Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement. (b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement. (c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h). (d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement). (e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement). (f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement). (g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement). (h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable. (i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee. (j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.), Share Purchase Agreement (Eurand N.V.)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the The Company shall pay or cause to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant be paid to Section 8.01(f), then the Company shall pay to Buyer Parent the Company Termination Fee by wire transfer if any of same-day funds within two business days the following the date of such termination of this Agreement.occur:
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g7.1(d) due (Superior Proposal);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(e) (Change in Recommendation); or
(iii) (A) either Parent or the Company terminates this Agreement pursuant to Section 7.1(f) (Company Stockholder Approval), (B) an Acquisition Proposal (provided that for purposes of this clause (iii), all references to “25%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) made by a Knowing and Material Breach Third Party that is reasonably capable of consummating such Acquisition Proposal has been publicly disclosed after the date of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than and prior to the conditions specified in clauses (ii) or (iii) date of such termination and has not been withdrawn prior to the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or ParentOutside Date, and (ivC) within twelve (12) months after such termination, the financing provided for by the Debt Financing Commitments Company and/or its Subsidiaries consummate any Acquisition Proposal.
(or any Alternative Financingb) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer Parent shall pay to the Company the Nonclearance Parent Termination Fee by wire transfer if any of same-day funds as promptly as reasonably practicable (and, in any event, within two business days the following the date of termination of this Agreement).occur:
(fi) If this Agreement is terminated by the Company pursuant to Section 8.01(g7.1(i) due or Section 7.1(j); or
(ii) this Agreement is terminated by Parent or Merger Sub pursuant to a Knowing Section 7.1(b) or 7.1(c) and Material Breach the Company would have been entitled to terminate this Agreement pursuant to Section 7.1(i) or Section 7.1(j) without regard to the expiration of the applicable cure period; or
(iii) this Agreement is terminated by Buyer Company, Parent or Merger Sub pursuant to Section 7.1(b) and the Parent shall not have obtained the Debt Financing necessary for consummation of the Merger or which is necessary to satisfy Parent’s condition to Closing in any circumstance where the Nonclearance Section 6.3(e).
(c) Any Termination Fee is not payable, then Buyer due under this Section 7.2 shall pay be paid to the Company the Buyer Termination Fee appropriate party by wire transfer of same-day funds as promptly as reasonably practicable on the second (and, in any event, within two business days 2nd) Business Day immediately following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer , except that any Company Termination Fee payable pursuant to Section 8.01(h7.1(d) due to a Knowing and Material Breach of this Agreement by the Company, then the Company Section 7.2(a)(i) shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of be paid concurrently with such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances it being understood that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion).
(d) The parties hereto acknowledge that (i) the agreements contained in this Section 7.2 are an integral part of the Transactions, and that without these agreements, the parties would not enter into this Agreement, and (ii) any Termination Fee, if, as and when required to be paid pursuant to this Section 7.2, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the aggrieved party in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. Accordingly, if the party obligated to pay a Termination Fee (the “Termination Fee Payor” ) fails to promptly pay the amounts due pursuant to this Section 7.2 and, in order to obtain such payment, the recipient party (the “Termination Fee Payee” ) commences a suit that results in a judgment against the Termination Fee Payor for any amounts due pursuant to this Section 7.2, the Termination Fee Payor shall pay to the Termination Fee Payee its and its affiliates’ out-of-pocket, documented costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee, cost or expense was required to be paid to (but excluding) the payment date (collectively, “Termination Fee Collection Costs”); or (2) Buyer provided that in no event shall Payor be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination FeeCollection Costs in an aggregate amount exceeding $250,000.
