice from Seller as specified in the Escrow Agreement, the Escrow Agent shall deliver to Seller the Down Payment Amount in accordance with the terms and conditions of the Escrow Agreement (unless Buyer delivers an Objection Notice (as defined therein) in which case such dispute will be resolved as specified in the Escrow Agreement) and receipt by Seller of the Down Payment Amount shall be Seller's sole and exclusive remedy, as liquidated damages, with respect to Buyer's breach of one or more provisions of this Agreement, (ii) if this Agreement is terminated by Buyer pursuant to Section 10.1(g7.1(d) upon as a result of a willful, material breach by Seller of one or following termination more provisions of this Agreement, Seller shall be liable to Buyer for Fifteen Million Dollars ($15,000,000) (the "Seller Amount") as a result of such breach or breaches and the receipt by Buyer of the Merger Agreement under circumstances where Parent is required Seller Amount shall be Buyer's sole and exclusive remedy, as liquidated damages, with respect to pay Seller the Parent Termination Fee (as defined in the Merger Agreement) pursuant to the Seller's breach of one or more provisions of Section 9.5(c) of the Merger this Agreement, Parent will, following such termination and at (iii) the time required obligations provided for payment of the Parent Termination Fee (as defined in the Merger Agreement), pay Buyer the Termination Fee. Seller, Limited Partner and Parent acknowledge that the agreements contained in this Section 10.2 are an integral part 7.2 and Sections 5.6, 9.1, 9.2, 9.3, 9.7 and 9.9 hereof and in the Confidentiality Agreement shall survive any such termination. Buyer and Seller agree that the Down Payment Amount and the Seller Amount, if paid pursuant to this Section 7.2(c), would constitute fair compensation for the commitment of substantial resources and expenses incurred by the recipient pursuant the transactions contemplated by this Agreement. For avoidance of doubt, if the basis of termination of this Agreement is other than under the circumstances described in clause (i) above, neither Seller, nor any of its directors, officers, employees, Affiliates, Controlling Persons, agents or representatives shall be entitled to any damages, losses, or payment from Buyer, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Seller or Parent fails to pay promptly the amount due pursuant to this Section 10.2, and, in order to obtain such payment, Buyer commences a suit which results in a judgment against Seller or Parent, as the case may be, for the fee to be paid by such Party as set forth in this Section 10.2, Seller or Parent, as applicable, will pay to Buyer its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount basis of the fee at termination of this Agreement is other than under the Prime Rate circumstances described in effect on the date the clause (ii) above, neither Buyer, nor any of its directors, officers, employees, Affiliates, Controlling Persons, agents or representatives, shall be entitled to any damages, losses, or payment should have been madefrom Seller.
Appears in 1 contract