Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”. (b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a). (c) Company and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 7.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) reasonably incurred in connection with such suit. (d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) will have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) 11.2.1. In recognition of the efforts, expenses and other opportunities foregone by Buyer BMBC while structuring and pursuing the Merger, Company RBPI shall pay to Buyer BMBC a termination fee equal to $10.0 million 5,000,000 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer BMBC in the event of any of the following: (ia) in the event Buyer BMBC terminates this Agreement pursuant to Section 7.01(g)11.1.7 or RBPI terminates pursuant to Section 11.1.8, Company RBPI shall pay Buyer BMBC the Termination Fee within two (2) Business Days after receipt of BuyerBMBC’s notification of such termination; and or (iib) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management the Board of Company Directors of RBPI or has been made directly to its RBPI shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Ai) thereafter this Agreement is terminated by either Buyer BMBC or Company RBPI pursuant to Section 7.01(c) 11.1.3 or Section 7.01(f) 11.1.6 (without the Requisite Company RBPI Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer BMBC pursuant to Section 7.01(d) 11.1.4 or Section 7.01(e)11.1.5, and (Bii) prior to the date that is twelve (12) months after the date of such termination, Company RBPI enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company RBPI shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer BMBC the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) 11.2.2. The parties hereto agree and acknowledge that if Buyer BMBC terminates this Agreement pursuant to Section 7.01(d) 11.1.4 or Section 7.01(e) 11.1.5 by reason of CompanyRBPI’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) 11.1.4 or Section 7.01(e) 11.1.5 that is not timely cured as provided in such sections, the actual damages sustained by BuyerBMBC, including the expenses incurred by Buyer BMBC preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer BMBC being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company RBPI shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 1,800,000 (the “Liquidated Damages PaymentAmount”), as liquidated damages to BuyerBMBC, which payment is not intended as a penalty, within two (2) Business Days after BuyerBMBC’s notification of such termination. Any payment made under this Section 7.02(b) 11.2.2 shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a)11.2.1.
11.2.3. The parties hereto agree and acknowledge that if RBPI terminates this Agreement pursuant to Section 11.1.4 or Section 11.1.5 by reason of BMBC’s breach of the provisions of this Agreement contemplated by Section 11.1.4 or Section 11.1.5 that is not timely cured as provided in such sections, the actual damages sustained by RBPI, including the expenses incurred by RBPI preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of RBPI being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that BMBC shall pay the Liquidated Damages Amount, as liquidated damages to RBPI, which payment is not intended as a penalty, within two (c2) Company Business Days after RBPI’s notification of such termination.
11.2.4. RBPI and Buyer BMBC each agree that the agreements contained in this Section 7.02 11.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.0211.2, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) 11.2.5. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company RBPI pays or causes to be paid to Buyer or to Buyer Bank BMBC the Termination Fee in accordance with Section 7.02(a)11.2.1, or, if applicable, the Liquidated Damages Payment Amount in accordance with Section 7.02(b)11.2.2, or if BMBC pays or causes to be paid to RBPI the Liquidated Damages Amount in accordance with Section 11.2.3, neither Company paying party nor Company Bank its subsidiary bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company such paying party or Company Bankits subsidiary bank) will have any further obligations or liabilities to Buyer the other party or Buyer Bank its subsidiary bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyerthe receiving party’s sole and exclusive remedy against Companythe other party, Company Bank its subsidiary bank, and their respective Affiliates, Representatives representatives or successors in interest; provided that nothing contained in this Agreement shall limit either party’s rights to recover any liabilities or damages arising out of the other party’s intentional misrepresentation or willful breach of any provision of this Agreement. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) 11.2.1 shall not be required to be paid more than once.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 million 1,800,000 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”. In recognition of the efforts, expenses and other opportunities foregone by Company while structuring and pursuing the Merger, Buyer shall pay to Company an amount equal to the Termination Fee, by wire transfer of immediately available funds to an account specified by Company in the event of any of the following: (i) in the event Company terminates this Agreement pursuant to Section 7.01(h), Buyer shall pay Company the Termination Fee within two (2) Business Days after receipt of Company’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, (A) there is a publicly announced inquiry, offer or proposal from any Person to acquire, via merger, tender offer, exchange offer, asset purchase, stock purchase or any transaction which is similar in form, substance or purpose to any of the foregoing, 20% or more of any class of equity of Buyer or Buyer Bank or 20% or more of the consolidated assets of Buyer or Buyer Bank, and (B) Buyer subsequently terminates this Agreement pursuant to Section 7.01(c) due to Buyer’s failure to obtain Requisite Buyer Shareholder Approval, Buyer shall pay Company the Termination Fee within two (2) Business Days after notification by Buyer to Company of such termination.
