Termination Fee; Expense Reimbursement. (a) The Company agrees that in order to compensate Parent for the direct and substantial damages suffered by Parent in the event of termination of this Agreement under certain circumstances, which damages cannot be determined with reasonable certainty, the Company shall pay to Parent the amount of $27 million (the "Termination Fee") if, but only if: (i) (x) Parent shall terminate this Agreement pursuant to Section 7.1(b), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at any time after the date of this Agreement, and (y) prior to the date of the Company Stockholders Meeting a Takeover Proposal shall have been made, and within 12 months of such termination of this Agreement the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent shall terminate this Agreement pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i), 7.5(a)(ii) and 7.5(a)(iii) shall be paid upon the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall the Company be required to pay more than one Termination Fee. (b) The Company agrees to pay Parent its Expenses (as defined below) if, but only if: Parent or the Company shall terminate this Agreement pursuant to Sections 7.1(b), 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "Expenses" shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with this Agreement and the transactions contemplated hereby, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to the financing of the Merger (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of Expenses.
Appears in 1 contract
Termination Fee; Expense Reimbursement. (a) The Company agrees that in order to compensate Parent for the direct and substantial damages suffered by Parent in the event of termination of this Agreement under certain circumstances, which damages cannot be determined with reasonable certaintyIf a Termination Fee Event occurs, the Company shall pay to Parent the amount Purchaser a termination fee of $27 million Three Million Six Hundred Thousand Dollars (US$3,600,000) together with all of the "Termination Fee") if, but only if: (i) (x) Parent shall terminate Purchaser’s costs and expenses incurred in connection with this Agreement pursuant to Section 7.1(b), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at any time after the date of this Agreement, and (y) prior up to the date of termination to a maximum of One Million Dollars (US$1,000,000) (the Company Stockholders Meeting a Takeover Proposal shall have been made, and within 12 months of such termination of this Agreement “Termination Fee”) by wire transfer in immediately available funds to an account specified by the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent shall terminate this Agreement pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h)Purchaser. The Termination Fee shall in each case be payable under Sections 7.5(a)(iat the time specified in Section 7.2(e).
(b) If this Agreement is terminated by the Purchaser pursuant to Section 7.1(c)(iv), 7.5(a)(ii) and 7.5(a)(iii) shall be paid upon then the Company consummating a transaction regarding a Takeover Proposal as described shall, within two Business Days following the date of termination, reimburse the Purchaser for all of the Purchaser Transaction Expenses up to One Million Dollars (US$1,000,000) by wire transfer in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt immediately available funds to an account specified by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(vPurchaser.
(c) shall be paid concurrently upon notice of termination If this Agreement is terminated by the Company pursuant to such Section 7.5(a)(v7.1(d)(iii). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall , then Parent shall, within two Business Days following the aggregate date of termination, reimburse the Company for all of the Termination Fee and Company Transaction Expenses exceed $27 million. Under no circumstances shall up to One Million Dollars (US$1,000,000) by wire transfer in immediately available funds to an account specified by the Company.
(d) If this Agreement is terminated by the Company pursuant to Section 7.1(b)(iv), then the Parent shall, within two Business Days following the relevant date, reimburse the Company for all of the Company Transaction Expenses up to One Million Dollars (US$1,000,000) by wire transfer in immediately available funds to an account specified by the Company.
(e) If this Agreement is terminated by the Parent pursuant to Section 7.1(b)(iv), then the Parent shall, within two Business Days following the relevant date, reimburse the Company for all of the Company Transaction Expenses up to One Million Dollars (US$1,000,000) by wire transfer in immediately available funds to an account specified by the Company, provided, however, that the Parent shall not be required to pay more than one Termination Fee.
(bmake any payment pursuant to this Section 7.2(e) The Company agrees if on the date of such termination pursuant to pay Parent its Expenses (as defined belowSection 7.1(b)(iv) if, but only if: Parent or the Company shall would not have been in a position to terminate this the Agreement pursuant to Sections 7.1(bSection 7.1(b)(iv), 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "Expenses" shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in treating such date as if such date was the aggregate incurred by Parent and its affiliates in connection with this Agreement and the transactions contemplated hereby, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating Business Day immediately prior to the financing of the Merger (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of Outside Date for such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of Expensespurpose.
