Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii), then the Company shall pay to Parent (in the case of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, by Parent of its obligations hereunder, provided that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Berkshire Hathaway Inc), Agreement and Plan of Merger (Berkshire Hathaway Inc)
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. (a) In the event that (Ai) this Agreement is terminated pursuant to Section 9.01(c)(iv) or 9.01(e); or (ii) (x) a Takeover Proposal Company Third Party Acquisition Offer shall have been made known to the Company or and shall have become known publicly, (y) this Agreement shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii9.01(b), 9.01(c)(i) hereof oror 9.01(d)(i) (in each case, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none other than by reason of the events described failure of the conditions set forth in paragraphs (aany of Sections 8.01(b), (b), c) or (d) and (e) to be fulfilled or the failure of Annex A shall have occurred so as the conditions set forth in Section 8.03 to result in a condition to the Offer not being satisfiedbe fulfilled), or pursuant to Section 7.1(b)(ii9.01(c)(ii) hereofor 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2,250,000, in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of either clause Section 9.03(a)(i), upon termination of this Agreement, and (Iy) or (II) such Takeover Proposal is consummated within one (1) year in the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination or (B) of this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to any paragraph of Section 7.1(c)(ii9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), then the Company shall pay to Parent a "COMPANY THIRD PARTY ACQUISITION" means (in the case of i) a termination transaction pursuant to Section 7.1(c)(ii)any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, prior to exchange offer or simultaneously with such terminationotherwise, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposalii) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, merger or other business combination (other than a willful with Buyer or intentional breachBuyer Subsidiary) in which, by Parent of its obligations hereunderimmediately after giving effect thereto, provided that no payment made by shareholders other than the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights shareholders of the Company in respect thereofimmediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cantel Medical Corp), Agreement and Plan of Merger (Diker Charles M)
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such event such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii), then the Company shall pay to Parent (in the case of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such the termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 15 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated herebycash. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, by Parent of its obligations hereunder, provided that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wesco Financial Corp)
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that (Aa) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention If (whether or not conditionali) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii9.1(c)(iv) hereof oror 9.1(e); or (ii) (x) a Company Third-Party Acquisition Offer shall have become known publicly prior to the termination of this Agreement, (IIy) if the Offer has remained open for at least 20 business days and the Minimum Condition has not this Agreement shall have been satisfied terminated pursuant to Section 9.1(b), 9.1(c)(i) or 9.1(d)(i) (and none in each case, other than by reason of the events described failure of the conditions set forth in paragraphs (aany of Section 8.1(b), (bc), (d) and or (e) e)to be fulfilled or the failure of Annex A shall have occurred so as the conditions set forth in Section 8.3 to result in a condition to the Offer not being satisfiedbe fulfilled), or pursuant to Section 7.1(b)(ii9.1(c)(ii) hereofor 9.1(d)(ii) and (z) within six months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third-Party Acquisition (defined below), and in provided that the case of either clause (ICompany did not otherwise have the right to terminate the Agreement pursuant to Sections 9.1(d)(iv) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii9.1(d)(v), then the Company shall pay to Parent (in the case of Buyer a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 1.6 million in cash and shall reimburse Parent's (the “Termination Fee”), plus an amount, in cash (the “Buyer Expense Reimbursement Amount”), not to exceed $750,000, equal to all documented out-of-pocket expensesexpenses and fees incurred by Buyer (including fees and expenses payable to all legal, including attorneys' feesaccounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement and Agreement, the Merger or the transactions contemplated herebyby this Agreement. The fee arrangement contemplated hereby is the sole remedy hereunder and Termination Fee shall be paid pursuant by wire transfer of same day funds to an account designated by Buyer (x) in the case of Section 9.3(a)(i), upon termination of this Agreement, and (y) in the case of Section 7.3 regardless 9.3(a)(ii), upon the earlier of any alleged breach, other than such entry into an agreement with respect to a willful Company Third-Party Acquisition or intentional breach, by Parent such consummation of its obligations hereunder, provided that no payment made a Company Third-Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to this any paragraph of Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights 9.1 that requires payment of the Company Termination Fee upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. The Buyer Expense Reimbursement Amount shall be paid in respect thereof.accordance with Section 9.3(b). As used in Section 9.3(a)(ii)(z), a “
