Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company. (b) In the event that: (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination, (ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or (iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.
Appears in 2 contracts
Samples: Merger Agreement (Isco Inc), Merger Agreement (Isco Inc)
Termination Fee; Expenses. (a) Except as provided in If this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event thatAgreement is terminated:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii7.1(i), or is terminated ;
(ii) by the Company pursuant to Section 7.1(c)(ii7.1(k), ; or
(iii) this Agreement is terminated (A) by (I) either Parent or the Company pursuant to Section 7.1(d) or (II) Parent pursuant to Section 7.1(b)(ii) and any of 7.1(g), (xB) a direct Takeover Proposal with respect to the Company shall have been publicly announced or indirect acquisition or purchase shall have become publicly known and shall not have been publicly withdrawn, in the case of 15% or more clause (A)(I), prior to the Company Stockholders’ Meeting or, in the case of clause (A)(II), prior to such termination, and (C) within twelve (12) months after the assets termination of this Agreement, the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) consummates a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiariestransaction that is a Takeover Proposal, or (z) enters into a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar definitive agreement with a third party with respect to a transaction involving the Company or any of its Subsidiaries that is consummated within one year of such termination, a Takeover Proposal; then the Company shall pay to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) in immediately available funds in the case of clause (i), within one business day two (2) Business Days of such termination, or or, in the case of subclause clause (ii), at or prior to such termination, or, in the case of clause (iii), upon the earlier of the consummation of the transaction or the entry of a definitive agreement with respect to the transaction contemplated by such Takeover Proposal.
(b) If this Agreement is terminated:
(i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder; provided, that no payment made by the Company pursuant to Section 7.1(j); or
(ii) (A) by (I) either Parent or the Company pursuant to Section 7.1(e) or (II) the Company pursuant to Section 7.1(f), (B) a Takeover Proposal with respect to Parent shall have been publicly announced or shall have become publicly known and shall not have been publicly withdrawn, in the case of clause (A)(I), prior to the Parent Stockholders’ Meeting or, in the case of clause (A)(II), prior to such termination, and (C) within twelve (12) months after the termination of this Agreement, Parent or any of its Subsidiaries consummates a transaction that is a Takeover Proposal, or enters into a definitive agreement with a third party with respect to a transaction that is a Takeover Proposal; then Parent shall pay to the Company the Parent Termination Fee by wire transfer (to an account designated by the Company) in immediately available funds in the case of clause (i), within two (2) Business Days of such termination, or, in the case of clause (ii), at or prior to such termination, or, in the case of clause (iii), upon the earlier of the consummation of the transaction or the entry of a definitive agreement with respect to the transaction contemplated by such Takeover Proposal.
(c) If this Agreement is terminated:
(i) by either Parent or the Company pursuant to Section 7.3 7.1(c) in connection with any Law relating to Antitrust Laws or Gaming Laws, including the Gaming Approvals;
(ii) by either Parent or the Company pursuant to Section 7.1(b) and at the time of such termination, any of the conditions set forth in Section 6.1(b) (if the applicable Law relates to Antitrust Laws or Gaming Laws, including the Gaming Approvals) or Section 6.1(e) shall operate not have been satisfied and the conditions in Section 6.1(a) and Section 6.3 have been satisfied or be construed as a waiver are capable of being satisfied at or prior to the Closing; or
(iii) by the Company of any breach of this Agreement by pursuant to Section 7.1(h); then, except as set forth in Section 7.3(f) with respect to a Reverse Termination Fee that becomes payable in circumstances constituting a Regulatory Breach Termination, Parent or Merger Sub or of any rights of shall pay to the Company promptly (but in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by event no later than the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that second Business Day after such termination) the Reverse Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.
Appears in 2 contracts
Samples: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (CAESARS ENTERTAINMENT Corp)
Termination Fee; Expenses. (a) Except as provided in If this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event thatAgreement is terminated:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), 7.1(g) in the event of an Adverse Recommendation Change; or is terminated (ii) (x) by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii7.1(d)(i) and any of hereof, (xy) a direct Company Takeover Proposal shall have been publicly announced or indirect acquisition or purchase of shall have become publicly known and shall not have been publicly withdrawn by a date that is at least fifteen (15% or more ) Business Days prior to the Company Stockholders’ Meeting and (z) within twelve (12) months of the assets termination of this Agreement, the Company or any of its Subsidiaries enters into a definitive agreement with a third party with respect to or 15% or more of any class of equity securities of the consummates a transaction that is a Company or any of its Subsidiaries, (y) Takeover Proposal with a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, third party; then the Company shall pay to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) in immediately available funds in the case of clause (i), within one business day two (2) Business Days of such termination, or or, in the case of subclause clause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”ii), payable by wire transfer upon the earlier of same day funds. The Company acknowledges that the agreements contained in this Section 7.3 are an integral part of entry into a definitive agreement with respect to the transactions contemplated by such Company Takeover Proposal and the consummation of such transactions.
(b) If this Agreement and that, without these agreements, is terminated by (A) either 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder; provided, that no payment made by or the Company pursuant to this Section 7.3 shall operate 7.1(c) in connection with any injunction, order, decree or be construed as a waiver by ruling relating to gaming, antitrust or related Laws or any related consents or approvals, including the Gaming Approvals or (B) either Parent or the Company pursuant to Section 7.1(b) and at the time of such termination, any breach of this Agreement by Parent or Merger Sub or of any rights of the Company conditions set forth in respect thereof Section 6.1(b), Section 6.1(e) or as a waiver by Section 6.1(h) shall not have been satisfied and the conditions in Section 6.1(a)(i), Section 6.1(f), Section 6.3(a), Section 6.3(b), Section 6.3(c) and Section 6.3(d) have been satisfied or are capable of being satisfied at or prior to the Closing, then Parent or Merger Sub of any breach of this Agreement by shall pay to the Company or of promptly (but in any rights of event no later than the second Business Day after such termination), the Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, ; provided that Parent shall not be obligated to pay such fee if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from primary cause of such breachtermination was an adverse suitability finding under Gaming Laws with respect to the OpCo Business.
Appears in 2 contracts
Samples: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.)
Termination Fee; Expenses. (a) Except as otherwise provided in this Section 7.3 (or otherwise as expressly provided in this Agreement) and except for (i) the filing fee under the HSR Act and any fees for similar filings or notices under foreign Laws or regulations and (ii) the expenses in connection with printing and mailing the Joint Proxy Statement required in connection with the actions specified in Section 5.3(a) and the Form S-4 (which filing fee in all events such fees and expenses shall be paid by Parent in each case but, in the event this Agreement is terminated in accordance with its terms, borne equally by ParentParent and the Company (with the Company reimbursing Parent for its 50% share of such fees and expenses promptly following such termination)), all fees and expenses incurred by the parties Parties hereto shall be borne solely by the party hereto Party that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter that this Agreement is terminated by the Company pursuant to Section 7.1(c)(i) or 7.1(d)(iSection 7.1(c)(ii), then Parent shall pay to the Company a fee in the amount of $163,000,000 (the “Parent Termination Fee”) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year on the second Business Day following the date of such termination,.
(iic) In the event that this Agreement is terminated by Parent pursuant to Section 7.1(d)(i) or Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day a fee in the amount of $141,000,000 (the “Company Termination Fee”) on the second Business Day following the date of such termination.
(d) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iv), or then the Company shall pay to Parent a fee in the amount of $43,000,000 (the “Company No-Vote Fee”) (i) concurrently with such termination (in the case of subclause termination by the Company) or (ii) on the second Business Day following the date of such termination (in the case of termination by Parent).
(e) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iii), then Parent shall pay to the Company a fee in the amount of $43,000,000 (the “Parent No-Vote Fee”) (i) concurrently with such termination (in the case of termination by Parent) or (ii) on the second Business Day following the date of such termination (in the case of termination by the Company).
(f) In the event that after the date hereof, (i) a Takeover Proposal with respect to Parent shall have been publicly disclosed, announced or otherwise made public by any Person (other than the Company or any of its Affiliates) (a “Parent Takeover Proposal”), (ii) this Agreement is terminated pursuant to (y) Section 7.1(b)(iii) or (z) Section 7.1(c)(iii) (if, in the case of this clause (z), the breach giving rise to such termination was a Willful Breach) and at the time of such termination the Parent Takeover Proposal has not been withdrawn and remains outstanding, and (iii) upon within nine (9) months after any such consummationtermination referred to in the preceding clause (ii), a termination fee equal Parent enters into any definitive agreement providing for any transaction contemplated by any Parent Takeover Proposal (regardless of when made and whether or not the same Parent Takeover Proposal referred to $3,000,000 million in the preceding clause (i), which transaction is thereafter consummated (regardless of when consummated)) or consummates any transaction contemplated by any Parent Takeover Proposal (regardless of when made and whether or not the “same Parent Takeover Proposal referred to in the preceding clause (i)), then Parent shall pay to the Company the Parent Termination Fee, less the amount, if any, of the Parent No-Vote Fee previously paid by Parent to the Company, concurrently with the occurrence of the consummation of any Parent Takeover Proposal referred to in the preceding clause (iii); provided, however, that for purposes of the definition of “Takeover Proposal” in this Section 7.3(f), references to “20%” shall be replaced by “50%.”