Appears in 1 contract
Termination Fee; Expense Reimbursement. 8.3.1 In the event that:
(a) The Company agrees this Agreement is terminated by Buyer or Seller, as applicable, in accordance with (i) Section 8.1.3, or (ii) Section 8.1.2 (if terminated by Buyer), or (iii) Section 8.1.5 or (iv) Section 8.1.8(b), then in any of such cases, Seller shall pay Buyer by wire transfer of immediately available funds, to the account specified by Buyer to Seller in writing, the Termination Fee and Expense Reimbursement, and Seller and Buyer agree that neither the Expense Reimbursement nor the Termination Fee is a penalty, but rather is liquidated damages in order to a reasonable amount that will compensate Parent Buyer for the direct time and substantial damages suffered by Parent in the event of termination effort associated with initial due diligence and negotiation of this Agreement under certain circumstancesand the opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herein; provided that, if this Agreement is terminated pursuant to clause (i) above, the Termination Fee and Expense Reimbursement shall be paid on the earlier of (a) the date the Alternative Transaction is consummated and (b) the termination of the definitive agreement contemplating such Alternative Transaction; provided, further, that, if this Agreement is terminated pursuant to clauses (ii), (iii) or (iv) above, the Termination Fee and Expense Reimbursement shall be paid within five (5) Business Days of the date of such termination;
(b) this Agreement is otherwise terminated by Buyer in accordance with Section 8.1.4 then Seller shall promptly pay Buyer by wire transfer of immediately available funds to an account specified by Buyer to Seller in writing, and Buyer shall be deemed to have earned, the Expense Reimbursement, which damages canshall be paid within five (5) Business Days of the date of such termination; and
(c) the obligations of Seller to pay the Termination Fee and Expense Reimbursement as provided in this Section 8.3 shall be (i) entitled to superpriority administrative expense status with priority over any and all administrative expenses of the kind specified in Sections 503(b)(1) and 507(a) of the Bankruptcy Code in Seller’s Chapter 11 Cases, subject only to the superiority claims set forth in the DIP Financing Order in an amount not be determined with reasonable certainty, the Company shall pay to Parent exceed the amount of $27 million outstanding DIP Loans (the "Termination Fee") if, but only if: (i) (x) Parent shall terminate this Agreement pursuant to Section 7.1(bas defined therein), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company if triggered, shall terminate this Agreement pursuant to Section 7.1(e)be payable from the proceeds of any Alternative Transaction for the Purchased Assets, and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of at the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at any time after the date of this Agreement, and (y) prior to the date of the Company Stockholders Meeting a Takeover Proposal shall have been made, and within 12 months closing of such termination Alternative Transaction, free and clear of this Agreement all liens (including those arising under the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent DIP Financing Order).
8.3.2 Seller shall terminate this Agreement pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i), 7.5(a)(ii) and 7.5(a)(iii) shall be paid upon the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate seek approval of the Termination Fee and Expenses exceed $27 millionthe Expense Reimbursement from the Bankruptcy Court in the Bidding Procedures Order. Under no circumstances shall The Parties acknowledge and agree that the Company be required terms and conditions set forth in this Section 8.3 with respect to pay more than one the payment of the Termination Fee.
(b) The Company agrees Fee and Expense Reimbursement are subject to pay Parent its Expenses (as defined below) ifthe Bankruptcy Court entering the Bidding Procedures Order, but only if: Parent or the Company shall it being understood that Buyer may terminate this Agreement pursuant to Sections 7.1(bif the Bankruptcy Court does not approve the Termination Fee and Expense Reimbursement contemplated hereby (including the contemplated priority change in respect thereof), 7.1(e), 7.1(f), 7.1(gin which case the Deposit (plus all accrued interest or earnings thereon) or Section 7.1(h)shall be forthwith returned to Buyer. The term "Expenses" shall mean all actual Parties acknowledge that the agreements contained in this Section 8.3 are commercially reasonable and documented out-of-pocket expenses an integral part of the transactions, and that without these agreements, the Parties would not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with enter into this Agreement and or consummate the transactions contemplated hereby. For the avoidance of doubt, includingbut subject to Section 7.2, without limitationthe covenants set forth in this Section 8.3 are continuing obligations, fees separate and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to independent from the financing other obligations of the Merger Parties expressly set forth in this Agreement (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lendersshall not limit the Parties’ other rights expressly set forth in this Agreement), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of survive termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of ExpensesAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (NanoString Technologies Inc)
Termination Fee; Expense Reimbursement. (a) The Company agrees that in order to compensate Parent and Merger Sub for the direct and substantial damages suffered by Parent them in the event of termination of this Agreement under certain circumstances, which damages cannot be determined with reasonable certainty, the Company shall pay to Parent a termination fee on the amount of $27 million following terms and conditions (the "“Termination Fee") if, but only if: ”): (i) (x) Parent shall terminate if this Agreement is terminated by the Company pursuant to Section 7.1(b7.1(g), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) or by Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at any time after or Section 7.1(h), the date Company shall pay to Parent, concurrently with such termination, a Termination Fee in an amount equal to the sum of this Agreement, (x) $500,000 and (y) prior to the date amount of the Company Stockholders Meeting a Takeover Proposal shall have been made, Parent’s and within 12 months of such termination of this Agreement the Company enters into a definitive agreement with respect to, Merger Sub’s reasonable professional and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent shall terminate this Agreement pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i), 7.5(a)(ii) advisory fees and 7.5(a)(iii) shall be paid upon the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall the Company be required to pay more than one Termination Fee.