Appears in 1 contract
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.37.3 and except for the filing fee under the HSR Act (which filing fee shall be borne equally by Parent and the Company), all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which that has incurred such fees and expenses. In the event that (Ai) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (Ia) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a7.1(b)(ii), 7.1(c)(i), or 7.1(d)(i) or (b) pursuant to Section 7.1(b)(i), but only if, in the case of this clause (b), (d) and (e) the applicable Final Order is based on the existence of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal (whether or not modified after it was first made), and such Takeover Proposal (whether or not modified after it was first made) is consummated within one (1) year of such termination or (Bii) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii), then the Company shall pay to Parent (in on the case date of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii)subclause (i) upon such consummation, not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 35 million (the "Termination Fee"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in cash this Section 7.3 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. In the event the Termination Fee becomes payable pursuant to this Section 7.3, the Company shall reimburse also promptly pay upon Parent's request, all reasonably documented out-of-pocket expenses, including attorneys' fees, related to fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated herebyhereby (including the portion of the filing fee under the HSR Act paid by Parent), which payments shall be in addition to the Termination Fee, but which payments shall not exceed $1 million in the aggregate. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, breach by Parent of its obligations hereunder, provided provided, that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser Merger Sub or of any rights of the Company in respect thereof. The Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from a breach of this Agreement by the Company.
Appears in 1 contract
Termination Fee; Expenses. Except as provided in (a) If (i) this ------------------------- Agreement is terminated pursuant to Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that 9.1(c)(iv) or 9.1(e); or (Aii) (x) a Takeover Proposal Company Third-Party Acquisition Offer shall have been made known to the Company or and shall have become known publicly prior to the termination of this Agreement, (y) this Agreement shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii9.1(b) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none other than by reason of the events described failure of the conditions set forth in paragraphs (aany of Sections 8.1(b), (b), c) or (d) and (e) to be fulfilled or the failure of Annex A shall have occurred so as the conditions set forth in Section 8.3 to result in a condition to the Offer not being satisfiedbe fulfilled), or pursuant to Section 7.1(b)(ii9.1(c)(ii) hereofor 9.1(d)(ii) and (z) within 12 months after termination the Company shall have consummated any Company Third-Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2.5 million in cash (the "Termination Fee"), plus an amount, in cash (the "Expense Reimbursement Amount"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of either clause Section 9.3(a)(i), upon termination of this Agreement, and (Iy) or (II) such Takeover Proposal is consummated within one (1) year in the case of such Section 9.3(a)(ii), upon consummation of a Company Third-Party Acquisition. It shall be a condition to termination or (B) of this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to any paragraph of Section 7.1(c)(ii9.1 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant 41 thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.3(a)(ii)(z), then the a "Company shall pay to Parent Third-Party Acquisition" means (in the case of i) a termination transaction pursuant to Section 7.1(c)(ii)any Company Third-Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, prior to exchange offer or simultaneously with such terminationotherwise, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposalii) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, merger or other business combination (other than a willful with Buyer or intentional breachBuyer Subsidiary) in which, by Parent of its obligations hereunderimmediately after giving effect thereto, provided that no payment made by shareholders other than the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights shareholders of the Company in respect thereofimmediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction.