(b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 750,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(c) The parties hereto agree and acknowledge that if Company terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Buyer’s or Buyer Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, the actual damages sustained by Company, including the expenses incurred by Company preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Company being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Buyer shall pay a reasonable estimate of the amount of such damages, which the parties agree is the Liquidated Damages Payment, as liquidated damages to Company, which payment is not intended as a penalty, within two (2) Business Days after Company’s notification of such termination. Any payment made under this Section 7.02(c) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(d) Company and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company a party pays or causes to be paid to Buyer the other party or to Buyer Bank its subsidiary bank the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section Sections 7.02(b) or 7.02(c), neither Company paying party nor Company Bank its subsidiary bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company such paying party or Company Bankits subsidiary bank) will have any further obligations or liabilities to Buyer the other party or Buyer Bank its subsidiary bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyerthe receiving party’s sole and exclusive remedy against Companythe other party, Company Bank its subsidiary bank, and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer Parent while structuring and pursuing the Merger, Company shall pay to Buyer Parent a termination fee equal to $10.0 million 9,500,000 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer Parent in the event of any of the following: (i) in the event Buyer Parent terminates this Agreement pursuant to Section 7.01(g7.01(h) or Company terminates pursuant to Section 7.01(i), Company shall pay Buyer Parent the Termination Fee within two (2) Business Days after receipt of BuyerParent’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of the Company Board or has been made directly to its Company shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Aa) thereafter this Agreement is terminated by either Buyer Parent or Company pursuant to Section 7.01(c7.01(d) or Section 7.01(f7.01(g) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer Parent pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i), and (Bb) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer Parent the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that if Buyer Parent terminates this Agreement pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) that is not timely cured as provided in such sections, the actual damages sustained by BuyerParent, including the expenses incurred by Buyer Parent preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer Parent being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 2,000,000 (the “Liquidated Damages Payment”), as liquidated damages to BuyerParent, which payment is not intended as a penalty, within two (2) Business Days after BuyerParent’s notification of such termination. Any payment made under this Section 7.02(b7.01(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a7.01(a).
(c) The parties hereto agree and acknowledge that if Company terminates this Agreement pursuant to Section 7.01(e)(ii) or Section 7.01(f)(ii) by reason of Parent’s or Parent Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(e)(ii) or Section 7.01(f)(ii) that is not timely cured as provided in such sections, the actual damages sustained by Company, including the expenses incurred by Company preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Company being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Parent shall pay $2,000,000, which the parties agree is the Liquidated Damages Payment, as liquidated damages to Company, which payment is not intended as a penalty, within two (2) Business Days after Company’s notification of such termination.
(d) Company and Buyer Parent each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to Buyer or to Buyer Bank Parent the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither none of Company, Company nor Company Bank (nor Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) , will have any further obligations or liabilities to Buyer Parent or Buyer Parent Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be BuyerParent’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Parent pays or causes to be paid to Company the Liquidated Damages Payment in accordance with Section 7.02(c), none of Parent, Parent Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Parent or Parent Bank, will have any further obligations or liabilities to Company with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Company’s sole and exclusive remedy against Parent, Parent Bank and their respective Affiliates, representatives or successors in interest.