(b) The Company agrees to pay Parent its Expenses (as defined below) if, but only if: Parent or the Company shall terminate this Agreement pursuant to Sections 7.1(b), 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "Expenses" shall mean all actual and documented other out-of-pocket expenses not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with the transactions contemplated by this Agreement and the transactions contemplated herebyfinancing thereof, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to the financing of the Merger (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be not previously paid concurrently with notice of termination of this Agreement by the Company as contemplated by Section 8.12 hereof; and (ii) if this Agreement is terminated by either the Company or Parent pursuant to any other clause of Section 7.1, the Company shall pay to Parent, as concurrently with such termination, a Termination Fee equal to the case may beamount, up to an aggregate maximum of $500,000, of Parent’s and submission of appropriate documentation of such Merger Sub’s reasonable professional and advisory fees and other out-of-pocket expenses. Under no circumstances shall expenses incurred in connection with the transactions contemplated by this Agreement and the financing thereof, and not previously paid by the Company as contemplated by Section 8.12 hereof.
(b) All payments under this Section 7.5 shall be made by wire transfer of immediately available funds to an account designated by Parent to the Company.
(c) The Company acknowledges that the agreements contained in this Section 7.5 are an integral part of the transactions contemplated by this Agreement, and that without these agreements Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to promptly pay to Parent any amounts owing pursuant to this Section 7.5 when due, the Company shall in addition thereto pay to Parent all costs and expenses (including fees and disbursements of counsel) incurred in collecting such amounts, together with interest on such amounts (or any unpaid portion thereof) from the date such payment was required to pay more than one be made until the date such payment is received by Parent at the prime rate as in effect from time to time during such period as published in the Wall Street Journal. Payment of Expensesthe Termination Fee described in this Section 7.5 shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company for any damages suffered or incurred by either of them in connection with a termination of this Agreement, except for a termination due to the Company’s willful breach of its obligations under this Agreement. It is specifically agreed by all the parties hereto that the amount to be paid to Parent pursuant to this Section 7.5 represents reasonable liquidated damages and is not a penalty.
Appears in 1 contract
Samples: Merger Agreement (PDS Gaming Corp)
Termination Fee; Expense Reimbursement.
(a) The Company agrees that in order to compensate Parent for the direct and substantial damages suffered by Parent in the event of termination of this Agreement under certain circumstances, which damages cannot be determined with reasonable certainty, the Company shall pay to Parent the amount of $27 million (the "Termination Fee") if, but only if: If (i) (x) Parent shall terminate this Agreement is terminated for any reason other than by a Seller pursuant to Section 7.1(b9.01(c)(i), then, in any such case, Sellers shall, jointly and (y) prior severally, without the requirement of any notice or demand from Buyer or any application to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months or order of the termination of this AgreementBankruptcy Court, the Company enters into a definitive agreement with respect topromptly, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at any time but in no event later than three Business Days after the date of this Agreementsuch termination, pay or cause to be paid to Buyer all reasonable out-of-pocket and documented fees and expenses (including reasonable attorneys’ fees and expenses) incurred by Buyer in connection with or related to Buyer’s evaluation, consideration, analysis, negotiation, and (y) prior to the date of the Company Stockholders Meeting a Takeover Proposal shall have been made, and within 12 months of such termination documentation of this Agreement or the Company enters into a definitive agreement with respect totransactions contemplated herein, and thereafter consummatesin an amount not to exceed $250,000 in the aggregate (the “Expense Reimbursement”), a transaction regarding such Takeover Proposal; (ivii) Parent shall terminate this Agreement is terminated by Buyer or automatically pursuant to Section 7.1(g)9.01(l) then, in any such case, Sellers shall, jointly and severally, without the requirement of any notice or demand from Buyer or any application to or order of the Bankruptcy Court, pay or cause to be paid to Buyer a fee in an amount equal to 5% of the Purchase Price (the “Termination Fee”) in addition to the Expense Reimbursement upon Sellers consummating a Competing Transaction by wire transfer of immediately available funds to such account or accounts as may be specified in a written notice by Buyer given to Sellers. The Expense Reimbursement and the Termination Fee shall, pursuant to the Bidding Procedures Order, constitute allowed administrative expenses of Sellers’ estates under Section 503(b) of the Bankruptcy Code; or (v) the Company terminates provided, however, that notwithstanding any provision of this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i)the contrary, 7.5(a)(ii) the Expense Reimbursement and 7.5(a)(iii) shall be paid upon the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced payable only from the proceeds of a Competing Transaction. The Bidding Procedures Order shall provide for the payment by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate Sellers of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall Expense Reimbursement (prior to the Company be required to pay more than one Termination Feerepayment of the obligations owed on account of any prepetition secured financing) as and when such amounts are due and payable hereunder.