(g) In the event that after the date hereof, (i) a Takeover Proposal with respect to the Company shall have been publicly disclosed, announced or otherwise made public by any Person (other than Parent or any of its Affiliates) (a “Company Takeover Proposal”), payable (ii) this Agreement is terminated pursuant to (y) Section 7.1(b)(iv) or (z) Section 7.1(d)(iii) (if, in the case of this clause (z), the breach giving rise to such termination was a Willful Breach) and at the time of such termination the Company Takeover Proposal has not been withdrawn and remains outstanding, and (iii) within nine (9) months after any such termination referred to in the preceding clause (ii), the Company enters into any definitive agreement providing for any transaction contemplated by wire transfer any Company Takeover Proposal (regardless of when made and whether or not the same day funds. Company Takeover Proposal referred to in the preceding clause (i), which transaction is thereafter consummated (regardless of when consummated)) or consummates any transaction contemplated by any Company Takeover Proposal (regardless of when made and whether or not the same Company Takeover Proposal referred to in the preceding clause (i)), then the Company shall pay to Parent the Company Termination Fee, less the amount, if any, of the Company No-Vote Fee previously paid by the Company to Parent, concurrently with the occurrence of the consummation of any Company Takeover Proposal referred to in the preceding clause (iii); provided, however, that for purposes of the definition of “Takeover Proposal” in this Section 7.3(g), references to “20%” shall be replaced by “50%.”
(h) The Company acknowledges Parties acknowledge that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement. In ; accordingly, if either the event Company or Parent fails promptly to pay any amount due pursuant to this Section 7.3, and, in order to obtain such payment, the Termination Fee becomes payable Company or Parent, as applicable, commences a suit that results in a judgment against the Company or Parent, as applicable, for any amount due pursuant to this Section 7.3, the Company non-prevailing Party that is required to pay such any such fee shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the prevailing Party entitled to receive such fee its costs and expenses (including reasonable attorneys’ fees and expenses incurred by Parent and Merger Sub expenses) in connection with this Agreement and such suit, together with interest on the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid amount due pursuant to this Section 7.3 regardless from the date such payment was required to be made until the date of any alleged breach by Parent of its obligations hereunder; provided, that no payment made by at the Company pursuant prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made. All payments under this Section 7.3 shall operate or be construed as a waiver made by the Company wire transfer of any breach of this Agreement immediately available funds to an account designated in writing by Parent or Merger Sub the Company, as applicable. In no event shall a (i) Company Termination Fee or of any rights of the Company in respect thereof No-Vote Fee be payable more than once or as a waiver by (ii) Parent Termination Fee or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall No-Vote Fee be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachpayable more than once.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
If (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i9.1(c)(iv) or 7.1(d)(i) hereof and such Takeover Proposal 9.1(e); or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase Company Third-Party Acquisition Offer shall have become known publicly prior to the termination of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiariesthis Agreement, (y) a tender offer this Agreement shall have been terminated pursuant to Section 9.1(b), 9.1(c)(i) or exchange offer resulting 9.1(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any Person beneficially owning 15% of Section 8.1(b), (c), (d) or more of any class of equity securities (e)to be fulfilled or the failure of the Company or any of its Subsidiariesconditions set forth in Section 8.3 to be fulfilled), or pursuant to Section 9.1(c)(ii) or 9.1(d)(ii) and (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving within six months after termination the Company shall have entered into an agreement with respect to, or consummated, any of its Subsidiaries is consummated within one year of such terminationCompany Third-Party Acquisition (defined below), and provided that the Company did not otherwise have the right to terminate the Agreement pursuant to Sections 9.1(d)(iv) or 9.1(d)(v), then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, Buyer a termination fee equal to $3,000,000 1.6 million in cash (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 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 shall be paid by wire transfer of same day funds. The Company acknowledges that funds to an account designated by Buyer (x) in the agreements contained in this case of Section 7.3 are an integral part 9.3(a)(i), upon termination 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 y) in the aggregatecase of Section 9.3(a)(ii), which payments 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 in addition a condition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach termination of this Agreement by the Company or pursuant to any paragraph of any rights Section 9.1 that requires payment of Parent or Merger Sub in respect thereof; and provided, furtherthe Termination Fee upon termination pursuant thereto, that the such payment has been made. In no event shall more than one Termination Fee, if paid, Fee be payable under this Article IX. The Buyer Expense Reimbursement Amount shall be credited against paid in accordance with Section 9.3(b). As used in Section 9.3(a)(ii)(z), a “Company Third-Party Acquisition” means (i) a transaction pursuant to any damages recovered Company Third-Party Acquisition Offer in which any third party acquires at least 50% of the outstanding shares of Company Common Stock by Parent tender offer, exchange offer or Merger Sub from otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, stockholders other than the stockholders of the Company arising from immediately prior thereto own at least 50% of the entity surviving such breachmerger 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
Samples: Merger Agreement (Optika Inc)
Termination Fee; Expenses. (a) Except as otherwise provided in the Separation Agreement or this Agreement, including this Section 7.3 9.03, and except for (i) the expenses in connection with printing and mailing the Registration Statement, the Proxy Statement and the Vistana Registration Statement required in connection with the actions specified in Section 7.04, (ii) all SEC filing fee fees relating to the transactions contemplated by this Agreement and (iii) the fees in connection with the approvals required under Section 7.06(a) related to the HSR Act Merger (each of which filing fee fees and expenses in all events clauses (i) through (iii) shall be borne borne, in each case, equally by ParentILG and Starwood), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In ILG shall pay to Starwood $40,000,000 (the event that“Termination Fee”) if this Agreement is terminated as follows:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter if this Agreement is terminated pursuant to Section 7.1(c)(i9.01(g), or Section 9.01(h), then ILG shall pay the entire ILG Termination Fee (to the extent not previously paid) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of on the second Business Day following such termination,; and
(ii) (x) if this Agreement is terminated by Parent (A) pursuant to Section 7.1(d)(ii9.01(f), (B) pursuant to Section 9.01(e) or (C) pursuant to Section 9.01(c) without a vote of the shareholders of ILG contemplated by this Agreement at the ILG Shareholders Meeting having occurred, and in any such case a Competing Proposal shall have been publicly announced or otherwise communicated to the ILG Board at any time after the date of this Agreement and not publicly withdrawn at least five (5) Business Days prior to the date of the taking of the vote of the shareholders of ILG contemplated by this Agreement at the ILG Shareholders Meeting, in the case of clause (A), or is terminated by the Company pursuant to Section 7.1(c)(iidate of termination, in the case of clauses (B) and (C), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of if within twelve (12) months after the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year date of such termination, a transaction in respect of a Competing Proposal is consummated or ILG enters into a definitive agreement in respect of a Competing Proposal, then ILG shall be obligated to pay the Company Termination Fee (less any Expenses previously paid to Starwood pursuant to Section 9.03(c)) on the second Business Day following the earlier of the date ILG enters into a definitive agreement in respect or consummates such transaction; provided, that, solely for purposes of this Section 9.03(b)(ii), the term “Competing Proposal” shall pay have the meaning set forth in Section 7.09(f)(i), except that all references to Parent within one business day of such termination, or in the case of subclause (i20% and 35% shall be changed to 50%. Any Termination Fee due under this Section 9.03(b) or (iiiSection 9.01(i) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable shall be paid by wire transfer of same day immediately available funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.
Appears in 1 contract
Samples: Merger Agreement
Termination Fee; Expenses. (a) Except In the event that this Agreement is terminated (i) by the Company pursuant to Section 9.1(d)(ii) as provided a result of an action by the Board of Directors of the Parent prior to obtaining the Parent Merger Shareholders' Approval or (ii) by Parent pursuant to Section 9.1(c)(ii) as a result of an action by the Board of Directors of the Company prior to obtaining the Company Shareholders' Approval, then (A) in this the event of termination pursuant to Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent9.1(c)(ii), the Company shall pay to Parent and (B) in the event of termination pursuant to Section 9.1(d)(ii), Parent shall pay to the Company, (promptly but in each case no later than five (5) business days after the date of termination of this Agreement) by wire transfer of same day funds, a termination fee of $150,000,000, plus, in each case, all of the terminating party's documented out-of-pocket expenses and fees incurred by the party (including, without limitation, fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of claritypayable to all legal, the cost of preparing printingaccounting, financial, and mailing other professionals arising out of, in connection with or related to the Proxy Statement and transactions contemplated by this Agreement) not in excess of $10,000,000 (the preliminary proxy statement shall be borne by the Company"Out-of-Pocket Expenses").
(b) In the event that:
that (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii9.1(e), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (zii) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction there shall have been an Acquisition Proposal involving the Company or any of its Subsidiaries Affiliates that has not been withdrawn and thereafter this Agreement is consummated terminated by Parent or the Company in the circumstances described in Section 9.1(b)(ii) or (b)(iii) or in accordance with Section 9.1(c)(i) and, in the case of this clause (ii) only, a definitive agreement with respect to such Acquisition Proposal is executed within one year two years of such termination, then the Company shall pay Parent a termination fee (the "Termination Fee") equal to $150,000,000 in cash plus the Out-of-Pocket Expenses of Parent; provided however, that, if such termination has occurred pursuant to Section 9.1(b)(ii) solely as a result of the failure to meet conditions set forth in Sections 8.1(e)(i) and (ii) with respect to the Nuclear Sale and Nuclear Approvals only, then the Company shall pay the Termination Fee plus the Out-of-Pocket Expenses of Parent if a definitive agreement with respect to such Acquisition Proposal is executed within one business day year of such termination, ; provided further that there is no arrangement or in understanding between the case Company and the party making the Acquisition Proposal at the time of subclause such termination.
(ic) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges parties agree that the agreements contained in this Section 7.3 9.3 are an integral part of the transactions contemplated by hereby and constitute liquidated damages and not a penalty. The parties further agree that if any party is or becomes obligated to pay a termination fee pursuant to Sections 9.3(a) and (b), the right to receive such termination fee shall be the sole remedy of the other party with respect to the facts and circumstances giving rise to such payment obligation. If this Agreement is terminated by a party as a result of a willful breach of a representation, warranty, covenant or agreement by the other party, the non-breaching party may pursue any remedies available to it at law or in equity and thatshall be entitled to recover any amounts thereunder. Notwithstanding anything to the contrary contained in this Section 9.3, without these agreementsif one party fails to promptly pay to the other any fee or expense due under this Section 9.3, Parent and Merger Sub would not enter into this Agreement. In the event the Termination Fee becomes in addition to any amounts paid or payable pursuant to this Section 7.3such Section, the Company defaulting party shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the costs and expenses (including legal fees and expenses incurred by Parent and Merger Sub expenses) in connection with this Agreement and any action, including the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless filing of any alleged breach by Parent of its obligations hereunder; providedlawsuit or other legal action, that no payment made by taken to collect payment, together with interest on the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company amount of any breach unpaid fee at the publicly announced prime rate of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and providedCitibank, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub N.A. from the Company arising from date such breachfee was required to be paid.