Appears in 1 contract
Samples: Merger Agreement (Enterprise Financial Services Corp)
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 23.9 million (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders stockholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated (x) by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without because the Requisite Company Shareholder Stockholder Approval having shall not have been obtainedobtained or (y) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), ) and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates a transaction with respect to an Acquisition Transaction Proposal (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction Proposal to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that if Buyer a party terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company Bankthe other party’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, the actual damages sustained by Buyerthe terminating party, including the expenses incurred by Buyer the terminating party preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer the terminating party being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company the non-terminating party shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 2,000,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyerthe terminating party, which payment is not intended as a penalty, within two (2) Business Days after Buyerthe terminating party’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(c) Company and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 7.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative interest of Company or Company BankCompany) will not have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than onceAgreement.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer West Town while structuring and pursuing the Merger, Company Sound Bank shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), West Town by wire transfer of immediately available funds a termination fee equal to an account specified by Buyer $750,000 (the “Termination Fee”), in the event of any of the following: (i) in the event Buyer West Town terminates this Agreement pursuant to Section 7.01(g7.01(g)(iii), Company which payment shall pay Buyer the Termination Fee be made within two (2) Business Days after receipt of BuyerWest Town’s notification of such termination; and , (ii) in the event that after West Town terminates this Agreement pursuant to Section 7.01(g)(i), (ii) or (iv) and if between the date of this the Original Agreement and prior to the date West Town’s notice of termination of this Agreement, is given an Acquisition Proposal shall have been was communicated or otherwise made known to the senior management or board of Company or has been made directly to its shareholders generally (directors of Sound Bank and not withdrawn) or at any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal time before the 12-month anniversary of the date such notice is given Sound Bank enters into a definitive written agreement with respect to Company and or consummates an Alternative Transaction, which payment shall be made within two (A2) thereafter Business Days after Sound Bank's entry into such definitive written agreement or consummation of the Alternative Transaction, whichever occurs first, or (iii) Sound Bank terminates this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e7.01(k), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier with payment of the date it enters into such agreement and the date Termination Fee being made concurrent with delivery of consummation Sound Bank’s notice of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”termination.
(b) The parties hereto agree and acknowledge that if Buyer either party terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company Bankthe other party’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sectionssections or capable of being cured prior to the Termination Date, the actual damages sustained by Buyerthe party terminating the agreement, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its the obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer the party terminating the agreement being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that, in addition to any Termination Fee that Company may be due to West Town under Section 7.02(a), the party in breach of Section 7.01(d) or Section 7.01(e) shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 250,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyerthe non-breaching party, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b; provided, for the avoidance of doubt, that in no event (i) shall reduce on a dollar-for-dollar basis any payment that may Sound Bank be due under Section 7.02(a)obligated to pay the Liquidated Damages Payment to both West Town and WTBT nor (ii) shall West Town and West Town Bank be obligated to both pay the Liquidated Damages Payment to Sound Bank.
(c) Company Sound Bank and Buyer West Town each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither of them would not enter into this Agreement; accordingly, if Company Sound Bank or West Town fails promptly to pay any amounts due from it under this Section 7.027.02 and, Company in order to obtain such payment, the other party commences a suit that results in a judgment for such amounts, the party obligated to make such payment shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 300 basis points, together with the costs and expenses of Buyer the other (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company this Agreement is terminated by West Town pursuant to Section 7.01(d), Section 7.01(e) or Section 7.01(g) or by Sound Bank pursuant to Section 7.01(k), and if Sound Bank pays or causes to be paid to Buyer or to Buyer Bank West Town, as applicable, the Termination Fee in accordance with Section 7.02(a), or, if applicable, ) and/or the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Sound Bank (nor or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative interest of Company or Company Sound Bank) will not have any further obligations or liabilities to Buyer West Town or Buyer WTBT with respect to this Agreement or the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if this Agreement is terminated by Sound Bank pursuant to Section 7.01(d) or Section 7.01(e), and if West Town and WTBT pay or cause to be paid to Sound Bank the Liquidated Damages Payment in accordance with Section 7.02(b), West Town and WTBT (or any successor to either) will not have any further obligations or liabilities to Sound Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than onceAgreement.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) 11.2.1. In recognition of the efforts, expenses and other opportunities foregone by Buyer BMBC while structuring and pursuing the Merger, Company RBPI shall pay to Buyer BMBC a termination fee equal to $10.0 million 5,000,000 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer BMBC in the event of any of the following: (ia) in the event Buyer BMBC terminates this Agreement pursuant to Section 7.01(g)11.1.7 or RBPI terminates pursuant to Section 11.1.8, Company RBPI shall pay Buyer BMBC the Termination Fee within two (2) Business Days after receipt of BuyerBMBC’s notification of such termination; and or (iib) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management the Board of Company Directors of RBPI or has been made directly to its RBPI shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Ai) thereafter this Agreement is terminated by either Buyer BMBC or Company RBPI pursuant to Section 7.01(c) 11.1.3 or Section 7.01(f) 11.1.6 (without the Requisite Company RBPI Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer BMBC pursuant to Section 7.01(d) 11.1.4 or Section 7.01(e)11.1.5, and (Bii) prior to the date that is twelve (12) months after the date of such termination, Company RBPI enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company RBPI shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer BMBC the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) 11.2.2. The parties hereto agree and acknowledge that if Buyer BMBC terminates this Agreement pursuant to Section 7.01(d) 11.1.4 or Section 7.01(e) 11.1.5 by reason of CompanyRBPI’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) 11.1.4 or Section 7.01(e) 11.1.5 that is not timely cured as provided in such sections, the actual damages sustained by BuyerBMBC, including the expenses incurred by Buyer BMBC preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer BMBC being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company RBPI shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 1,800,000 (the “Liquidated Damages PaymentAmount”), as liquidated damages to BuyerBMBC, which payment is not intended as a penalty, within two (2) Business Days after BuyerBMBC’s notification of such termination. Any payment made under this Section 7.02(b) 11.2.2 shall reduce on a dollar-for-dollar dollar‑for‑dollar basis any payment that may be due under Section 7.02(a)11.2.1.