(b) The Company agrees Each of the parties to pay Parent its Expenses (as defined below) if, but only if: Parent or the Company shall terminate this Agreement pursuant to Sections 7.1(b), 7.1(e), 7.1(f), 7.1(g) or acknowledges and agrees that the agreements contained in this Section 7.1(h). The term "Expenses" shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in 9.04 are an integral part of the aggregate incurred transactions contemplated by Parent and its affiliates in connection with this Agreement and that, without these agreements, the other parties would not enter into this Agreement. Each of the parties further acknowledges that the payment by Sellers of the Termination Fee and the Expense Reimbursement is not a penalty, but rather liquidated damages in a reasonable amount that will compensate Buyer, together with any additional damages to which Buyer may be entitled hereunder, in the circumstances in which such Termination Fee and Expense Reimbursement is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyherein, includingwhich amount would otherwise be impossible to calculate with precision. Without limiting in any way Buyer’s rights set forth in the DIP Loan Agreement, without limitationXxxxx’s receipt in full of the Termination Fee and the Expense Reimbursement, fees together with interest or collection expenses, if any, due and expenses payable as provided herein, shall be the sole and exclusive monetary remedy of accountantsBuyer against Sellers, attorneys and financial advisorsSellers shall have no further liability or obligation, all costs of Parent and its affiliates under this Agreement or relating to or arising out of any such breach of this Agreement or failure to consummate the financing transactions contemplated herein. The obligations to return the Deposit Amount and pay the Termination Fee and Expense Reimbursement in accordance with the provisions of this Section 9.04 will (i) be binding upon and enforceable against each Seller immediately upon the Bankruptcy Court’s entering the Bidding Procedures Order, (ii) not be terminable or dischargeable thereafter for any reason, (iii) survive any subsequent conversion or dismissal or consolidation of the Merger Bankruptcy Case, any plan of reorganization or liquidation in such case, and (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(biv) shall be paid concurrently with notice of survive the subsequent termination of this Agreement by any means. The obligations to return the Company or ParentDeposit Amount and pay Buyer the Termination Fee and Expense Reimbursement, as the case may and when required under this Agreement, are intended to be, and submission upon entry of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of Expenses.Bidding Procedures Order are, binding upon (A) each Seller,
Appears in 1 contract
Samples: Asset Purchase Agreement
Termination Fee; Expense Reimbursement. (a) The Company agrees that in order If this Agreement is terminated (or is deemed to compensate Parent for the direct and substantial damages suffered be terminated) (x) by Parent pursuant to Section 8.1(h) or Section 8.1(m), (y) by the Company pursuant to Section 8.1(j), or (z) by the Company or Parent pursuant to Section 8.1(d) or by Parent pursuant to Section 8.1(g), and in each case of this clause (z), (A) at any time on or after the event date of this Agreement and prior to any such termination of this Agreement under certain circumstancesa Company Acquisition Proposal shall have been publicly announced or otherwise communicated to a member of senior management or any director of the Company (or any Third Party shall have publicly announced or communicated a bona fide intention, whether or not conditional, to make a Company Acquisition Proposal) that has not been withdrawn prior to the taking of the vote of the stockholders of the Company at the Company Stockholders’ Meeting or, in the event no such vote has been taken, at the time of such termination of this Agreement, and (B) within 12 months following the date of such termination of this Agreement, (i) with respect to a termination (or deemed termination) pursuant to Section 8.1(d), (1) any Company Acquisition Transaction (regardless of when the applicable Company Acquisition Proposal was made) is consummated or (2) a definitive agreement with respect to any Company Acquisition Transaction is entered into or the Company’s Board of Directors shall have recommended a Company Acquisition Transaction to its stockholders (in the case of this clause (2), which damages cannot Company Acquisition Transaction shall thereafter be determined consummated (regardless of whether within or outside of such 12-month period)), or (ii) with reasonable certaintyrespect to a termination (or deemed termination) pursuant to Section 8.1(g), (1) a Company Acquisition Transaction is consummated with the Person or group who made the Company Acquisition Proposal described in clause (A) above (or any group to which such Person or group forms a part) or (2) a definitive agreement with respect to a Company Acquisition Transaction is entered into with the Person or group who made the Company Acquisition Proposal described in clause (A) above (or any group to which such Person or group forms a part) or the Company’s Board of Directors shall have recommended to its stockholders a Company Acquisition Transaction with the Person or group who made the Company Acquisition Proposal described in clause (A) above (or any group to which such Person or group forms a part) (in the case of this clause (2), which Company Acquisition Transaction shall thereafter be consummated (regardless of whether within or outside of such 12-month period)) (provided, that for purposes of this clause (z), each reference to “20%” in the definition of Company Acquisition Transaction shall be deemed to be a reference to “50%”), then in each case of clauses (x), (y) and (z), the Company shall pay to Parent the amount Company Termination Fee (less any Company Expense Reimbursements to the extent previously paid) in immediately available funds (1) in the case of $27 million (the "Termination Fee") if, but only if: (i) clause (x) Parent shall terminate this Agreement pursuant to Section 7.1(b)above, and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the two Business Days after termination of this Agreement, (2) in the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and case of clause (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the above, upon termination of this Agreement, or (3) in the case of clause (z) above, upon the consummation of such Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; Acquisition Transaction.