Appears in 1 contract
Termination Fee; Expenses. Except as provided (a) Termination Fee upon Breach or Withdrawal of Approval. If this ----------------------------------------------------- Agreement is terminated at such time that this Agreement is terminable pursuant to one (but not both) of (x) Section 9.1(g)(i) or (ii) or (y) Section 9.1(h)(i) or (ii), then: (i) the breaching party shall promptly (but not later than five business days after receipt of notice from the non-breaching party) pay to the non-breaching party in this ------------------------- Section 7.3cash an amount equal to all documented out-of-pocket expenses and fees incurred by the non-breaching party (including, all without limitation, fees and expenses incurred by the parties hereto shall be borne solely payable to all legal, accounting, financial, public relations and entirely by the party which has incurred such fees and expenses. In the event that (A) a Takeover Proposal shall have been made known other professional advisors arising out of, in connection with or related to the Company Merger or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or the transactions contemplated by this Agreement) not conditional) to make a Takeover Proposal and thereafter in excess of $10 million; provided, however, that, if this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none a party as a result of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated willful breach by the Company pursuant other party, the non-breaching party may pursue any remedies available to Section 7.1(c)(ii), then the Company shall pay to Parent (in the case of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, it at law or in the case of a termination pursuant equity and shall, in addition to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 million in cash and shall reimburse Parent's its out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and expenses (which shall be paid pursuant as specified above and shall not be limited to this Section 7.3 regardless $10 million), be entitled to recover such additional amounts as such non-breaching party may be entitled to receive at law or in equity; and (ii) if (x) at the time of any alleged breach, other than a the breaching party's willful or intentional breach, by Parent of its obligations hereunder, provided that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement Agreement, there shall have been a third-party tender offer for shares of, or a third party offer or proposal with respect to a Business Combination involving, such party or any of its affiliates which at the time of such termination shall not have been rejected by Parent such party and its board of directors and withdrawn by the third party, and (y) within two and one- half years of any termination by the non-breaching party, the breaching party or Purchaser an affiliate thereof becomes a subsidiary of such offeror or a subsidiary of an affiliate of such offeror or accepts a written offer to consummate or consummates a Business Combination with such offeror or an affiliate thereof, then such breaching party (jointly and severally with its affiliates), upon the signing of a definitive agreement relating to such a Business Combination, or, if no such agreement is signed then at the closing (and as a condition to the closing) of such breaching party becoming such a subsidiary or of any rights of such Business Combination, will pay to the Company non-breaching party an additional fee equal to $50 million in respect thereofcash; provided that in no event shall the additional termination fee provided for in Section 9.3(b) be payable if the additional fee referred to in this Section 9.3(a)(ii) has been paid.
Appears in 1 contract
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that (Ai) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (IA) pursuant to Section 7.1(b)(iii) hereof or, or (IIB) if the Offer has remained open for at least 20 twenty (20) business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof), and in the either case of either clause (I) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (Bii) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii), then the Company shall pay to Parent within one (in the case 1) day of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii)subclause (i) upon such consummation, not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 15 million (the "Termination Fee"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in cash this Section 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Purchaser would not enter into this Agreement. In the event the Termination Fee becomes payable pursuant to this Section 7.3, the Company shall reimburse also promptly pay upon Parent's request, all reasonably documented out-of-pocket expenses, including attorneys' fees, related to fees and expenses incurred by Parent and Purchaser in connection with this Agreement and the transactions contemplated herebyhereby (which shall not exceed $1 million in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, breach by Parent of its obligations hereunder; provided, provided that no payment made by the Company pursuant to this Section 7.3 shall -------- operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereof; further provided, that the Termination Fee, if paid, shall be credited ------- -------- against any damages recovered by Parent or Purchaser from the Company arising from such breach.
Appears in 1 contract
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that (i) If (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is validly terminated by the Company either (I) Parent and Carve-out Buyer pursuant to the provisions of Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a9.1(d), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is validly terminated by the Company pursuant to the provisions of Section 7.1(c)(ii9.1(c) or (C) (1) after the date of this Agreement, a Company Takeover Proposal (substituting “fifty percent (50%)” for the fifteen percent (15%) threshold set forth in the definition of “Company Takeover Proposal”) (a “Qualifying Transaction”) is publicly proposed or publicly disclosed prior to the Special Meeting, (2) this Agreement is validly terminated by Parent and Carve-out Buyer, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii), then or by Parent and Carve-out Buyer pursuant to Section 9.1(f) and (3) at any time on or prior to the 12-month anniversary of such termination, the Company or any of its Subsidiaries has entered into a definitive agreement providing for a Qualifying Transaction or completed a Qualifying Transaction, in each case, the Company shall pay to each of Parent and Carve-out Buyer (or one or more of their respective designees) its Pro Rata Portion of the Termination Fee, such Termination Fee to be due (x) in the case of a termination pursuant to clause (A) of this Section 7.1(c)(ii9.2(b), prior to or simultaneously concurrently with such terminationtermination and payable in accordance with Section 9.2(b)(iii), or (y) in the case of a termination pursuant to clause (B) of this Section 7.1(d)(ii9.2(b), not later than one concurrently with such termination and payable in accordance with Section 9.2(b)(iii), and (1z) business day after such termination, or in the case of a termination pursuant to clause (C) of this Section 7.1(b)(ii) or 7.1(b)(iii9.2(b), upon concurrently with the earlier of entering into such definitive agreement with respect to such Qualifying Transaction and consummation of such Takeover Proposal) a termination fee equal to $10 million Qualifying Transaction, and payable in cash and accordance with Section 9.2(b)(iii). In no event shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, by Parent of its obligations hereunder, provided that no payment made by the Company pursuant be required to this Section 7.3 shall operate or be construed as a waiver by pay the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereofTermination Fee on more than one occasion.