Appears in 1 contract
Termination Fee; Expenses. (a) Except In the event that this Agreement is terminated (i) by the Company pursuant to Section 9.1(d)(ii) as provided a result of an action by the Board of Directors of the Parent prior to obtaining the Parent Merger Shareholders' Approval or (ii) by Parent pursuant to Section 9.1(c)(ii) as a result of an action by the Board of Directors of the Company prior to obtaining the Company Shareholders' Approval, then (A) in this the event of termination pursuant to Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent9.1(c)(ii), the Company shall pay to Parent and (B) in the event of termination pursuant to
Section 9.1 (d)(ii), Parent shall pay to the Company, (promptly but in each case no later than five (5) business days after the date of termination of this Agreement) by wire transfer of same day funds, a termination fee of $150,000,000, plus, in each case, all of the terminating party's documented out-of-pocket expenses and fees incurred by the party (including, without limitation, fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of claritypayable to all legal, the cost of preparing printingaccounting, financial, and mailing other professionals arising out of, in connection with or related to the Proxy Statement and transactions contemplated by this Agreement) not in excess of $10,000,000 (the preliminary proxy statement shall be borne by the Company"Out-of-Pocket Expenses").
(b) In the event that:
that (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii9.1(e), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (zii) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction there shall have been an Acquisition Proposal involving the Company or any of its Subsidiaries Affiliates that has not been withdrawn and thereafter this Agreement is consummated terminated by Parent or the Company in the circumstances described in Section 9.1(b)(ii) or (b)(iii) or in accordance with Section 9.1(c)(i) and, in the case of this clause (ii) only, a definitive agreement with respect to such Acquisition Proposal is executed within one year two years of such termination, then the Company shall pay Parent a termination fee (the "Termination Fee") equal to $150,000,000 in cash plus the Out-of-Pocket Expenses of Parent; provided however, that, if such termination has occurred pursuant to Section 9.1(b)(ii) solely as a result of the failure to meet conditions set forth in Sections 8.1(e)(i) and (ii) with respect to the Nuclear Sale and Nuclear Approvals only, then the Company shall pay the Termination Fee plus the Out-of-Pocket Expenses of Parent if a definitive agreement with respect to such Acquisition Proposal is executed within one business day year of such termination, ; provided further that there is no arrangement or in understanding between the case Company and the party making the Acquisition Proposal at the time of subclause such termination.
(ic) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges parties agree that the agreements contained in this Section 7.3 9.3 are an integral part of the transactions contemplated by hereby and constitute liquidated damages and not a penalty. The parties further agree that if any party is or becomes obligated to pay a termination fee pursuant to Sections 9.3(a) and (b), the right to receive such termination fee shall be the sole remedy of the other party with respect to the facts and circumstances giving rise to such payment obligation. If this Agreement is terminated by a party as a result of a willful breach of a representation, warranty, covenant or agreement by the other party, the non-breaching party may pursue any remedies available to it at law or in equity and thatshall be entitled to recover any amounts thereunder. Notwithstanding anything to the contrary contained in this Section 9.3, without these agreementsif one party fails to promptly pay to the other any fee or expense due under this Section 9.3, Parent and Merger Sub would not enter into this Agreement. In the event the Termination Fee becomes in addition to any amounts paid or payable pursuant to this Section 7.3such Section, the Company defaulting party shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the costs and expenses (including legal fees and expenses incurred by Parent and Merger Sub expenses) in connection with this Agreement and any action, including the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless filing of any alleged breach by Parent of its obligations hereunder; providedlawsuit or other legal action, that no payment made by taken to collect payment, together with interest on the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company amount of any breach unpaid fee at the publicly announced prime rate of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and providedCitibank, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub N.A. from the Company arising from date such breachfee was required to be paid.
Appears in 1 contract
Termination Fee; Expenses. (a) Except as otherwise provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee or otherwise as expressly provided in all events shall be borne by Parentthis Agreement), all fees and expenses incurred by the parties Parties hereto shall be borne solely by the party hereto Party that has incurred such fees and expenses. For expenses whether or not the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the CompanyMerger is consummated.
(b) In The Company will pay to Parent $180,000,000 (the event that“Company Termination Fee”) (less the amount, if any, of the Parent Expenses previously paid by the Company to Parent pursuant to Section 7.3(d)) if:
(i) a Takeover Proposal shall have been made known Parent terminates this Agreement pursuant to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention Section 7.1(d)(i);
(whether or not conditionalii) to make a Takeover Proposal and thereafter (A) this Agreement is terminated pursuant to Section 7.1(c)(i7.1 (b)(ii) (solely in the event that the Company Stockholders Meeting has not occurred prior to the Outside Date), Section 7.1(b)(iv) or 7.1(d)(iSection 7.1(d)(ii), (B) hereof after the date of this Agreement but prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), after the date of this Agreement but prior to the date of the Company Stockholders Meeting (in the case of Section 7.1(b)(iv)) or after the date of this Agreement but prior to the breach giving rise to such right of termination (in the case of Section 7.1(d)(ii)), a third party has made a Company Acquisition Proposal that has become known to the public and such Takeover Company Acquisition Proposal has not been withdrawn prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), prior to the date of the Company Stockholders Meeting (in the case of Section 7.1(b)(iv)) or another Takeover Proposal with prior to the breach giving rise to such Person or any right of such Person’s Affiliates is consummated termination (in the case of Section 7.1(d)(ii)), and (C) within one year 9 months of such termination,, the Company enters into a definitive Contract to consummate any Company Acquisition Proposal which is subsequently consummated or any Company Acquisition Proposal is consummated. For the purposes of Section 7.3(b)(ii)(C) only, the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.4 except that all references to “15%” therein will be deemed to be references to “50%”; or
(iii) the Company terminates this Agreement pursuant to Section 7.1(c)(iii).
(c) Parent will pay to the Company $300,000,000 (the “Parent Termination Fee”) (less the amount, if any, of the Company Expenses previously paid by Parent to the Company pursuant to Section 7.3(e)) if:
(i) the Company terminates this Agreement pursuant to Section 7.1(c)(i); or
(ii) (A) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii7.1(b)(ii) (solely in the event that the Parent Stockholders Meeting has not occurred prior to the Outside Date), Section 7.1(b)(iii) or is terminated by the Company pursuant to Section 7.1(c)(ii), or(B) after the date of this Agreement but prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), after the date of this Agreement but prior to the date of the Parent Stockholders Meeting (in the case of Section 7.1(b)(iii)) or after the date of this Agreement but prior to the breach giving rise to such right of termination (in the case of Section 7.1(c)(ii)), a third party has made a Parent Acquisition Proposal that has become known to the public and such Parent Acquisition Proposal has not been withdrawn prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), prior to the date of the Parent Stockholders Meeting (in the case of Section 7.1(b)(iii)) or prior to the breach giving rise to such right of termination (in the case of Section 7.1(c)(ii)), and (C) within 9 months of such termination, Parent enters into a definitive Contract to consummate any Parent Acquisition Proposal which is subsequently consummated or any Parent Acquisition Proposal is consummated. For the purposes of Section 7.3(c)(ii)(C) only, the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in the definition thereof under Section 5.5 except that all references to “15%” therein will be deemed to be references to “50%”.
(iiid) The Company will pay to Parent the Parent Expenses if this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii7.1(b)(iv). Any Parent Expenses due under this Section 7.3(d) and will be paid by wire transfer of same-day funds as promptly as reasonably practicable following the date of termination of this Agreement (and, in any of event, within two Business Days thereof).
(xe) a direct or indirect acquisition or purchase of 15% or more of Parent will pay to the assets of Company the Company Expenses if this Agreement is terminated by the Company or any Parent pursuant to Section 7.1(b)(iii). Any Company Expenses due under this Section 7.3(e) will be paid by wire transfer of its Subsidiaries or 15% or more same-day funds as promptly as reasonably practicable following the date of any class termination of equity securities of the Company or any of its Subsidiariesthis Agreement (and, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% event, within two Business Days thereof).
(f) Any Company Termination Fee or more Parent Termination Fee due under Section 7.3(b) or Section 7.3(c) will be paid by wire transfer of any class of equity securities of the Company or any of its Subsidiaries, or same-day funds (zi) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (iSection 7.3(b)(i) or (iiiSection 7.3(c)(i) upon such consummation, a as promptly as reasonably practicable following the date of termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged 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 Merger Sub or (and, in any event, within two Business Days thereof), (ii) in the case of any rights of Section 7.3(b)(iii), on the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of Business Day on which this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.is terminated and
Appears in 1 contract
Termination Fee; Expenses. (a) Except In the event that this Agreement is terminated (i) by the Company pursuant to Section 9.1(d)(ii) as provided a result of an action by the Board of Directors of the Parent prior to obtaining the Parent Merger Shareholders' Approval or (ii) by Parent pursuant to Section 9.1(c)(ii) as a result of an action by the Board of Directors of the Company prior to obtaining the Company Shareholders' Approval, then (A) in this the event of termination pursuant to Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent9.1(c)(ii), the Company shall pay to Parent and (B) in the event of termination pursuant to Section 9.1(d)(ii), Parent shall pay to the Company, (promptly but in each case no later than five (5) business days after the date of termination of this Agreement) by wire transfer of same day funds, a termination fee of $150,000,000, plus, in each case, all of the terminating party's documented out-of-pocket expenses and fees incurred by the party (including, without limitation, fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of claritypayable to all legal, the cost of preparing printingaccounting, financial, and mailing other professionals arising out of, in connection with or related to the Proxy Statement and transactions contemplated by this Agreement) not in excess of $10,000,000 (the preliminary proxy statement shall be borne by the Company"Out-of-Pocket Expenses").