(iiib) If this Agreement is terminated (or is deemed to be terminated) (x) Parent or by the Company shall terminate this Agreement pursuant to Section 7.1(f8.1(i) or Section 8.1(l), (y) by Parent pursuant to Section 8.1(k) or (z) by the Company or Parent pursuant to Section 8.1(e) or by the Company pursuant to Section 8.1(f), and in each case of this clause (z), (A) at any time on or after the date of this Agreement and prior to any such termination of this Agreement a Parent Acquisition Proposal shall have been publicly announced or otherwise communicated to a member of senior management or any director of Parent (or any Third Party shall have publicly announced or communicated a bona fide intention, whether or not conditional, to make a Parent Acquisition Proposal) that has not been withdrawn prior to the taking of the vote of the stockholders of Parent at the Parent Stockholders’ Meeting or, in the event no such vote has been taken, at the time of such termination of this Agreement, and (yB) prior to the date of the Company Stockholders Meeting a Takeover Proposal shall have been made, and within 12 months following the date of such termination of this Agreement Agreement, (i) with respect to a termination (or deemed termination) pursuant to Section 8.1(e), (1) any Parent Acquisition Transaction (regardless of when the Company enters into applicable Parent Acquisition Proposal was made) is consummated, or (2) a definitive agreement with respect toto any Parent Acquisition Transaction is entered into or Parent’s Board of Directors shall have recommended a Parent Acquisition Transaction to its stockholders (in the case of this clause (ii), and which Parent Acquisition Proposal shall thereafter consummatesbe consummated (regardless of whether within or outside of such 12-month period)), or (ii) with respect to a transaction regarding such Takeover Proposal; termination (ivor deemed termination) Parent shall terminate this Agreement pursuant to Section 7.1(g8.1(f); , (1) a Parent Acquisition Transaction is consummated with the Person or group who made the Company Acquisition Proposal described in clause (A) above (or any group to which such Person or group forms a part) or (v2) a definitive agreement with respect to a Parent Acquisition Transaction is entered into with the Company terminates Person or group who made the Parent Acquisition Proposal described in clause (A) above (or any group to which such Person or group forms a part) or the Parent’s Board of Directors shall have recommended to its stockholders a Parent Acquisition Transaction with the Person who made the Parent Acquisition Proposal described in clause (A) above (or any group to which such Person or group forms a part) (in the case of this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(iclause (2), 7.5(a)(iiwhich Parent Acquisition Transaction shall thereafter be consummated (regardless of whether within or outside of such 12-month period)) and 7.5(a)(iii) (provided, that for purposes of this clause (z), each reference to “20%” in the definition of Parent Acquisition Transaction shall be paid upon the Company consummating deemed to be a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(yreference to “50%”), 7.5(a)(ii)(y) and 7.5(a)(iii)(ythen in each case of clauses (x), respectively. The Termination Fee payable under Sections 7.5(a)(iv(y) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall the Company be required to pay more than one Termination Fee.
(b) The Company agrees to pay Parent its Expenses (as defined below) if, but only if: Parent or the Company shall terminate this Agreement pursuant to Sections 7.1(b), 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "Expenses" shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with this Agreement and the transactions contemplated hereby, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to the financing of the Merger (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of Expenses.and
Appears in 1 contract
Termination Fee; Expense Reimbursement. (a) The Company agrees that in order to compensate Parent for the direct and substantial damages suffered by Parent in the event of termination of If this Agreement under certain circumstancesis terminated by Seller pursuant to Section 10.1(g), which damages cannot be determined with reasonable certainty, the Company then Purchaser shall pay to Parent the Seller an amount of equal to Fifteen Million Dollars ($27 million 15,000,000) (the "“Termination Fee"”). In the event the Termination Fee is payable, such fee will be paid to Seller by Purchaser in immediately available funds within five (5) if, but only if: Business Days after the date this Agreement is terminated.
(b) If this Agreement is terminated by (i) Seller pursuant to Section 10.1(c) or (xii) Parent shall either Seller or Purchaser pursuant to Section 10.1(b) and at the time of such termination Seller had the right to terminate this Agreement pursuant to Section 7.1(b10.1(c), then Seller and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; shall reimburse Purchaser promptly upon demand (iibut in any event within five (5) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at any time Business Days after the date of such demand), by wire transfer of immediately available funds, the aggregate amount of all Purchaser Expense; provided, that Seller and the Company shall not be obligated to reimburse Purchaser pursuant to this Section 10.2(b) an amount in excess of Two Million Dollars ($2,000,000).
(c) The Parties acknowledge and agree 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, the other Parties would not enter into this Agreement. If the applicable Party fails to promptly pay any amounts as may be required by Section 10.2 and the Party entitled to receive such payment commences a Proceeding in order to obtain such payment and such Proceeding results in the entry of an Order against the applicable Party requiring such payment to be made, the paying Party shall pay to the receiving Party the amount of such payment and the receiving Party’s costs and expenses (yincluding reasonable and documented attorneys’ fees) prior in connection with such Proceeding, in each case plus interest at the prime rate of interest reported in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment.