11.2.3. The parties hereto agree and acknowledge that if RBPI terminates this Agreement pursuant to Section 11.1.4 or Section 11.1.5 by reason of BMBC’s breach of the provisions of this Agreement contemplated by Section 11.1.4 or Section 11.1.5 that is not timely cured as provided in such sections, the actual damages sustained by RBPI, including the expenses incurred by RBPI preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of RBPI being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that BMBC shall pay the Liquidated Damages Amount, as liquidated damages to RBPI, which payment is not intended as a penalty, within two (c2) Company Business Days after RBPI’s notification of such termination.
11.2.4. RBPI and Buyer BMBC each agree that the agreements contained in this Section 7.02 11.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.0211.2, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) 11.2.5. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company RBPI pays or causes to be paid to Buyer or to Buyer Bank BMBC the Termination Fee in accordance with Section 7.02(a)11.2.1, or, if applicable, the Liquidated Damages Payment Amount in accordance with Section 7.02(b)11.2.2, or if BMBC pays or causes to be paid to RBPI the Liquidated Damages Amount in accordance with Section 11.2.3, neither Company paying party nor Company Bank its subsidiary bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company such paying party or Company Bankits subsidiary bank) will have any further obligations or liabilities to Buyer the other party or Buyer Bank its subsidiary bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyerthe receiving party’s sole and exclusive remedy against Companythe other party, Company Bank its subsidiary bank, and their respective Affiliates, Representatives representatives or successors in interest; provided that nothing contained in this Agreement shall limit either party’s rights to recover any liabilities or damages arising out of the other party’s intentional misrepresentation or willful breach of any provision of this Agreement. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) 11.2.1 shall not be required to be paid more than once.
Appears in 1 contract
Samples: Merger Agreement (Royal Bancshares of Pennsylvania Inc)
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section Section 7.01(g), Company shall pay Buyer the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section Section 7.01(c) or Section Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section Section 7.01(d) or Section Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section Section 7.01(d) or Section Section 7.01(e) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section Section 7.01(d) or Section Section 7.01(e) that is not timely cured as provided in such sections, the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section Section 7.02(a).
(c) Company and Buyer each agree that the agreements contained in this Section Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section Section 7.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee in accordance with Section Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section Section 7.02(b), neither Company nor Company Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) will have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section Section 7.02(a) shall not be required to be paid more than once.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the MergerStock Sale, Company shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g9.01(g), Company Seller shall pay to Buyer the Termination Fee a termination fee equal to Two Million Five Hundred Thousand Dollars ($2,500,000) by wire transfer of immediately available funds within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that (i) if Buyer terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e9.01(e) by reason of CompanySeller’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e9.01(e) that is not timely cured as provided in such sectionssection or (ii) if any party terminates this Agreement pursuant to Section 9.01(c) and any of the Parent Controlling Shareholders have breached or failed to perform any of their obligations under the Voting Agreements (and Buyer has elected not to pursue its remedy of specific performance provided therein), the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company the Seller shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 500,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any termination and/or claim for payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a9.02(b).
(c) Company The parties hereto agree and acknowledge that if Seller terminates this Agreement pursuant to Section 9.01(e) by reason of Buyer’s breach of the provisions of this Agreement contemplated by Section 9.01(e) that is not timely cured as provided in such section, the actual damages sustained by the Seller, including the expenses incurred by the Seller preparatory to entering into this Agreement and in connection with the performance of their obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Seller being required to pursue their damage claims in costly litigation proceedings in such event, the parties agree that Buyer shall pay the Liquidated Damages Payment, as liquidated damages to the Seller, which payment is not intended as a penalty, within two (2) Business Days after the Seller’s notification of termination.