Appears in 1 contract
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which that has incurred such fees and expenses. In the event that (Ai) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (Ia) pursuant to Sections 7.1(b)(ii), 7.1(c)(i), or 7.1(d)(i) or (b) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a7.1(b)(i), but only if, in the case of this clause (b), (d) and (e) the applicable Final Order is based on the existence of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal (whether or not modified after it was first made), and such Takeover Proposal (whether or not modified after it was first made) is consummated within one (1) year of such termination or (Bii) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii), then the Company shall pay to Parent (in on the case date of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii)subclause (i) upon such consummation, not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 million three percent (3%) of the Merger Consideration (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Section 7.3 are an integral part of the transactions contemplated by this Agreement and the transactions contemplated herebythat, without these agreements, Parent and Merger Sub would not enter into this Agreement. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, breach by Parent of its obligations hereunder, provided provided, that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser Merger Sub or of any rights of the Company in respect thereof.
Appears in 1 contract
Termination Fee; Expenses. Except as provided set forth in this ------------------------- Section 7.38.3, all fees and expenses incurred by in connection with this Agreement and the parties hereto Contemplated Transactions shall be borne solely and entirely paid by the party which has incurred incurring such fees and expenses, whether or not the Merger is consummated. In the event that (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii8.1(f), Parent shall pay in cash to the Company an amount equal to the Termination Fee by wire transfer of immediately available funds to an account to be designated by the Company. In the event that this Agreement is terminated as a result of the failure of the condition set forth in Section 6.15 (including a termination by either party pursuant to Section 8.1(b) at a time when all the other conditions to closing set forth in Articles 6 and 7 have been satisfied (or (ii) are capable of being satisfied and would have been satisfied at the Closing were the Closing to occur on the date of such termination)), Parent shall pay in cash to the Company an amount equal to the Company’s actual out-of-pocket expenses incurred in connection with the Merger, in an amount not to exceed the Termination Fee, by wire transfer of immediately available funds to an account to be designated by the Company. In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii8.1(g), then the Company shall pay in cash to Parent an amount equal to the Termination Fee by wire transfer of immediately available funds to an account to be designated by the Parent. If a party fails to pay when due any amount payable by such party under this Section 8.3, then: (i) such party shall reimburse the other party for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the case of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation collection of such Takeover Proposaloverdue amount and the enforcement by the other party of its rights under this Section 8.3; and (ii) such party shall pay to the other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to the other party in full) at a termination fee rate per annum equal to $10 million in cash and shall reimburse Parent's out-the lower of-pocket expenses, including attorneys' fees, related to this Agreement and : (i) 18% per annum; or (ii) the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, maximum rate permitted by Parent of its obligations hereunder, provided that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereofapplicable Legal Requirements.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wireless Ronin Technologies Inc)
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event The Merger Agreement provides that (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly will pay to its stockholders generally or Parent a termination fee equal to $27,000,000 under any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by of the Company either (I) pursuant to Section 7.1(b)(iii) hereof or, (II) following circumstances in accordance with the terms set forth therein: • if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Merger Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(iia cause of termination set forth above under "Termination" in paragraph (c)(i), or (ii) ; • if the Merger Agreement is terminated by the Company pursuant to Section 7.1(c)(iia cause of termination set forth above under "Termination" in either paragraph (d)(i) or (d)(iii); or • if the Merger Agreement is terminated either (i) prior to the closing of the Offer, by Parent pursuant to a cause of termination set forth above under "Termination" in paragraph (c)(ii), then or (ii) by the Company or Parent pursuant to a cause of termination set forth above under "Termination" in paragraph (b)(i) and, in the case of clauses (i) and (ii) immediately above, (A) prior to such termination, a Takeover Proposal shall pay to Parent (1) in the case of a termination pursuant to Section 7.1(c)(iia cause of termination set forth above under "Termination" in paragraph (b)(i), prior to have been publicly disclosed and not withdrawn or simultaneously with such termination, or (2) in the case of a termination pursuant to Section 7.1(d)(iipursuant to a cause of termination set forth above under "Termination" in paragraph (c)(ii), have been publicly disclosed or otherwise made or communicated to the Company or the Company's board of directors, and not later than one withdrawn, and (1B) business day after within 12 months following the date of such terminationtermination of the Merger Agreement the Company shall have entered into a definitive agreement with respect to any Takeover Proposal, or any Takeover Proposal shall have been consummated (in each case whether or not such Takeover Proposal is the case same as the original Takeover Proposal made, communicated or publicly disclosed), plus, in addition to the Termination Fee, any expenses actually incurred by Parent on or prior to the termination of a termination the Merger Agreement (less the amount of any such expenses previously paid to Parent). • In the event the Merger Agreement is terminated (i) by Parent pursuant to Section 7.1(b)(ii) or 7.1(b)(iiia cause of termination set forth above under "Termination" in paragraph (c)(ii), upon then the consummation Company shall, following receipt of such Takeover Proposalan invoice therefor, promptly (in any event within 2 business days) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, pay all expenses actually incurred by Parent on or prior to the termination of its obligations hereunderthe Merger Agreement, provided that no payment made or (ii) by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver cause of termination set forth above under "Termination" in paragraph (d)(ii), then Parent shall, following receipt of an invoice therefor, promptly (in any event within 2 business days) pay all expenses actually incurred by the Company of any breach of this Agreement by Parent on or Purchaser or of any rights prior to the termination of the Company in respect thereofMerger Agreement.
Appears in 1 contract
Samples: Randstad North America, L.P.
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. (a) In the event that (Ai) this Agreement is terminated pursuant to Section 9.01(c)(iv) or 9.01(e); or (ii) (x) a Takeover Proposal Company Third Party Acquisition Offer shall have been made known to the Company or and shall have become known publicly, (y) this Agreement shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii9.01(b), 9.01(c)(i) hereof oror 9.01(d)(i) (in each case, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none other than by reason of the events described failure of the conditions set forth in paragraphs (aany of Sections 8.01(b), (b), c) or (d) and (e) to be fulfilled or the failure of Annex A shall have occurred so as the conditions set forth in Section 8.03 to result in a condition to the Offer not being satisfiedbe fulfilled), or pursuant to Section 7.1(b)(ii9.01(c)(ii) hereofor 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2,250,000, in cash (the "Termination Fee"), plus an amount, in cash (the "Expense Reimbursement Amount"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of either clause Section 9.03(a)(i), upon termination of this Agreement, and (Iy) or (II) such Takeover Proposal is consummated within one (1) year in the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination or (B) of this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to any paragraph of Section 7.1(c)(ii9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), then the a "Company shall pay to Parent Third Party Acquisition" means (in the case of i) a termination transaction pursuant to Section 7.1(c)(ii)any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, prior to exchange offer or simultaneously with such terminationotherwise, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposalii) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, merger or other business combination (other than a willful with Buyer or intentional breachBuyer Subsidiary) in which, by Parent of its obligations hereunderimmediately after giving effect thereto, provided that no payment made by shareholders other than the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights shareholders of the Company in respect thereofimmediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction.