(d) Notwithstanding anything to the Company Stockholders Meeting a Takeover Proposal shall have been madecontrary in this Agreement, and within 12 months for the avoidance of such termination of this Agreement the Company enters into a definitive agreement with respect todoubt, and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent shall terminate this Agreement pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i), 7.5(a)(ii) and 7.5(a)(iii) shall be paid upon the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate Purchaser be required to make (and in no event shall Seller be entitled to receive) more than one payment of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall the Company be required to pay more than one Termination Fee.
(b) The Company agrees to pay Parent its Expenses (as defined below) if, but only if: Parent or the Company shall terminate this Agreement pursuant to Sections 7.1(b), 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "Expenses" shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with this Agreement and the transactions contemplated hereby, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to Termination Fee shall only be payable following the financing of the Merger (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of ExpensesAgreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Distribution Solutions Group, Inc.)
Termination Fee; Expense Reimbursement. 8.3.1 In the event that:
(a) The Company agrees that this Agreement is terminated by Buyer or Seller, as applicable, in order accordance with (i) Section 8.1.3; (ii) Section 8.1.6 if (A) any of Seller’s actions or failures to compensate Parent for fulfill any obligation under this Agreement has contributed to the direct failure of the Closing to occur on or before the Outside Date, and substantial damages suffered such actions or failures to perform constituted a breach of this Agreement in any material respect, or (B) any of the conditions in Section 6.2.7 has not been satisfied as of the time of such termination, if on the date of termination all of the other conditions set forth in Article 6 have been satisfied or have been waived (other than those conditions that, by Parent in their nature, can only be satisfied as of the event Closing Date, but which would be satisfied as of the Closing Date); (iii) Section 8.1.2 (due to a breach by Seller), Section 8.1.4(b), Section 8.1.4(c), or Section 8.1.5; (iv) Section 8.1.7 if a termination fee and expense reimbursement are payable by Seller or its Affiliates under the Canadian Purchase Agreement as a result of the termination thereof, or (v) other termination of this Agreement at a time when this Agreement was terminable under certain circumstancesany of the circumstances set forth under subsections (i), which damages cannot be determined with reasonable certainty(ii), (iii) or (iv) of this Section 8.3.1(a), then in any of such cases, Seller shall pay Buyer by wire transfer of immediately available funds, to the account specified by Buyer to Seller in writing, the Company shall pay to Parent Termination Fee and Expense Reimbursement, and Seller and Buyer agree that neither the amount of $27 million (Expense Reimbursement nor the "Termination Fee") ifFee is a penalty, but only if: rather is liquidated damages in a reasonable amount that will compensate Buyer for the time and effort associated with initial due diligence and negotiation of this Agreement and the opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herein. If this Agreement is terminated pursuant to clause (i) (x) Parent above, the Termination Fee and Expense Reimbursement shall terminate be paid by the earlier of 21 days after such termination and the date the Alternative Transaction is consummated. If this Agreement is terminated pursuant to clause (ii), (iii), (iv) or (v) above, the Termination Fee and Expense Reimbursement shall be paid within three Business Days of the date of such termination; or
(b) this Agreement is otherwise terminated by Buyer in accordance with Section 8.1.4(a) or Section 8.1.6, (other than as a result of the failure of Buyer to satisfy or waive the condition set out in Section 6.2.6) or Section 8.1.7 (if expense reimbursement is payable under the Canadian Purchase Agreement as a result of the termination thereof) then Seller shall promptly (and in any event within three (3) Business Days of such event) pay Buyer by wire transfer of immediately available funds to an account specified by Buyer to Seller in writing, and Buyer shall be deemed to have earned, the Expense Reimbursement, which shall be paid within three (3) Business Days of the date of such termination.
(c) The obligations of Seller to pay the Termination Fee and Expense Reimbursement as provided herein shall be (i) entitled to superpriority administrative expense status with priority over any and all administrative expenses of the kind specified in Sections 503(b)(1) and 507(a) of the Bankruptcy Code in Seller’s Chapter 11 Case and (ii) if triggered, shall be payable from the proceeds of any Alternative Transaction for the Purchased Assets, at the closing of such Alternative Transaction, free and clear of all liens (including those arising under the DIP Financing Order).
(d) Seller agrees and acknowledges that Buyer’s due diligence, efforts, negotiation, and execution of this Agreement have involved substantial investment of management time and have required significant commitment of financial, legal, and other resources by Buyer and its Affiliates and that such due diligence, efforts, negotiation, and execution have provided value to Seller.
8.3.2 If this Agreement is terminated by Seller pursuant to Section 7.1(b)8.1.2, and (y) prior Buyer shall direct the Escrow Agent to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months disburse the Deposit to Seller in accordance with the terms of the termination of this Deposit Escrow Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(f) at . Upon any time after the date of this Agreement, and (y) prior to the date of the Company Stockholders Meeting a Takeover Proposal shall have been made, and within 12 months of such termination of this Agreement the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent shall terminate this Agreement other than termination by Seller pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i8.1.2), 7.5(a)(ii) Seller shall direct the Escrow Agent to disburse the Deposit to Buyer in accordance with the terms of the Escrow Agreement.