(b) In the event that:
that (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii9.1(e), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (zii) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction there shall have been an Acquisition Proposal involving the Company or any of its Subsidiaries Affiliates that has not been withdrawn and thereafter this Agreement is consummated terminated by Parent or the Company in the circumstances described in Section 9.1(b)(ii) or (b)(iii) or in accordance with Section 9.1(c)(i) and, in the case of this clause (ii) only, a definitive agreement with respect to such Acquisition Proposal is executed within one year two years of such termination, then the Company shall pay Parent a termination fee (the "Termination Fee") equal to $150,000,000 in cash plus the Out-of-Pocket Expenses of Parent; provided however, that, if such termination has occurred pursuant to Section 9.1(b)(ii) solely as a result of the failure to meet conditions set forth in Sections 8.1(e)(i) and (ii) with respect to the Nuclear Sale and Nuclear Approvals only, then the Company shall pay the Termination Fee plus the Out-of-Pocket Expenses of Parent if a definitive agreement with respect to such Acquisition Proposal is 60 executed within one business day year of such termination, ; provided further that there is no arrangement or in understanding between the case Company and the party making the Acquisition Proposal at the time of subclause such termination.
(ic) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges parties agree that the agreements contained in this Section 7.3 9.3 are an integral part of the transactions contemplated by hereby and constitute liquidated damages and not a penalty. The parties further agree that if any party is or becomes obligated to pay a termination fee pursuant to Sections 9.3(a) and (b), the right to receive such termination fee shall be the sole remedy of the other party with respect to the facts and circumstances giving rise to such payment obligation. If this Agreement is terminated by a party as a result of a willful breach of a representation, warranty, covenant or agreement by the other party, the non-breaching party may pursue any remedies available to it at law or in equity and thatshall be entitled to recover any amounts thereunder. Notwithstanding anything to the contrary contained in this Section 9.3, without these agreementsif one party fails to promptly pay to the other any fee or expense due under this Section 9.3, Parent and Merger Sub would not enter into this Agreement. In the event the Termination Fee becomes in addition to any amounts paid or payable pursuant to this Section 7.3such Section, the Company defaulting party shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the costs and expenses (including legal fees and expenses incurred by Parent and Merger Sub expenses) in connection with this Agreement and any action, including the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless filing of any alleged breach by Parent of its obligations hereunder; providedlawsuit or other legal action, that no payment made by taken to collect payment, together with interest on the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company amount of any breach unpaid fee at the publicly announced prime rate of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and providedCitibank, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub N.A. from the Company arising from date such breachfee was required to be paid.
Appears in 1 contract
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing Morgan shall pay to Parent, by wire transfer of immediately availxxxx xunds, a termination fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by amount of $1,000,000 (the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b"Termination Fee") In the event thatif:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 Morgan pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,8.01(f); or
(ii) this (X) xxis Agreement is terminated by Parent pursuant to Section 7.1(d)(ii8.01(b)(ii) or 8.01(g), or is terminated by the Company Parent or Morgan pursuant to Section 7.1(c)(ii8.01(h); (B) at any time after thx xxxx of this Agreement and prior to any such termination, an Acquisition Proposal with respect to Morgan shall have been publicly announced, 58 publicly proposed or commenced; and (C) within 18 months after the date of such termination, Morgan shall have entered into an agreement relating to an Axxxxxxtion Proposal or any Acquisition Proposal shall have been consummated.
(b) The Termination Fee shall be payable (i) on the date of termination of this Agreement in the case of clause (a)(i) above; and (ii) two business days after the first to occur of the execution of the agreement relating to an Acquisition Proposal or consummation of the Acquisition Proposal in the case of clause (a)(ii) above. Upon payment of the Termination Fee in accordance with this Section 8.03(b), orMorgan shall have no further liability to Parent at law or in equxxx xxth respect to such termination under Section 8.01(f), 8.01(b) or 8.01(g), with respect to any Out-of-Pocket Expenses under Section 8.03(c), or with respect to this Agreement.
(iiic) In the event that this Agreement is terminated (i) by either the Company or Morgan pursuant to Section 8.01(b), as a result of a breach by Paxxxx, (ii) by Parent pursuant to Section 7.1(b)(ii) and any 8.01(b)(i), as a result of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiariesbreach by Morgan, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon by either party pursuant to Section 8.01(c), as x xxxxlt of the other party's failure to comply with any provision hereof which failure was the cause, or resulted in, the failure of the Effective Time to occur on or before the date specified in Section 8.01(c), then the other party shall promptly (but not later than two business days after receipt of notice of such consummation, a termination fee from the terminating party) pay to the terminating party an amount equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket expenses and fees incurred by the terminating party (including, without limitation, fees and expenses incurred by Parent payable to all legal, accounting, financial, public relations and Merger Sub other professional advisors arising out of or in connection with this Agreement and or related to the Parent Merger or the other transactions contemplated hereby by this Agreement) (not exceeding $500,000 "Out-of-Pocket Expenses"). Upon payment of such Out-of-Pocket Expenses in accordance with this Section 8.03(c), the other party shall have no further liability to the terminating party at law or in equity with respect to such termination under Section 8.01(b) by Morgan, Section 8.01(b)(i) by Parent, or Section 8.01(c) by eithex xxxxy, or with respect to this Agreement.
(d) If either Parent or Morgan fails to pay all amounts due to the other party on the datxx xxxcified, then the breaching party shall pay all costs and expenses (including legal fees and expenses) incurred by the other party in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in the aggregate)Wall Street Journal, which payments shall be in addition from the date such amounts were required to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach until the date actually received by Parent of its obligations hereunder; providedeither Morgan or Parent, that no payment made by as 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachcase may be.
Appears in 1 contract
Samples: Merger Agreement (LNB Bancorp Inc)
Termination Fee; Expenses. (a) Except as otherwise provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee or otherwise as expressly provided in all events shall be borne by Parentthis Agreement), all fees and expenses incurred by the parties Parties hereto shall be borne solely by the party hereto Party that has incurred such fees and expenses. For expenses whether or not the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the CompanyMerger is consummated.
(b) In The Company will pay to Parent $180,000,000 (the event that“Company Termination Fee”) (less the amount, if any, of the Parent Expenses previously paid by the Company to Parent pursuant to Section 7.3(d)) if:
(i) a Takeover Proposal shall have been made known Parent terminates this Agreement pursuant to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention Section 7.1(d)(i);
(whether or not conditionalii) to make a Takeover Proposal and thereafter (A) this Agreement is terminated pursuant to Section 7.1(c)(i7.1 (b)(ii) (solely in the event that the Company Stockholders Meeting has not occurred prior to the Outside Date), Section 7.1(b)(iv) or 7.1(d)(iSection 7.1(d)(ii), (B) hereof after the date of this Agreement but prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), after the date of this Agreement but prior to the date of the Company Stockholders Meeting (in the case of Section 7.1(b)(iv)) or after the date of this Agreement but prior to the breach giving rise to such right of termination (in the case of Section 7.1(d)(ii)), a third party has made a Company Acquisition Proposal that has become known to the public and such Takeover Company Acquisition Proposal has not been withdrawn prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), prior to the date of the Company Stockholders Meeting (in the case of Section 7.1(b)(iv)) or another Takeover Proposal with prior to the breach giving rise to such Person or any right of such Person’s Affiliates is consummated termination (in the case of Section 7.1(d)(ii)), and (C) within one year 9 months of such termination,, the Company enters into a definitive Contract to consummate any Company Acquisition Proposal which is subsequently consummated or any Company Acquisition Proposal is consummated. For the purposes of Section 7.3(b)(ii)(C) only, the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.4 except that all references to “15%” therein will be deemed to be references to “50%”; or
(iii) the Company terminates this Agreement pursuant to Section 7.1(c)(iii).
(c) Parent will pay to the Company $300,000,000 (the “Parent Termination Fee”) (less the amount, if any, of the Company Expenses previously paid by Parent to the Company pursuant to Section 7.3(e)) if:
(i) the Company terminates this Agreement pursuant to Section 7.1(c)(i); or
(ii) (A) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii7.1(b)(ii) (solely in the event that the Parent Stockholders Meeting has not occurred prior to the Outside Date), Section 7.1(b)(iii) or is terminated by the Company pursuant to Section 7.1(c)(ii), or(B) after the date of this Agreement but prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), after the date of this Agreement but prior to the date of the Parent Stockholders Meeting (in the case of Section 7.1(b)(iii)) or after the date of this Agreement but prior to the breach giving rise to such right of termination (in the case of Section 7.1(c)(ii)), a third party has made a Parent Acquisition Proposal that has become known to the public and such Parent Acquisition Proposal has not been withdrawn prior to the date this Agreement is terminated (in the case of Section 7.1(b)(ii)), prior to the date of the Parent Stockholders Meeting (in the case of Section 7.1(b)(iii)) or prior to the breach giving rise to such right of termination (in the case of Section 7.1(c)(ii)), and (C) within 9 months of such termination, Parent enters into a definitive Contract to consummate any Parent Acquisition Proposal which is subsequently consummated or any Parent Acquisition Proposal is consummated. For the purposes of Section 7.3(c)(ii)(C) only, the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in the definition thereof under Section 5.5 except that all references to “15%” therein will be deemed to be references to “50%”.