Appears in 1 contract
Termination Fee; Expenses. Except (a) If this Agreement is terminated by EarthLink or Cidco, as provided in this ------------------------- Section 7.3the case may be, pursuant to Sections 7.1(b)(i) (if terminated thereunder by EarthLink), 7.1(b)(ii) or any subsection of 7.1(d), then Cidco shall promptly pay EarthLink a fee equal to Five Hundred Thousand Dollars ($500,000), plus reimbursement of all of EarthLink's actual fees and expenses incurred by the parties hereto shall be borne solely in connection with this transaction (including, without limitation, all legal, accounting and entirely by the party which has incurred such other fees and expenses. In ) (collectively, the event "Termination Fee"), provided, however, that if EarthLink terminates the Agreement pursuant to Section 7.1(d)(i), and Cidco also terminates this Agreement pursuant to Section 7.1(c)(i), EarthLink shall nevertheless be entitled to the Termination Fee, provided further, that if the termination is pursuant to Section 7.1(b)(ii) above, such fee shall be payable only if (Ax) a Takeover Proposal shall have been made known to be pending and not withdrawn on the Company or date of such termination, and (y) within twelve (12) months after the date of termination of this Agreement, Cidco shall have been made directly consummated (or entered into an agreement to its stockholders generally or any person shall have publicly announced consummate) an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by Alternative Transaction with the Company either (I) pursuant to Section 7.1(b)(iii) hereof or, (II) if the Offer has remained open for at least 20 business days and the Minimum Condition has not been satisfied (and none of the events described in paragraphs (a), (b), (d) and (e) of Annex A shall have occurred so as to result in a condition to the Offer not being satisfied), pursuant to Section 7.1(b)(ii) hereof, and in the case of either clause (I) or (II) party making such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement Proposal. An "Alternative Transaction" shall mean (i) is terminated by Parent pursuant to Section 7.1(d)(ii)a merger, share exchange or other business combination or transaction in which more than 50% of the Cidco Common Stock or all or substantially all of the assets of Cidco are acquired, or (ii) is terminated any acquisition from the stockholders of Cidco, by tender offer, exchange offer or otherwise, of more than 50% of the Company pursuant outstanding Cidco Common Stock. The Termination Fee payable under this Section 7.2 shall be paid as a condition to Section 7.1(c)(ii), then the Company shall pay to Parent (in the case of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, by Parent of its obligations hereunder, provided that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereofAlternative Transaction.
Appears in 1 contract
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. In the event that (Aa) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention If (whether or not conditionali) to make a Takeover Proposal and thereafter this Agreement is terminated by the Company either (I) pursuant to Section 7.1(b)(iii9.1(c)(iv) hereof oror 9.1(e); or (ii) (x) a Company Third-Party Acquisition Offer shall have become known publicly prior to the termination of this Agreement, (IIy) if the Offer has remained open for at least 20 business days and the Minimum Condition has not this Agreement shall have been satisfied terminated pursuant to Section 9.1(b), 9.1(c)(i) or 9.1(d)(i) (and none in each case, other than by reason of the events described failure of the conditions set forth in paragraphs (aany of Section 8.1(b), (bc), (d) and or (e) e)to be fulfilled or the failure of Annex A shall have occurred so as the conditions set forth in Section 8.3 to result in a condition to the Offer not being satisfiedbe fulfilled), or pursuant to Section 7.1(b)(ii9.1(c)(ii) hereofor 9.1(d)(ii) and (z) within six months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third-Party Acquisition (defined below), and in provided that the case of either clause (ICompany did not otherwise have the right to terminate the Agreement pursuant to Sections 9.1(d)(iv) or (II) such Takeover Proposal is consummated within one (1) year of such termination or (B) this Agreement (i) is terminated by Parent pursuant to Section 7.1(d)(ii), or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii9.1(d)(v), then the Company shall pay to Parent (in the case of Buyer a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 1.6 million in cash and shall reimburse Parent's (the “Termination Fee”), plus an amount, in cash (the “Buyer Expense Reimbursement Amount”), not to exceed $750,000, equal to all documented out-of-pocket expensesexpenses and fees incurred by Buyer (including fees and expenses payable to all legal, including attorneys' feesaccounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement and Agreement, the Merger or the transactions contemplated herebyby this Agreement. The fee arrangement contemplated hereby is the sole remedy hereunder and Termination Fee shall be paid pursuant by wire transfer of same day funds to an account designated by Buyer (x) in the case of Section 9.3(a)(i), upon termination of this Agreement, and (y) in the case of Section 7.3 regardless 9.3(a)(ii), upon the earlier of any alleged breach, other than such entry into an agreement with respect to a willful Company Third-Party Acquisition or intentional breach, by Parent such consummation of its obligations hereunder, provided that no payment made a Company Third-Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.1 that requires payment of the Termination Fee upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. The Buyer Expense Reimbursement Amount shall be paid in accordance with Section 7.3 shall operate 9.3(b). As used in Section 9.3(a)(ii)(z), a “Company Third-Party Acquisition” means (i) a transaction pursuant to any Company Third-Party Acquisition Offer in which any third party acquires at least 50% of the outstanding shares of Company Common Stock by tender offer, exchange offer or be construed as otherwise, (ii) a waiver by merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, stockholders other than the Company of any breach of this Agreement by Parent or Purchaser or of any rights stockholders of the Company in respect thereofimmediately prior thereto own at least 50% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 50% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction.