8.3.3 The Parties acknowledge and 7.5(a)(iii) shall be paid upon agree that the Company consummating a transaction regarding a Takeover Proposal as described terms and conditions set forth in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by this Section 8.3 with respect to the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate payment of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall Expense Reimbursement are subject to the Company be required to pay more than one Termination Fee.
(b) The Company agrees to pay Parent its Expenses (as defined below) ifBankruptcy Court entering the Bidding Procedures Order, but only if: Parent or the Company shall it being understood that Buyer may terminate this Agreement pursuant to Sections 7.1(bif the Bankruptcy Court does not approve the Termination Fee and Expense Reimbursement contemplated hereby (including the contemplated priority change in respect thereof), 7.1(e), 7.1(f), 7.1(gin which case the Deposit (plus all accrued interest or earnings thereon) or Section 7.1(h)shall be forthwith returned to Buyer. The term "Expenses" shall mean all actual Parties acknowledge that the agreements contained in this Section 8.3 are commercially reasonable and documented out-of-pocket expenses an integral part of the transactions, and that without these agreements, the Parties would not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with enter into this Agreement and or consummate the transactions contemplated hereby. For the avoidance of doubt, includingbut subject to Section 7.2, without limitationthe covenants set forth in this Section 8.3 are continuing obligations, fees separate and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to independent from the financing other obligations of the Merger Parties expressly set forth in this Agreement (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lendersshall not limit the Parties’ other rights expressly set forth in this Agreement), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of survive termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of ExpensesAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)
Termination Fee; Expense Reimbursement. (a) The Company agrees that If (i) this Agreement is terminated for any reason other than by Sellers pursuant to Section 4.4(d), then, in any such case, Sellers shall, jointly and severally, without the requirement of any notice or demand from Purchaser or any application to or order of the Bankruptcy Court, promptly, but in no event later than three Business Days after the date of such termination, pay or cause to compensate Parent for the direct be paid to Purchaser all reasonable out-of-pocket and substantial damages suffered documented fees and expenses (including reasonable attorneys’ fees and expenses) incurred by Parent Purchaser in the event of termination connection with or related to Purchaser’s evaluation, consideration, analysis, negotiation, and documentation of this Agreement under certain circumstancesor the Transactions, which damages canin an amount not be determined with reasonable certainty, to exceed $1,000,000.00 in the Company shall pay to Parent the amount of $27 million aggregate (the "Termination Fee") if, but only if: (i) (x) Parent shall terminate this Agreement pursuant to Section 7.1(b“Expense Reimbursement”), and (yii) this Agreement is terminated (A) by Purchaser pursuant to Section 4.4(c), and prior to such termination termination, any Seller has taken any action that results in a Takeover Proposal shall have been made and not withdrawn and within 12 months breach, in any material respect, of the termination of this Agreementany covenant set forth in Section 7.1, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iiB) (x) Parent by Purchaser or Company shall terminate this Agreement Sellers pursuant to Section 7.1(e4.4(f), and (yC) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall terminate this Agreement by Purchaser pursuant to Section 7.1(f4.4(g), Section 4.4(h), Section 4.4(j), Section 4.4(k), Section 4.4(l) at any time after the date of this Agreement, and (y) prior to the date of extent Purchaser has not elected to act as the Company Stockholders Meeting a Takeover Proposal shall have been madeBack-UpBackup Bidder (as defined in the Bidding Procedures Order)), and within 12 months of such termination of this Agreement the Company enters into a definitive agreement with respect toor Section 4.4(m), and thereafter consummates, a transaction regarding such Takeover Proposal; or (ivD) Parent shall terminate this Agreement automatically pursuant to Section 7.1(g4.4(n); , then, in any such case, Sellers shall, jointly and severally, without the requirement of any notice or demand from Purchaser or any application to or order of the Bankruptcy Court, pay or cause to be paid to Purchaser the Termination Fee (vin addition to the Expense Reimbursement) upon Sellers consummating a Competing Transaction by wire transfer of immediately available funds to such account or accounts as may be specified in a written notice by Purchaser given to Sellers in accordance with Section 11.8. The Expense Reimbursement and the Company terminates this Agreement Termination Fee shall, pursuant to Section 7.1(h). The Termination Fee payable the Bidding Procedures Order, constitute allowed administrative expenses of Sellers’ estates under Sections 7.5(a)(i)503(b) of the Bankruptcy Code; provided, 7.5(a)(ii) and 7.5(a)(iii) shall be paid upon however, that the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced payable only from the proceeds of a Competing Transaction. The Bidding Procedures Order shall provide for the payment by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate Sellers of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall Expense Reimbursement (prior to the Company be required to pay more than one Termination Feerepayment of the obligations owed on account of any prepetition secured financing) as and when such amounts are due and payable hereunder.