(iiid) The Company will pay to Parent the Parent Expenses if this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii7.1(b)(iv). Any Parent Expenses due under this Section 7.3(d) and will be paid by wire transfer of same-day funds as promptly as reasonably practicable following the date of termination of this Agreement (and, in any of event, within two Business Days thereof).
(xe) a direct or indirect acquisition or purchase of 15% or more of Parent will pay to the assets of Company the Company Expenses if this Agreement is terminated by the Company or any Parent pursuant to Section 7.1(b)(iii). Any Company Expenses due under this Section 7.3(e) will be paid by wire transfer of its Subsidiaries or 15% or more same-day funds as promptly as reasonably practicable following the date of any class termination of equity securities of the Company or any of its Subsidiariesthis Agreement (and, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% event, within two Business Days thereof).
(f) Any Company Termination Fee or more Parent Termination Fee due under Section 7.3(b) or Section 7.3(c) will be paid by wire transfer of any class of equity securities of the Company or any of its Subsidiaries, or same-day funds (zi) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (iSection 7.3(b)(i) or Section 7.3(c)(i) as promptly as reasonably practicable following the date of termination of this Agreement (and, in any event, within two Business Days thereof), (ii) in the case of Section 7.3(b)(iii), on the Business Day on which this Agreement is terminated and (iii) upon such consummation, a termination fee equal to $3,000,000 million (in the “Termination Fee”case of Section 7.3(b)(ii) or Section 7.3(c)(ii), payable by wire transfer on the date of same day funds. consummation of the Company Acquisition Proposal or Parent Acquisition Proposal, as applicable.
(g) The Company acknowledges Parties acknowledge that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement. In ; accordingly, if either the event Company or Parent fails promptly to pay any amount due pursuant to this Section 7.3, and, in order to obtain such payment, the Termination Fee becomes payable Company or Parent, as applicable, commences a suit that results in a judgment against the Company or Parent, as applicable, for any amount due pursuant to this Section 7.3, the Company non-prevailing Party that is required to pay any such fee shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the prevailing Party entitled to receive such fee its costs and expenses (including reasonable attorneys’ fees and expenses incurred by Parent and Merger Sub expenses) in connection with this Agreement and such suit, together with interest on the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid amount due pursuant to this Section 7.3 regardless from the date such payment was required to be made until the date of any alleged breach by Parent of its obligations hereunder; provided, that no payment made by at the Company pursuant prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made. All payments under this Section 7.3 shall operate or be construed as a waiver made by the Company wire transfer of any breach of this Agreement immediately available funds to an account designated in writing by Parent or Merger Sub the Company, as applicable. In no event shall a (i) Company Termination Fee be payable more than once or of any rights of the Company in respect thereof or as a waiver by (ii) Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall Fee be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachpayable more than once.
Appears in 1 contract
Samples: Merger Agreement (Albemarle Corp)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent)The Company agrees that, all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
if (i) the Company shall terminate this Agreement pursuant to Section 9.1(h), (ii) Parent shall terminate this Agreement pursuant to Section 9.1(e), or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 9.1(c) due to the failure to obtain the approval of the Company's stockholders at a Takeover Proposal Company Special Meeting and at the time of such failure, any person shall have been made known a public announcement or otherwise communicated to the Company or shall have been made directly its stockholders with respect to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Alternative Proposal with respect to the Company which has not been rejected by the Company and terminated or withdrawn by the party making the Alternative Proposal, then in accordance with Section 9.3(c), immediately prior to such Person termination in the case of clause (i), or any in the case of such Person’s Affiliates is consummated within one year of such termination,
clause (ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either if, within two years following the date of termination, the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) enters into a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiariesdefinitive acquisition, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution merger or similar transaction involving the Company or any of its Subsidiaries is consummated within one year agreement to effect an Alternative Proposal upon execution of such terminationagreement, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee an amount equal to Parent's documented Expenses (as defined below) not in excess of $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby and a termination fee in an amount equal to $42,000,000 (not exceeding $500,000 collectively, such Expenses and such fee, the "Termination Amount").
(b) Each of Parent and the Company agrees that the payments provided for in Section 9.3(a) shall be the aggregatesole and exclusive remedy of the parties upon a termination of this Agreement pursuant to Section 9.1(c), which payments (e) or (h), as the case may be, and such remedy shall be in addition limited to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this payment stipulated in Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder9.3(a); provided, however, that no nothing in this Agreement shall relieve any party from liability for the willful breach of any of its representations and warranties or the willful breach of any of its covenants or agreements set forth in this Agreement.
(c) Any payment required to be made pursuant to clause (i) of Section 9.3(a) shall be made to Parent by the Company pursuant immediately prior to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach termination of this Agreement and shall be made by Parent or Merger Sub or wire transfer of immediately available funds to an account designated by Parent.
(d) The parties agree that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by the Agreement and constitute liquidated damages and not a penalty. If one party fails to promptly pay to the other any fee due hereunder, the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any rights lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime rate of Citibank, N.A. from the date such fee was required to be paid.
(e) For purposes of this Agreement, "Expenses" consist of all out-of- pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf, in connection with or related to, the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Company in respect thereof or as a waiver by Parent or Merger Sub Proxy Statement and/or any documents relating thereto, the solicitation of any breach of this Agreement by stockholder approvals and all other matters relating to the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachtransactions contemplated hereby.
Appears in 1 contract
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent)The Company agrees that, all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
if (i) the Company shall terminate this Agreement pursuant to Section 9.1(h), (ii) Parent shall terminate this Agreement pursuant to Section 9.1(e), or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 9.1(c) due to the failure to obtain the approval of the Company's stockholders at a Takeover Proposal Company Special Meeting and at the time of such failure, any person shall have been made known a public announcement or otherwise communicated to the Company or shall have been made directly its stockholders with respect to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Alternative Proposal with respect to the Company which has not been rejected by the Company and terminated or withdrawn by the party making the Alternative Proposal, then in accordance with Section 9.3(c), immediately prior to such Person termination in the case of clause (i), or any in the case of such Person’s Affiliates is consummated within one year of such termination,
clause (ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either if, within two years following the date of termination, the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) enters into a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiariesdefinitive acquisition, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution merger or similar transaction involving the Company or any of its Subsidiaries is consummated within one year agreement to effect an Alternative Proposal upon execution of such terminationagreement, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee an amount equal to Parent's documented Expenses (as defined below) not in excess of $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby and a termination fee in an amount equal to $42,000,000 (not exceeding $500,000 collectively, such Expenses and such fee, the "Termination Amount").
(b) Each of Parent and the Company agrees that the payments provided for in Section 9.3(a) shall be the aggregatesole and exclusive remedy of the parties upon a termination of this Agreement pursuant to Section 9.1(c), which payments (e) or (h), as the case may be, and such remedy shall be in addition limited to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this payment stipulated in Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder9.3(a); provided, however, that no nothing in this Agreement shall relieve any party from liability for the willful breach of any of its representations and warranties or the willful breach of any of its covenants or agreements set forth in this Agreement.
(c) Any payment required to be made pursuant to clause (i) of Section 9.3(a) shall be made to Parent by the Company pursuant immediately prior to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach termination of this Agreement and shall be made by Parent or Merger Sub or wire transfer of immediately available funds to an account designated by Parent.
(d) The parties agree that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by the Agreement and constitute liquidated damages and not a penalty. If one party fails to promptly pay to the other any fee due hereunder, the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any rights lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime rate of Citibank, N.A. from the date such fee was required to be paid.
(e) For purposes of this Agreement, "Expenses" consist of all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf, in connection with or related to, the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Company in respect thereof or as a waiver by Parent or Merger Sub Proxy Statement and/or any documents relating thereto, the solicitation of any breach of this Agreement by stockholder approvals and all other matters relating to the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachtransactions contemplated hereby.
Appears in 1 contract
Termination Fee; Expenses. (a) Except as provided in If this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event thatAgreement is terminated:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by 7.1(g) in the Company pursuant to Section 7.1(c)(ii), event of an Adverse Recommendation Change; or
(iiiii) this Agreement is terminated (x) by either the Company or Parent pursuant to Section 7.1(b)(ii7.1(d)(i) and any of hereof, (xy) a direct Company Takeover Proposal shall have been publicly announced or indirect acquisition or purchase of shall have become publicly known and shall not have been publicly withdrawn by a date that is at least fifteen (15% or more ) Business Days prior to the Company Stockholders’ Meeting and (z) within twelve (12) months of the assets termination of this Agreement, the Company or any of its Subsidiaries enters into a definitive agreement with a third party with respect to or 15% or more of any class of equity securities of the consummates a transaction that is a Company or any of its Subsidiaries, (y) Takeover Proposal with a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, third party; then the Company shall pay to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) in immediately available funds in the case of clause (i), within one business day two (2) Business Days of such termination, or or, in the case of subclause clause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”ii), payable by wire transfer upon the earlier of same day funds. The Company acknowledges that the agreements contained in this Section 7.3 are an integral part of entry into a definitive agreement with respect to the transactions contemplated by such Company Takeover Proposal and the consummation of such transactions.
(b) If this Agreement and that, without these agreements, is terminated by (A) either 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder; provided, that no payment made by or the Company pursuant to this Section 7.3 shall operate 7.1(c) in connection with any injunction, order, decree or be construed as a waiver by ruling relating to gaming, antitrust or related Laws or any related consents or approvals, including the Gaming Approvals or (B) either Parent or the Company pursuant to Section 7.1(b) and at the time of such termination, any breach of this Agreement by Parent or Merger Sub or of any rights of the Company conditions set forth in respect thereof Section 6.1(b), Section 6.1(e) or as a waiver by Section 6.1(h) shall not have been satisfied and the conditions in Section 6.1(a)(i), Section 6.1(f), Section 6.3(a), Section 6.3(b), Section 6.3(c) and Section 6.3(d) have been satisfied or are capable of being satisfied at or prior to the Closing, then Parent or Merger Sub of any breach of this Agreement by shall pay to the Company or of promptly (but in any rights of event no later than the second Business Day after such termination), the Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, ; provided that Parent shall not be obligated to pay such fee if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from primary cause of such breachtermination was an adverse suitability finding under Gaming Laws with respect to the OpCo Business.