Appears in 1 contract
Termination Fee; Expenses. Except as provided in this ------------------------- Section 7.3, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. (a) In the event that (AX)(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated by either Buyer or Seller pursuant to (A) Section 7.1(b)(i) at a time when the Company conditions set forth in Section 6.1(a) or Section 6.1(b) are not satisfied or (B) Section 7.1(b)(ii) if any such Law that makes consummation of the Closing illegal or otherwise prohibited or any such injunction, order or decree of any Governmental Authority, in each case, relates to Competition Laws, and (ii) the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied did not primarily result from the Willful Breach by Seller of any covenant or obligation set forth in this Agreement, including in Section 4.3, or (Y) this Agreement is terminated by either (I) Buyer or Seller pursuant to Section 7.1(b)(iii), then Buyer shall pay, or cause to be paid, to Seller by wire transfer of immediately available funds, a fee in the amount of $45,000,000 as promptly as practicable (and, in any event, within two (2) hereof or, Business Days) following such termination (II) if the Offer “Antitrust Termination Fee”). In the event of a dispute between the parties regarding whether any material breach of this Agreement by Seller has remained open for at least 20 business days and primarily caused the Minimum Condition has not been satisfied (and none failure of the events described conditions set forth in paragraphs (a)Section 6.1(a) or Section 6.1(b) to be satisfied, (b)Buyer shall deposit promptly by wire transfer or delivery of other immediately available funds into an escrow account with a third party reasonably acceptable to Seller, (d) and (e) of Annex A shall have occurred so as on terms reasonably acceptable to result in a condition Seller, an amount equal to the Offer not being satisfied)Antitrust Break Fee until such dispute is resolved. Notwithstanding anything in this Agreement to the contrary, pursuant to Section 7.1(b)(ii) hereof, and except in the case of either clause (I) fraud or (II) such Takeover Proposal is consummated within one (1) year a Willful Breach of such termination or (B) this Agreement (i) is terminated by Parent pursuant Agreement, in the event that the Antitrust Termination Fee becomes payable, then payment to Company of the Antitrust Termination Fee, together with any amounts due under Section 7.1(d)(ii7.3(b), shall be Seller’s sole and exclusive remedy as liquidated damages for any and all losses or (ii) is terminated by the Company pursuant to Section 7.1(c)(ii)damages of any nature against Buyer, then the Company shall pay to Parent (Canada Buyer or any of their respective Affiliates in the case respect of a termination pursuant to Section 7.1(c)(ii), prior to or simultaneously with such termination, or in the case of a termination pursuant to Section 7.1(d)(ii), not later than one (1) business day after such termination, or in the case of a termination pursuant to Section 7.1(b)(ii) or 7.1(b)(iii), upon the consummation of such Takeover Proposal) a termination fee equal to $10 million in cash and shall reimburse Parent's out-of-pocket expenses, including attorneys' fees, related to this Agreement and the transactions contemplated hereby. The fee arrangement contemplated hereby is the sole remedy hereunder and shall be paid pursuant to this Section 7.3 regardless of any alleged breach, other than a willful or intentional breach, by Parent of its obligations hereunder, provided that no payment made by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Purchaser or of any rights of the Company in respect thereof.
Appears in 1 contract