(b) The Company Each of the Parties acknowledges and agrees to pay Parent its Expenses (as defined below) ifthat the agreements contained in this Section 4.7 are an integral part of the Transactions and that, without these agreements, the other Parties would not enter into this Agreement. Each of the Parties further acknowledges that the payment by Sellers of the Termination Fee and the Expense Reimbursement is not a penalty, but only if: Parent or the Company shall terminate this Agreement pursuant rather liquidated damages in a reasonable amount that will compensate Purchaser, together with any additional damages to Sections 7.1(b)which Purchaser may be entitled hereunder, 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "Expenses" shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in the aggregate incurred by Parent circumstances in which such Termination Fee and its affiliates in connection with Expense Reimbursement is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the transactions contemplated herebyexpectation of the consummation of the Transactions, includingwhich amount would otherwise be impossible to calculate with precision. Without limiting in any way Purchaser’s rights set forth in Section 4.7(c), without limitationPurchaser’s receipt in full of the Termination Fee and the Expense Reimbursement, fees together with interest or collection expenses, if any, due and expenses payable as provided herein, shall be the sole and exclusive monetary remedy of accountantsPurchaser against Sellers, attorneys and financial advisorsSellers shall have no further liability or obligation, all costs of Parent and its affiliates under this Agreement or relating to or arising out of any such breach of this Agreement or failure to consummate the financing Transactions. The obligations to return the Deposit Amount and pay the Termination Fee and Expense Reimbursement in accordance with the provisions of this Section 4.7 will (i) be binding upon and enforceable against each Seller immediately upon the Bankruptcy Court’s entering the Bidding Procedures Order, (ii) not be terminable or dischargeable thereafter for any reason, (iii) survive any subsequent conversion, dismissal or consolidation of the Merger Bankruptcy Cases, any plan of reorganization or liquidation in the Bankruptcy Cases, and (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(biv) shall be paid concurrently with notice of survive the subsequent termination of this Agreement by any means. The obligations to return the Company or ParentDeposit Amount and pay Purchaser the Termination Fee and Expense Reimbursement, as the case may and when required under this Agreement, are intended to be, and submission upon entry of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of Expenses.Bidding Procedures Order are, binding upon (A) each Seller,
Appears in 1 contract
Samples: Asset Purchase Agreement
Termination Fee; Expense Reimbursement. (a) The Company agrees that in order to compensate Parent for the direct and substantial damages suffered by Parent in the event of termination of this Agreement under certain circumstances, which damages cannot be determined with reasonable certainty, the Company shall pay to Parent the amount of $27 million (the "“Termination Fee"”) if, but only if: (i) (x) Parent shall terminate this Agreement pursuant to Section 7.1(b), and (y) prior to such termination suchtermination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (ii) (x) Parent or Company shall terminate this Agreement pursuant to Section 7.1(e), and (y) prior to such termination a Takeover Proposal shall have been made and not withdrawn and within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iii) (x) Parent or Company shall Companyshall terminate this Agreement pursuant to Section 7.1(f) at any time after the date thedate of this Agreement, and (y) prior to the date of the Company Stockholders Meeting StockholdersMeeting a Takeover Proposal shall have been made, and within 12 months of such termination of this Agreement the Company enters into a definitive agreement with respect to, and thereafter consummates, a transaction regarding such Takeover Proposal; (iv) Parent shall terminate this Agreement pursuant to Section 7.1(g); or (v) the Company terminates this Agreement pursuant to Section 7.1(h). The Termination Fee payable under Sections 7.5(a)(i), 7.5(a)(ii) and 7.5(a)(iii) shall be paid upon the Company consummating a transaction regarding a Takeover Proposal as described in Sections 7.5(a)(i)(y), 7.5(a)(ii)(y) and 7.5(a)(iii)(y), respectively. The Termination Fee payable under Sections 7.5(a)(iv) shall be paid concurrently upon receipt by the Company of notice of termination by Parent pursuant to such Section 7.5(a)(iv). The Termination Fee payable under Sections 7.5(a)(v) shall be paid concurrently upon notice of termination by the Company pursuant to such Section 7.5(a)(v). The Termination Fee shall be reduced by any Expenses paid under Section 7.5(b) so that in no event shall the aggregate of the Termination Fee and Expenses exceed $27 million. Under no circumstances shall the Company be required to pay more than one Termination Fee.
(b) The Company agrees to pay Parent its Expenses (as defined below) if, but only if: Parent or the Company shall terminate this Agreement pursuant to Sections 7.1(b), 7.1(e), 7.1(f), 7.1(g) or Section 7.1(h). The term "“Expenses" ” shall mean all actual and documented out-of-pocket expenses not exceeding $10 million in the aggregate incurred by Parent and its affiliates in connection with this Agreement and the transactions contemplated hereby, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, all costs of Parent and its affiliates relating to the financing of the Merger (including, without limitation, advisory and commitment fees and reasonable fees and expenses of counsel to potential lenders), costs and expenses otherwise borne by Parent and its affiliates pursuant to Section 5.9. The Expenses payable under Section 7.5(b) shall be paid concurrently with notice of termination of this Agreement by the Company or Parent, as the case may be, and submission of appropriate documentation of such out-of-pocket expenses. Under no circumstances shall the Company be required to pay more than one payment of Expenses.
Appears in 1 contract