Appears in 1 contract
Samples: Merger Agreement (Gaming & Leisure Properties, Inc.)
Termination Fee; Expenses. (a) Except as provided in If this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event thatAgreement is terminated:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated 7.1(h) in the event of a Company Adverse Recommendation Change;
(ii) by the Company pursuant to Section 7.1(c)(ii7.1(k), ; or
(iii) this Agreement is terminated (A) by either the Company or Parent pursuant to Section 7.1(b)(ii7.1(d), (B) if a Company Takeover Proposal shall have been publicly announced or shall have become publicly known and any of shall not have been publicly withdrawn by a date that is at least 15 Business Days prior to the Company Stockholders’ Meeting and (xC) a direct or indirect acquisition or purchase of 15% or more within 12 months of the assets termination of this Agreement, the Company or any of its Subsidiaries enters into a definitive agreement with a third party with respect to or 15% or more of any class of equity securities of the consummates a transaction that is a Company or any of its Subsidiaries, (y) Takeover Proposal with a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, third party; then the Company shall pay to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) in immediately available funds in the case of clause (i), within one business day two Business Days of such termination, or, in the case of clause (ii), at or prior to such termination, or, in the case of clause (iii), upon the earlier of the entry into a definitive agreement with respect to the transactions contemplated by such Company Takeover Proposal and the consummation of such transactions (it being understood that, for purposes of this Section 7.3(a), each reference to “15%” in the definition of “Company Takeover Proposal” in Section 8.15(b) shall be deemed to be a reference to “50.1%”).
(b) If this Agreement is terminated:
(i) by the Company pursuant to Section 7.1(i) in the event of a Parent Adverse Recommendation Change;
(ii) by Parent pursuant to Section 7.1(j); or
(iii) (A) by the Company or Parent pursuant to Section 7.1(e), (B) if a Parent Takeover Proposal shall have been publicly announced or shall have become publicly known and shall not have been publicly withdrawn by a date that is at least 15 Business Days prior to the Parent Stockholders’ Meeting and (C) within 12 months of the termination of this Agreement, Parent or any of its Subsidiaries enters into a definitive agreement with a third party with respect to or consummates a transaction that is a Parent Takeover Proposal with a third party; then Parent shall pay to the Company the Parent Termination Fee by wire transfer (to an account designated by the Company) in immediately available funds in the case of clause (i), within two Business Days of such termination, or, in the case of clause (ii), at or prior to such termination, or, in the case of clause (iii), upon the earlier of the entry into a definitive agreement with respect to the transactions contemplated by such Parent Takeover Proposal and the consummation of such transactions (it being understood that, for purposes of this Section 7.3(b), each reference to “15%” in the definition of “Parent Takeover Proposal” in Section 8.15(b) shall be deemed to be a reference to “50.1%”).
(c) If this Agreement is terminated:
(i) (A) by Parent or the Company pursuant to (x) Section 7.1(b) if, at the time of such termination, the conditions to Closing set forth in Section 6.1(d) or Section 6.1(e) (in either case of Section 6.1(d) or Section 6.1(e), solely to the extent the matter giving rise to the failure of such condition is related only to the approval under an Antitrust Law of a Chinese Governmental Entity and no other Antitrust Law or other Law) shall not have been satisfied but all other conditions to Closing shall have been satisfied (or in the case of subclause (i) conditions that by their terms are to be satisfied at the Closing, shall be capable of being satisfied on, shall have been satisfied or waived, on the date of such termination), or (iiiy) upon Section 7.1(c) (solely to the extent an injunction shall have been entered by a Chinese Governmental Entity (and no other Governmental Entity) pursuant to an Antitrust Law permanently restraining, enjoining or otherwise prohibiting the consummation of the Mergers and such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”injunction shall have become final and nonappealable), payable and (B) the Company has complied, in all material respects, with its covenants and agreements set forth in Section 5.7 (without giving any effect to any breach of, or action or inaction of the Company of which Parent had knowledge required under, Section 5.7, but failed to provide prompt notice in accordance with Section 5.7); then Parent shall pay to the Company the Parent China Regulatory Termination Fee by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 7.3 are (to 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder; provided, that no payment made account designated by the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company Company) in immediately available funds within two Business Days of any breach of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachtermination.
Appears in 1 contract
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention If (whether or not conditional) to make a Takeover Proposal and thereafter this Agreement is terminated pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(iiA) this Agreement is validly terminated by Parent and Carve-out Buyer pursuant to the provisions of Section 7.1(d)(ii9.1(d), or (B) this Agreement 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, or
(iii2) this Agreement is validly terminated by either Parent and Carve-out Buyer, on the Company one hand, or Parent the Company, on the other hand, pursuant to Section 7.1(b)(ii9.1(b)(i) or Section 9.1(b)(iii), 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 (x) a direct or indirect acquisition or purchase of 15% or more of the assets of such termination, the Company or any of its Subsidiaries has entered into a definitive agreement providing for a Qualifying Transaction or 15% completed a Qualifying Transaction, in each case, the Company shall pay to each of Parent and Carve-out Buyer (or one or more of any class of equity securities their respective designees) its Pro Rata Portion of the Company or any Termination Fee, such Termination Fee to be due (x) in the case of its Subsidiariesclause (A) of this Section 9.2(b), concurrently with such termination and payable in accordance with Section 9.2(b)(iii), (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more the case of any class clause (B) of equity securities of the Company or any of its Subsidiariesthis Section 9.2(b), or concurrently with such termination and payable in accordance with Section 9.2(b)(iii), and (z) a mergerin the case of clause (C) of this Section 9.2(b), consolidationconcurrently with the earlier of entering into such definitive agreement with respect to such Qualifying Transaction and consummation of such Qualifying Transaction, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving and payable in accordance with Section 9.2(b)(iii). In no event shall the Company be required to pay the Termination Fee on more than one occasion.
(ii) If this Agreement is validly terminated by Parent and Carve-out Buyer pursuant to Section 9.1(f), and such termination was the result of the Company’s knowing or deliberate breach or failure to perform any of its Subsidiaries is consummated within one year of such terminationthe covenants or agreements in this Agreement, then the Company shall pay to Parent within and Carve-out Buyer (or one business day or more of such termination, or in the case of subclause (itheir respective designees) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that immediately available funds (to accounts designated by Parent and Carve-out Buyer) an amount equal to the agreements contained Parent Expenses and the COB Expenses, respectively, and such payment shall be made within two Business Days after such termination.
(iii) Notwithstanding anything to the contrary in this Section 7.3 are an integral part Agreement, payment 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 shall constitute liquidated damages, and upon payment of the Termination Fee in full, if, as and when required pursuant to this Section 7.39.2, the Company shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub have no further liability of any kind for any reason in connection with this Agreement and or the transactions valid termination contemplated hereby other than as provided under this Section 9.2(b); provided that prior to the payment of the Termination Fee, if, as and when due pursuant to this Section 9.2, the Company shall provide Parent and Carve-out Buyer with written notice of its intention to pay such Termination Fee and, within seven Business Days of receipt of such written notice, Parent and Carve-out Buyer will be required to provide irrevocable and unconditional confirmation to the Company in writing that they intend to either (but not exceeding $500,000 both) (A) receive payment of the Termination Fee, in which case, such Termination Fee will be paid by the aggregate)Company to each of Parent and Carve-out Buyer (or their respective designees) in accordance with their respective Pro Rata Portion by wire transfer (to the accounts designated by Parent and Carve-out Buyer in such notice) in immediately available funds within two Business Days of such written confirmation or (B) directly or indirectly, which payments shall be in addition pursue an award of damages, subject to irrevocably and unconditionally agreeing not to (and causing their respective Affiliates not to) exercise, and agreeing to waive, any and all claims and rights they have (or their respective Affiliates) may have to the Termination Fee. The fee arrangement contemplated hereby shall Notwithstanding anything to the contrary herein, under no circumstances whatsoever will Parent and Carve-out Buyer be paid pursuant entitled to this Section 7.3 regardless receive both an award of monetary damages and payment of all or any alleged breach by Parent portion 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.
Appears in 1 contract
Samples: Merger Agreement (Om Group Inc)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
If (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i9.1(c)(iv) or 7.1(d)(i) hereof and such Takeover Proposal 9.1(e); or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) (x) a Company Third-Party Acquisition Offer shall have been made to the Company and shall have become known publicly prior to the termination of this Agreement, (y) this Agreement is shall have been terminated by Parent pursuant to Section 7.1(d)(ii9.1(b) (other than by reason of the failure of the conditions set forth in any of Sections 8.1(b), (c) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.3 to be fulfilled), or is terminated pursuant to Section 9.1(c)(ii) or 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 Section 9.3(a)(i), upon termination of this Agreement, and (y) in the case of Section 9.3(a)(ii), upon consummation of a Company Third-Party Acquisition. It shall be a condition to termination of this Agreement 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), or
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 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) this Agreement is terminated by either any transaction pursuant to which any third party acquires assets of the Company or Parent pursuant having a fair market value equal to Section 7.1(b)(ii) and any at least 40% of (x) a direct or indirect acquisition or purchase of 15% or more all of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of and its Subsidiaries, (y) taken as a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiarieswhole, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of immediately prior to such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause transaction.
(i) The existence of the right to receive payment pursuant to this Section 9.3 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; provided, however, the successful exercise of the right under this Section 9.3 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise.
(iiiii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges parties agree that the agreements contained in this Section 7.3 9.3 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. In a penalty.