(d) Seller and Buyer each agree that the agreements contained in this Section 7.02 9.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer and Seller would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.029.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the terminating party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company this Agreement is terminated by Buyer pursuant to Section 9.01(g), Section 9.01(e) or Section 9.01(c) and if Seller pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee termination fee in accordance with Section 7.02(a9.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b9.02(b), neither Company nor Company Bank Seller (nor or any successor successors in interest, Affiliate, shareholder, director, officer, employee, agent, consultant interest or representative permitted assigns of Company or Company BankSeller) will not have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and Agreement.
(f) Notwithstanding anything to the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors contrary set forth in interest. For the avoidance of doubtthis Agreement, the parties agree that the fee payable under if this Agreement is terminated by Seller pursuant to Section 7.02(a9.01(e) shall not be required and if Buyer pays or causes to be paid more than onceto Seller the Liquidated Damages Payment in accordance with Section 9.02(b), Buyer (or any successors in interest or assigns of Buyer) will not have any further obligations or liabilities to Seller with respect to this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bear State Financial, Inc.)
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay to Buyer the Termination Fee a termination fee equal to $7.9 million, by wire transfer of immediately available funds within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, or if Buyer terminates this Agreement pursuant to Section 7.01(h), the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 1,750,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(c) Company and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 7.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if this Agreement is terminated by Buyer pursuant to Section 7.01(d), Section 7.01(e), Section 7.01(g) or Section 7.01(h) and if Company pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee termination fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative interest of Company or Company BankCompany) will not have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than onceAgreement.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company FNB shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), by wire transfer of immediately available funds a termination fee equal to an account specified by Buyer in the event of any four percent (4%) of the following: Purchase Price (i) the “Termination Fee”), in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company in which case FNB shall pay Buyer the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company BankFNB’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sectionssections or capable of being cured prior to the Closing, the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company FNB shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of Five Hundred Thousand Dollars ($1,000,000 500,000) (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(c) Company FNB and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company FNB fails promptly to pay any amounts due under this Section 7.027.02 and, Company in order to obtain such payment, Buyer commences a suit that results in a judgment against FNB for such amounts, FNB shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company this Agreement is terminated by Buyer pursuant to Section 7.01(d), Section 7.01(e) or Section 7.01(g), and if FNB pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee in accordance with Section 7.02(a), ) or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Bank FNB (nor or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative interest of Company or Company BankFNB) will not have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than onceAgreement.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 million 5,000,000.00 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g7.01(h) or Company terminates pursuant to Section 7.01(i), Company shall pay Buyer the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of the Company Board or has been made directly to its Company shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c7.01(d) or Section 7.01(f7.01(g) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d7.01(e) or Section 7.01(e7.01(f), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) [Reserved.]
(c) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d7.01(e) or Section 7.01(e7.01(f) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d7.01(e) or Section 7.01(e7.01(f) that is not timely cured as provided in such sections, the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 2,000,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b7.01(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a7.01(a).
(cd) The parties hereto agree and acknowledge that if Company terminates this Agreement pursuant to Section 7.01(e) or Section 7.01(f) by reason of Buyer’s or Buyer Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(e) or Section 7.01(f) that is not timely cured as provided in such sections, the actual damages sustained by Company, including the expenses incurred by Company preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Company being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Buyer shall pay $2,000,000, which the parties agree is the Liquidated Damages Payment, as liquidated damages to Company, which payment is not intended as a penalty, within two (2) Business Days after Company’s notification of such termination.
(e) Company and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(df) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to the Buyer or to Buyer Bank the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b7.02(c) or Section 7.02(d), neither Company paying party nor Company Bank its subsidiary bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company such paying party or Company Bankits subsidiary bank) will have any further obligations or liabilities to Buyer the other party or Buyer Bank its subsidiary bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyerthe receiving party’s sole and exclusive remedy against Companythe other party, Company Bank its subsidiary bank, and their respective Affiliates, Representatives representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once.
Appears in 1 contract
Samples: Merger Agreement (Enterprise Financial Services Corp)
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer Enterprise while structuring and pursuing the Merger, Company Seacoast shall pay to Buyer Enterprise a termination fee equal to $10.0 million 7,000,000 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer Enterprise in the event of any of the following: (i) in the event Buyer Enterprise terminates this Agreement pursuant to Section 7.01(g7.01(h), Company Seacoast shall pay Buyer Enterprise the Termination Fee within two (2) Business Days after receipt of BuyerEnterprise’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company the Seacoast Board or has been made directly to its Seacoast shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Aa) thereafter this Agreement is terminated by either Buyer Enterprise or Company Seacoast pursuant to Section 7.01(c7.01(d) or Section 7.01(f7.01(g) (without the Requisite Company Seacoast Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer Enterprise pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i), and (Bb) prior to the date that is twelve (12) months after the date of such termination, Company Seacoast enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company Seacoast shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer Enterprise the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “twenty percent (20%)” shall instead refer to “fifty percent (50%)”.