(iii) If the event the Termination Fee becomes payable pursuant Company fails to pay promptly to Buyer any amount due under this Section 7.39.3, the Company shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the costs and expenses of Buyer (including legal fees and expenses incurred by Parent and Merger Sub expenses) in connection with this Agreement and any action, including the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless filing of any alleged breach by Parent of its obligations hereunder; providedlawsuit or other legal action, that no payment made by taken to collect payment, together with interest on the Company pursuant to this Section 7.3 shall operate or be construed as a waiver by the Company amount of any breach unpaid fee at the publicly announced prime or base rate of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and providedXxxxx Fargo Bank Minnesota, furtherN.A., that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from date such breachfee was required to be paid.
Appears in 1 contract
Samples: Merger Agreement (Netsilicon Inc)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
(i) this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii) then the Company shall pay to Parent a Takeover termination fee of $20,000,000 in cash (the “Termination Fee”); or
(ii) (x) at any time after the date of this Agreement, an Alternative Proposal shall have been made known to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention disclosed, (whether or not conditionaly) to make a Takeover Proposal and thereafter this Agreement is terminated by Parent pursuant to Section 7.1(c)(i7.1(b)(i) and as of the date of such termination the conditions to Parent’s obligation to close set forth in Section 6.3(a) or 7.1(d)(iSection 6.3(b) hereof are not satisfied, or this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) (so long as, in the case of Section 7.1(b)(iii), the Alternative Proposal was publicly disclosed and such Takeover not withdrawn at the time of the Company Meeting) and (z) within 12 months after this termination, the Company enters into an agreement in respect of any Alternative Proposal or another Takeover a transaction pursuant to which any Alternative Proposal with is consummated, then the Company shall pay to Parent the Termination Fee (provided, that, for purpose of this Section 7.2(a)(ii), the term “Alternative Proposal” shall have the meaning assigned to such Person term in Section 5.3(h), except that the references to “15% or any of such Person’s Affiliates is consummated within one year of such terminationgreater” and “15% or more” shall be deemed to be references to “50% or greater” and “50% or more,” respectively); or
(iiiii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 7.3 are an integral part all of the transactions contemplated by this Agreement and that, without these agreements, Expenses (as hereinafter defined) of Parent and Merger Sub would not enter into this Agreement. In and their affiliates, and thereafter the event Company shall be obligated to pay to Parent the Termination Fee becomes payable (net of the amount of any Expenses previously actually paid to Parent pursuant to this clause (iii) of Section 7.37.2(a)) in the event that, within 12 months after this termination, the Company shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub enters into an agreement in connection with respect of any Alternative Proposal or a transaction pursuant to which an Alternative Proposal is consummated (provided that for purpose of this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregateSection 7.2(a)(iii), which payments the term “Alternative Proposal” shall have the meaning assigned to such term in Section 5.3(h), except that the references to “15% or greater” and “15% or more” shall be in addition deemed to the Termination Feebe references to “50% or greater” and “50% or more,” respectively). The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder; providedAs used herein, 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.“
Appears in 1 contract
Samples: Merger Agreement (Egl Inc)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent)The Company agrees that, all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
if (i) a Takeover Proposal the Company shall terminate this Agreement pursuant to Section 9.1(h), (ii) Parent shall terminate this Agreement pursuant to Section 9.1(e), or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 9.1(c) due to the failure to obtain the approval of the Company's stockholders at Company Special Meeting and at the time of such failure, any person shall have been made known a public announcement or otherwise communicated to the Company or shall have been made directly its stockholders with respect to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Alternative Proposal with respect to the Company which has not been rejected by the Company and terminated or withdrawn by the party making the Alternative Proposal, then in accordance with Section 9.3(c), immediately prior to such Person termination in the case of clause (i), or any in the case of such Person’s Affiliates is consummated within one year of such termination,
clause (ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either if, within two years following the date of termination, the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) enters into a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiariesdefinitive acquisition, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution merger or similar transaction involving the Company or any of its Subsidiaries is consummated within one year agreement to effect an Alternative Proposal upon execution of such terminationagreement, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee an amount equal to Parent's documented Expenses (as defined below) not in excess of $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby and a termination fee in an amount equal to $42,000,000(collectively, such Expenses and such fee, the "Termination Amount").
(not exceeding $500,000 b) Each of Parent and the Company agrees that the payments provided for in Section 9.3(a) shall be the aggregatesole and exclusive remedy of the parties upon a termination of this Agreement pursuant to Section 9.1(c), which payments (e) or (h), as the case may be, and such remedy shall be in addition limited to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this payment stipulated in Section 7.3 regardless of any alleged breach by Parent of its obligations hereunder9.3(a); provided, however, that no nothing in this Agreement shall relieve any party from liability for the willful breach of any of its representations and warranties or the willful breach of any of its covenants or agreements set forth in this Agreement.
(c) Any payment required to be made pursuant to clause (i) of Section 9.3(a) shall be made to Parent by the Company pursuant immediately prior to this Section 7.3 shall operate or be construed as a waiver by the Company of any breach termination of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered made by Parent or Merger Sub from the Company arising from such breachwire transfer of immediately available funds to an account designated by Parent.
Appears in 1 contract
Samples: Merger Agreement (Lyonnaise American Holding Inc Et Al)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
(i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s 's Affiliates is consummated within one year of such termination,
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii), or
(iii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and any of (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “"Termination Fee”"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in 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 also promptly pay upon Parent’s 's request, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach.
Appears in 1 contract
Termination Fee; Expenses. (a) Except The Company will pay, or cause to be paid, to Parent an amount equal to $78,000,000 (the “Termination Fee”) if this Agreement is terminated:
(i) (A) pursuant to Section 7.01(c)(i)(A)(x) (Adverse Company Recommendation) prior to the Company Shareholders’ Meeting, or any adjournment or postponement thereof, in either case, at which a final vote with respect to the Required Shareholder Vote was taken or (B) pursuant to Section 7.01(c)(i)(A)(y) (material breach of Non-Solicit) or Section 7.01(c)(i)(B) (failure to call Company Shareholders’ Meeting); or
(ii) (A) pursuant to Section 7.01(b)(i), Section 7.01(b)(iii) (so long as provided Parent has complied with its obligations set forth in Section 5.18(a)) or Section 7.01(c)(ii), (B) at the time of such termination, an Acquisition Proposal or Inquiry has been made and (C) within 18 months after the date of such termination, the Company enters into a definitive agreement in respect of, or consummates, an Acquisition Proposal (whether in connection with the Acquisition Proposal or Inquiry referred to in clause (B) of this Section 7.03(a)(ii) or otherwise). The Termination Fee, less the amount of any Parent Expenses previously paid to Parent pursuant to Section 7.03(c), if any, shall be paid by wire transfer of immediately available funds no later than (x) with respect to the foregoing clause (i), within three (3) Business Days after such termination or (y) with respect to the foregoing clause (ii), within three (3) Business Days after entering into such definitive agreement with respect to, or the consummation of, such Acquisition Proposal, in each case to an account designated by Parent. Parent shall have the right to assign the right to receive the Termination Fee and/or Parent Expenses to one or more Persons in its sole discretion; provided, that, for the avoidance of doubt, any such assignment shall not in any manner whatsoever affect the parties’ agreement set forth in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company7.03.
(b) In the event that:
(i) a Takeover Proposal shall have been made known Parent will pay, or cause to be paid, to the Company or shall have been made directly an amount equal to its shareholders generally or any Person shall have publicly announced an intention $117,000,000 (whether or not conditionalthe “Parent Termination Fee”) to make a Takeover Proposal and thereafter if this Agreement is terminated pursuant to Section 7.1(c)(i7.01(d)(i). The Parent Termination Fee shall be paid by wire transfer of immediately available funds no later than within three (3) or 7.1(d)(i) hereof and Business Days after such Takeover Proposal or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,termination to an account designated by the Company.
(iic) Except as otherwise specifically provided herein, each party shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby. Notwithstanding the foregoing, in the event this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii7.01(b)(iii) (so long as Parent has complied with its obligations set forth in Section 5.18(a)) or Section 7.01(c)(ii) (Company breach), then the Company shall, following receipt of an invoice therefor, no later than three (3) Business Days after the date of such termination, pay, or is terminated cause to be paid, to an account designated by Parent, all of Parent’s and Merger Sub’s reasonable out-of-pocket fees and expenses (including reasonable legal fees and expenses and expenses in connection with the Financing) actually incurred by Parent and Merger Sub on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement in an amount that shall in no event exceed $15,000,000 (the “Parent Expenses”); provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 7.1(c)(ii), or
(iii7.03(a) this Agreement is terminated by either shall not relieve the Company or of its obligations to pay the Parent Expenses pursuant to this Section 7.03(c); provided further that the payment by the Company of the Parent Expenses pursuant to this Section 7.03(c) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 7.1(b)(ii7.03(a), except to the extent indicated in Section 7.03(a) (it being understood and agreed that any of (x) a direct or indirect acquisition or purchase of 15% or more payment of the assets Termination Fee shall be net of, and not in addition to, any payment of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, Parent Expenses).
(yd) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable by wire transfer of same day funds. The Company and Parent each acknowledges that the agreements contained in this Section 7.3 7.03 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, Parent and Merger Sub the Company would not enter into this Agreement. In ; accordingly, if the event the Termination Fee becomes payable Company or Parent, as applicable, fails to promptly pay any amount due pursuant to this Section 7.37.03 and, in order to obtain such payment, the Company Person entitled to such payment commences a suit that results in a Judgment against the owing party for the amounts set forth in this Section 7.03 (or a portion of any such fees or expenses), the owing party shall also promptly pay upon Parent’s request, all reasonably documented out-of-pocket the Person entitled to such payment its costs and expenses (including reasonable legal fees and expenses incurred by Parent and Merger Sub expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate published in the Money Rates section of The Wall Street Journal in effect on the date such payment was required to be made. The Company and Parent each acknowledges that any amount payable pursuant to Section 7.03(a) or (b) does not constitute a penalty, but rather shall constitute liquidated damages in a reasonable amount that will compensate the applicable Party for the disposition of its rights under this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate)circumstances in which such amounts are due and payable, which payments shall amounts would otherwise be impossible to calculate with precision.
(e) Other than in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of connection with any alleged knowing or intentional material 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 Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of their respective covenants or agreements in this Agreement (except as contemplated by Section 7.01(d)(i)), (i) the Company’s right to receive payment of the Parent Termination Fee from Parent pursuant to Section 7.03(b) shall be the Company’s sole and exclusive remedy against any Parent Related Party or any Financing Source for any damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated due to the proceeds from the Debt Financing not having been obtained, whether at law or equity, in contract, in tort or otherwise and (ii) upon payment of the Parent Termination Fee pursuant to the terms hereof, the Company shall have no further rights or claims against any Parent Related Party or any Financing Source under or arising out of this Agreement by the Company Agreement, whether at law or of any rights of Parent equity, in contract, in tort or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachotherwise.
Appears in 1 contract
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
(i) If (A) a Takeover Competing Proposal shall have been made known publicly announced after the date hereof and not withdrawn prior to the Company Special Meeting or shall have been made directly prior to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and thereafter the termination of this Agreement is terminated pursuant to Section 7.1(c)(iif there has been no Special Meeting, (B) or 7.1(d)(i) hereof and such Takeover Proposal or another Takeover Proposal with such Person or any following the occurrence of such Person’s Affiliates is consummated within one year of such termination,
a public announcement described in the preceding clause (ii) A), this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or is terminated by the Company pursuant to Section 7.1(c)(ii8.1(a)(iii) or Section 8.1(a)(vi), orand (C) within twelve (12) months of the date this Agreement is terminated, the Company enters into a definitive agreement with respect to any Competing Proposal and thereafter such Competing Proposal is consummated (in each case whether or not the Competing Proposal was the same Competing Proposal referred to in clause (A));
(ii) If Parent terminates this Agreement pursuant to Section 8.1(a)(iv) and Parent and Purchaser are not in breach of this Agreement at the time of such termination;
(iii) If the Company terminates this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(ii) and 8.1(a)(v); 31344360_15 then, in any of such event under clauses (x) a direct or indirect acquisition or purchase of 15% or more of the assets of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiariesi), (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year of such termination, then the Company shall pay to Parent within one business day of such termination, or in the case of subclause (iii) or (iii) upon such consummationof this Section 8.2(b), within five (5) business days after the date of termination of the Agreement or the consummation of the Competing Proposal, as applicable, the Company shall pay a termination fee equal to of $3,000,000 million 1,500,000 in cash (the “Termination Fee”)) and, payable by wire transfer following such termination upon the payment of same day funds. The Company acknowledges that the agreements contained in 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 and Parent Expenses as provided in Section 7.38.2(b)(v), the Company shall also have no further liability with respect to this Agreement or the Transactions to Parent or Purchaser, provided however, that, in the event of a termination pursuant to clause (i) of this Section 8.1(b), the Termination Fee payable to Parent shall be reduced by the amount of any Parent Expenses paid or payable to Parent pursuant to Section 8.1(b)(v) that are in excess of the Lower Cap.
(iv) For purposes of this Section 8.2(b), the term “Competing Proposal” used in Section 8.2(b)(i)(C) shall have the meaning assigned to such term in Section 9.5, except that the reference to “at least 20%” in the definition of “Competing Proposal” shall be deemed to be a reference to “at least 50%.”
(v) In the event that, (A) The Company shall terminate this Agreement pursuant to Section 8.1(a)(v) or Section 8.1(a)(vi); or (B) Parent shall terminate this Agreement pursuant to Section 8.1(a)(ii), Section 8.1(a)(iv) or Section 8.1(a)(vi) then in any such event the Company shall pay Parent or its designees, as promptly pay upon Parent’s requestas possible (but in any event within five (5) business days) following the delivery by Parent of an invoice therefor, all reasonably documented reasonable out-of-pocket fees and expenses incurred by Parent Parent, Purchaser and Merger Sub their respective Affiliates in connection with this Agreement and the transactions contemplated hereby Transactions, including, without limitation, an equity commitment fee in connection with the arrangement of the Equity Financing payable by Parent to AIP Capital Fund IV, L.P. in the amount of $450,000 (“Parent Expenses”), provided however, that, the Parent Expenses payable by the Company shall not exceeding exceed, (i) in the event that the Termination Fee is payable by the Company upon any such termination, an aggregate amount of $500,000 (the “Lower Cap”), and (ii) in the aggregate), which payments shall be in addition to event the Termination FeeFee is not payable by the Company upon any such termination, an aggregate amount of $950,000. The fee arrangement contemplated hereby shall be paid expenses payable pursuant to this Section 7.3 regardless 8.2(b)(v) shall be paid in cash within ten business days after demand therefor following the occurrence of any alleged breach by Parent of its obligations hereunder; provided, that no the termination event giving rise to the payment made by the Company pursuant to obligation described in this Section 7.3 shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breach8.2(b)(v).
Appears in 1 contract
Samples: Merger Agreement (Presstek Inc /De/)
Termination Fee; Expenses. (a) Except as provided in this Section 7.3 and except for the filing fee under the HSR Act (which filing fee in all events shall be borne by Parent), all fees and expenses incurred by the parties hereto shall be borne solely by the party hereto that has incurred such fees and expenses. For the sake of clarity, the cost of preparing printing, and mailing the Proxy Statement and the preliminary proxy statement shall be borne by the Company.
(b) In the event that:
If (i) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its shareholders 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 pursuant to Section 7.1(c)(i9.1(c)(iv) or 7.1(d)(i) hereof and such Takeover Proposal 9.1(e); or another Takeover Proposal with such Person or any of such Person’s Affiliates is consummated within one year of such termination,
(ii) (x) a Company Third-Party Acquisition Offer shall have become known publicly prior to the termination of this Agreement, (y) this Agreement shall have been terminated pursuant to Section 9.1(b), 9.1(c)(i) or 9.1(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Section 8.1(b), (c), (d) or (e)to be fulfilled or the failure of the conditions set forth in Section 8.3 to be fulfilled), or pursuant to Section 9.1(c)(ii) or 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 provided that the Company did not otherwise have the right to terminate the Agreement pursuant to Sections 9.1(d)(iv) or 9.1(d)(v), then the Company shall pay to Buyer a fee equal to $1.6 million in cash (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 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 shall be paid 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 9.3(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 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 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 otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, stockholders other than the stockholders of the Company immediately 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.
(b) If this Agreement is terminated by Parent Buyer pursuant to Section 7.1(d)(ii9.1(c)(v) under conditions that otherwise would not entitle Buyer to the Termination Fee and Buyer Expense Reimbursement Amount pursuant to Section 9.3(a), or and provided that the Company did not otherwise have the right to terminate this Agreement pursuant to Section 9.1(d), then the Company shall pay to Buyer the Buyer Expense Reimbursement Amount. If this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii9.1(d)(iv) under conditions that otherwise would not entitle Buyer to the Termination Fee and Buyer Expense Reimbursement Amount pursuant to Section 9.3(a), or
and provided that the Buyer did not otherwise have the right to terminate this Agreement pursuant to Section 9.1(c), then Buyer shall pay to the Company an amount, in cash, not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by the Company (iiiincluding 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. If this Agreement is terminated by either under condition that entitle Buyer to receive the Buyer Expense Reimbursement Amount, or entitle the Company or Parent pursuant to receive a payment under this Section 7.1(b)(ii) and any of (x) 9.1(b), then the party entitled to receive such payment shall provide the party required to make such payment with a direct or indirect acquisition or purchase of 15% or more reasonably detailed summary of the assets amount of the Company or any of its Subsidiaries or 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (y) a tender offer or exchange offer resulting in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries, or (z) a merger, consolidation, share exchange, such payment within 15 business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries is consummated within one year days of such termination. Within three business days after the received of such summary, then the Company party required to make such payment shall pay to Parent within one business day of such termination, or in the case of subclause (i) or (iii) upon such consummation, a termination fee equal to $3,000,000 million (the “Termination Fee”), payable amount by wire transfer of same day funds. funds to an account designated by the party entitled to receive such payment.
(c) (i) The Company acknowledges that the agreements contained in this Section 7.3 are an integral part existence 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 right to receive payment pursuant to this Section 7.39.3 shall not constitute an election of remedies or in any way limit or impair a party’s right to pursue any other remedy against the other party to which it may be entitled under this Agreement, the Company shall also promptly pay upon Parent’s requestat law or in equity, all reasonably documented out-of-pocket fees and expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby (not exceeding $500,000 in the aggregate), which payments shall be in addition to the Termination Fee. The fee arrangement contemplated hereby shall be paid pursuant to this Section 7.3 regardless of any alleged breach by Parent of its obligations hereunderor otherwise; provided, that no payment made however, the successful exercise by Buyer of the right under Section 9.3(a) shall constitute an election of remedies and shall preclude Buyer from any other remedy against the Company pursuant to which Buyer may otherwise be entitled under this Section 7.3 shall operate Agreement, at law or be construed as a waiver by the Company of any breach of this Agreement by Parent in equity or Merger Sub or of any rights of the Company in respect thereof or as a waiver by Parent or Merger Sub of any breach of this Agreement by the Company or of any rights of Parent or Merger Sub in respect thereof; and provided, further, that the Termination Fee, if paid, shall be credited against any damages recovered by Parent or Merger Sub from the Company arising from such breachotherwise.
Appears in 1 contract
Samples: Merger Agreement (Stellent Inc)