(b) The parties hereto agree and acknowledge that if Buyer Enterprise terminates this Agreement pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) by reason of CompanySeacoast’s or Company Seacoast Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) that is not timely cured as provided in such sections, the actual damages sustained by BuyerEnterprise, including the expenses incurred by Buyer Enterprise preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer Enterprise being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company Seacoast shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 1,250,000 (the “Liquidated Damages Payment”), as liquidated damages to BuyerEnterprise, which payment is not intended as a penalty, within two (2) Business Days after BuyerEnterprise’s notification of such termination. Any payment made under this Section 7.02(b7.01(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a7.01(a).
(c) Company The parties hereto agree and Buyer acknowledge that if Seacoast terminates this Agreement pursuant to Section 7.01(e)(ii) or Section 7.01(f)(ii) by reason of Enterprise’s or EB&T’s material breach of the provisions of this Agreement contemplated by Section 7.01(e)(ii) or Section 7.01(f)(ii) that is not timely cured as provided in such sections, the actual damages sustained by Seacoast, including the expenses incurred by Seacoast preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Seacoast being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Enterprise shall pay $1,250,000, which the parties agree is the Liquidated Damages Payment, as liquidated damages to Seacoast, which payment is not intended as a penalty, within two (2) Business Days after Seacoast’s notification of such termination.
(d) Seacoast and Enterprise each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company Seacoast pays or causes to be paid to Buyer or to Buyer Bank Enterprise the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor none of Seacoast, Seacoast Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company Seacoast or Company Seacoast Bank) , will have any further obligations or liabilities to Buyer Enterprise or Buyer Bank EB&T with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be BuyerEnterprise’s sole and exclusive remedy against CompanySeacoast, Company Seacoast Bank and their respective Affiliates, Representatives representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Enterprise pays or causes to be paid to Seacoast the Liquidated Damages Payment in accordance with Section 7.02(c), none of Enterprise, EB&T, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Enterprise or EB&T, will have any further obligations or liabilities to Seacoast with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Seacoast’s sole and exclusive remedy against Enterprise, EB&T and their respective Affiliates, representatives or successors in interest.
Appears in 1 contract
Samples: Merger Agreement (Enterprise Financial Services Corp)
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer Enterprise while structuring and pursuing the Merger, Company First Choice shall pay to Buyer Enterprise a termination fee equal to $10.0 million 16,800,0001 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer Enterprise in the event of any of the following: (i) in the event Buyer Enterprise terminates this Agreement pursuant to Section 7.01(g7.01(h), Company First Choice shall pay Buyer Enterprise the Termination Fee within two (2) Business Days after receipt of BuyerEnterprise’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company the First Choice Board or has been made directly to its First Choice shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Aa) thereafter this Agreement is terminated by either Buyer Enterprise or Company First Choice pursuant to Section 7.01(c7.01(d) or Section 7.01(f7.01(g) (without the Requisite Company First Choice Shareholder Approval or the Requisite Enterprise Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer Enterprise pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i), and (Bb) prior to the date that is twelve (12) months after the date of such termination, Company First Choice enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company First Choice shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer Enterprise the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “twenty percent (20%)” shall instead refer to “fifty percent (50%)”.
(b) The parties hereto agree and acknowledge that if Buyer Enterprise terminates this Agreement pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) by reason of CompanyFirst Choice’s or Company First Choice Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) that is not timely cured as provided in such sections, the actual damages sustained by BuyerEnterprise, including the expenses incurred by Buyer Enterprise preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer Enterprise being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company First Choice shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 (the “Liquidated Damages Payment”)1,500,000, as liquidated damages to BuyerEnterprise, which payment is not intended as a penalty, within two (2) Business Days after BuyerEnterprise’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a). 1 Note to Draft: Amount to equal +/-4.25% of implied transaction value based on Enterprise’s closing price as of the Trading Day immediately preceding the signing date.
(c) Company The parties hereto agree and Buyer acknowledge that if First Choice terminates this Agreement pursuant to Section 7.01(e)(ii) or Section 7.01(f)(ii) by reason of Enterprise’s or EB&T’s material breach of the provisions of this Agreement contemplated by Section 7.01(e)(ii) or Section 7.01(f)(ii) that is not timely cured as provided in such sections, the actual damages sustained by First Choice, including the expenses incurred by First Choice preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of First Choice being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Enterprise shall pay a reasonable estimate of the amount of such damages, which the parties agree is $1,500,000, as liquidated damages to First Choice, which payment is not intended as a penalty, within two (2) Business Days after First Choice’s notification of such termination.
(d) First Choice and Enterprise each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company First Choice pays or causes to be paid to Buyer or to Buyer Bank Enterprise the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment liquidated damages payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor none of First Choice, First Choice Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company First Choice or Company First Choice Bank) , will have any further obligations or liabilities to Buyer Enterprise or Buyer Bank EB&T with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be BuyerEnterprise’s sole and exclusive remedy against CompanyFirst Choice, Company First Choice Bank and their respective Affiliates, Representatives representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Enterprise pays or causes to be paid to First Choice the liquidated damages payment in accordance with Section 7.02(c), none of Enterprise, EB&T, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Enterprise or EB&T, will have any further obligations or liabilities to First Choice with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be First Choice’s sole and exclusive remedy against Enterprise, EB&T and their respective Affiliates, representatives or successors in interest.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer Parent while structuring and pursuing the Merger, Company shall pay to Buyer Parent a termination fee equal to $10.0 million 9,500,000 (“"Termination Fee”"), by wire transfer of immediately available funds to an account specified by Buyer Parent in the event of any of the following: (i) in the event Buyer Parent terminates this Agreement pursuant to Section 7.01(g7.01(h) or Company terminates pursuant to Section 7.01(i), Company shall pay Buyer Parent the Termination Fee within two (2) Business Days after receipt of Buyer’s Parent's notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of the Company Board or has been made directly to its Company shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Aa) thereafter this Agreement is terminated by either Buyer Parent or Company pursuant to Section 7.01(c7.01(d) or Section 7.01(f7.01(g) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer Parent pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i), and (Bb) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer Parent the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “"20%” " shall instead refer to “"50%”".
(b) The parties hereto agree and acknowledge that if Buyer Parent terminates this Agreement pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) by reason of Company’s 's or Company Bank’s 's material breach of the provisions of this Agreement contemplated by Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) that is not timely cured as provided in such sections, the actual damages sustained by BuyerParent, including the expenses incurred by Buyer Parent preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer Parent being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 2,000,000 (the “"Liquidated Damages Payment”"), as liquidated damages to BuyerParent, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s Parent's notification of such termination. Any payment made under this Section 7.02(b7.01(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a7.01(a).
(c) The parties hereto agree and acknowledge that if Company terminates this Agreement pursuant to Section 7.01(e)(ii) or Section 7.01(f)(ii) by reason of Parent's or Parent Bank's material breach of the provisions of this Agreement contemplated by Section 7.01(e)(ii) or Section 7.01(f)(ii) that is not timely cured as provided in such sections, the actual damages sustained by Company, including the expenses incurred by Company preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Company being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Parent shall pay $2,000,000, which the parties agree is the Liquidated Damages Payment, as liquidated damages to Company, which payment is not intended as a penalty, within two (2) Business Days after Company's notification of such termination.
(d) Company and Buyer Parent each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to Buyer or to Buyer Bank Parent the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither none of Company, Company nor Company Bank (nor Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) , will have any further obligations or liabilities to Buyer Parent or Buyer Parent Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s Parent's sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Parent pays or causes to be paid to Company the Liquidated Damages Payment in accordance with Section 7.02(c), none of Parent, Parent Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Parent or Parent Bank, will have any further obligations or liabilities to Company with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Company's sole and exclusive remedy against Parent, Parent Bank and their respective Affiliates, representatives or successors in interest.
Appears in 1 contract
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer Enterprise while structuring and pursuing the Merger, Company First Choice shall pay to Buyer Enterprise a termination fee equal to $10.0 million 16,800,000 (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer Enterprise in the event of any of the following: (i) in the event Buyer Enterprise terminates this Agreement pursuant to Section 7.01(g7.01(h), Company First Choice shall pay Buyer Enterprise the Termination Fee within two (2) Business Days after receipt of BuyerEnterprise’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company the First Choice Board or has been made directly to its First Choice shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (Aa) thereafter this Agreement is terminated by either Buyer Enterprise or Company First Choice pursuant to Section 7.01(c7.01(d) or Section 7.01(f7.01(g) (without the Requisite Company First Choice Shareholder Approval or the Requisite Enterprise Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer Enterprise pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i), and (Bb) prior to the date that is twelve (12) months after the date of such termination, Company First Choice enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the and such Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company First Choice shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer Enterprise the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii7.02(a), all references in the definition of Acquisition Transaction to “twenty percent (20%)” shall instead refer to “fifty percent (50%)”.
(b) The parties hereto agree and acknowledge that if Buyer Enterprise terminates this Agreement pursuant to Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) by reason of CompanyFirst Choice’s or Company First Choice Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d7.01(e)(i) or Section 7.01(e7.01(f)(i) that is not timely cured as provided in such sections, the actual damages sustained by BuyerEnterprise, including the expenses incurred by Buyer Enterprise preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer Enterprise being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company First Choice shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 (the “Liquidated Damages Payment”)1,500,000, as liquidated damages to BuyerEnterprise, which payment is not intended as a penalty, within two (2) Business Days after BuyerEnterprise’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(c) Company The parties hereto agree and Buyer acknowledge that if First Choice terminates this Agreement pursuant to Section 7.01(e)(ii) or Section 7.01(f)(ii) by reason of Enterprise’s or EB&T’s material breach of the provisions of this Agreement contemplated by Section 7.01(e)(ii) or Section 7.01(f)(ii) that is not timely cured as provided in such sections, the actual damages sustained by First Choice, including the expenses incurred by First Choice preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of First Choice being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Enterprise shall pay a reasonable estimate of the amount of such damages, which the parties agree is $1,500,000, as liquidated damages to First Choice, which payment is not intended as a penalty, within two (2) Business Days after First Choice’s notification of such termination.
(d) First Choice and Enterprise each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer neither party would not enter into this Agreement; accordingly, if Company a party fails promptly to pay any amounts due under this Section 7.02, Company such party shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer the other party (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(de) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company First Choice pays or causes to be paid to Buyer or to Buyer Bank Enterprise the Termination Fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment liquidated damages payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor none of First Choice, First Choice Bank, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company First Choice or Company First Choice Bank) , will have any further obligations or liabilities to Buyer Enterprise or Buyer Bank EB&T with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be BuyerEnterprise’s sole and exclusive remedy against CompanyFirst Choice, Company First Choice Bank and their respective Affiliates, Representatives representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than once. Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Enterprise pays or causes to be paid to First Choice the liquidated damages payment in accordance with Section 7.02(c), none of Enterprise, EB&T, or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Enterprise or EB&T, will have any further obligations or liabilities to First Choice with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be First Choice’s sole and exclusive remedy against Enterprise, EB&T and their respective Affiliates, representatives or successors in interest.
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Samples: Merger Agreement (Enterprise Financial Services Corp)
Termination Fee; Liquidated Damages. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a termination fee equal to $10.0 million (“Termination Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay to Buyer the Termination Fee a termination fee equal to $2,264,500 by wire transfer of immediately available funds within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(d) or Section 7.01(e), and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates an Acquisition Transaction (whether or not the Acquisition Transaction relates to the same Acquisition Proposal as that referred to above), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Termination Fee, provided, that for purposes of this Section 7.02(a)(ii), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%”.
(b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d) or Section 7.01(e) by reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, or if Buyer terminates this Agreement pursuant to Section 7.01(h), the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the amount of such damages, which the parties agree is the sum of $1,000,000 500,000 (the “Liquidated Damages Payment”), as liquidated damages to Buyer, which payment is not intended as a penalty, within two (2) Business Days after Buyer’s notification of such termination. Any payment made under this Section 7.02(b) shall reduce on a dollar-for-dollar basis any payment that may be due under Section 7.02(a).
(c) Company and Buyer each agree that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 7.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) reasonably incurred in connection with such suit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if this Agreement is terminated by Buyer pursuant to Section 7.01(d), Section 7.01(e), Section 7.01(g) or Section 7.01(h) and if Company pays or causes to be paid to Buyer or to Buyer Bank the Termination Fee termination fee in accordance with Section 7.02(a), or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), neither Company nor Company Bank (nor or any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative interest of Company or Company BankCompany) will not have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the payment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank and their respective Affiliates, Representatives or successors in interest. For the avoidance of doubt, the parties agree that the fee payable under Section 7.02(a) shall not be required to be paid more than onceAgreement.
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