(je) Subject to Section 9.09 but notwithstanding Notwithstanding anything else to the contrary in this Agreement Agreement, if Parent or Merger Sub breaches or fails to perform hereunder (whether willfully (including a Willful and Material Breach), intentionally, unintentionally or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be then the sole and exclusive remedy of the Company, its Subsidiariesaffiliates and each of its and its affiliates’ respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers and employees, and their respective shareholdersassignees (collectively, directorsthe “Company Related Parties”), officerswhether at law, employeesin equity, advisors and representatives in contract, in tort or otherwise, against Buyerany of Parent, Parent and Merger Sub, any of their respective formeraffiliates, any of their and their affiliates’ respective direct or indirect current, former or future shareholders, controlling persons, managerspartners, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, managers and employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing and their respective assignees (togethercollectively, the “Buyer RepresentativesParent Related Parties”) for any loss breach, loss, Liability or damage in connection with this Agreement, any other agreements and instruments contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be the Company’s right (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Parent Termination Fee, if applicable, plus the Termination Fee Collection Costs, if any, and (iii) to seek recovery of damages incurred or suffered as a result of a Willful and Material Breach of, or Fraud with respect to, any breach of any representationParent’s representations, warrantywarranties, covenant covenants or agreement other agreements set forth in this Agreement where such Willful and Material Breach or Fraud is the failure principal cause of a condition contained in Section 6.1 or Section 6.2 to (x) be incapable of being satisfied by the Offer Outside Date or (y) if capable of being satisfied by the Outside Date, to be consummated, and upon payment of not have been satisfied by the Buyer Termination Fee or the Nonclearance Termination Fee, Outside Date. Except as applicable, by Buyer, none of Buyerexpressly contemplated hereby, Parent or will not (nor will any Buyer Representative shall other Parent Related Party) have any further other liability or obligation to the Company or any other Company Related Party relating to or arising out of this Agreement or any other agreement or instrument contemplated hereby, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. Notwithstanding anything to the transactions contemplated by contrary herein, (x) this Section 7.2(e) shall not relieve Parent from any Liability for any breaches of the Confidentiality Agreement and (y) it is agreed and understood that, notwithstanding anything herein to the contrary, the Company shall be entitled, under all circumstances, to pursue claims for both (1) specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as (2) monetary damages hereunder, but shall not be entitled to receive both an award of monetary damages, on the one hand, and specific performance or other injunctive or equitable relief, on the other hand.
(f) Notwithstanding anything to the contrary in this Agreement, if the Company breaches or fails to perform hereunder (whether willfully (including a Willful and Material Breach), intentionally, unintentionally or otherwise), then the sole and exclusive remedy of Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against any of the Company or the Company Related Parties for any breach, loss or damage in connection with this Agreement, any other agreements or instruments contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be Parent’s right (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) Buyer’s receipt to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Company Termination Fee, if applicable, plus the Termination Fee Collection Costs, if any, and (iii) to seek recovery of damages incurred or suffered as a result of a Willful and Material Breach of, or Fraud with respect to, any of the case may beCompany’s representations, pursuant warranties, covenants or other agreements set forth in this Agreement where such Willful and Material Breach or Fraud is the principal cause of a condition contained in Section 6.1 or Section 6.3 to (x) be incapable of being satisfied by the Outside Date or (y) if capable of being satisfied by the Outside Date, to not have been satisfied by the Outside Date. In the event that Company Termination Fee is paid to Parent in accordance with Section 8.03(a7.2(b), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be then the sole and exclusive remedy of Buyer Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, Company or the “Company Representatives”) Related Parties for any breach, loss suffered as a result or damage in connection with this Agreement, any other agreement or instrument contemplated hereby, or the Transactions (and the termination of any breach of any representation, warranty, covenant or agreement in this Agreement or any matter forming the failure basis for such termination) shall be as set forth in clause (ii) of the Offer to be consummatedimmediately preceding sentence. Except as expressly contemplated hereby, and upon payment of such amounts, none of the Company, its Subsidiaries or Company will not (nor will any other Company Representatives shall Related Party) have any further other liability or obligation to Parent or any other Parent Related Party relating to or arising out of this Agreement or any other agreement or instrument contemplated hereby, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. Notwithstanding anything to the transactions contemplated by contrary herein, (x) this AgreementSection 7.2(f) shall not relieve the Company from any Liability for any breaches of the Confidentiality Agreement and (y) it is agreed and understood that, notwithstanding anything herein to the contrary, Parent shall be entitled, under all circumstances, to pursue claims for both (1) specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as (2) any Company Termination Fee or monetary damages hereunder, but shall not be entitled to receive both an award of monetary damages or the Company Termination Fee on the one hand, and specific performance or other injunctive or equitable relief, on the other hand.
Appears in 2 contracts
Samples: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.)
Termination Fees and Expenses. 6.4.1 Medscape agrees to pay MedicaLogic (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee MedicaLogic is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any material breach of any representation, warranty, covenant or agreement contained in this Agreement or Agreement) within two business days after the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out termination of this Agreement or (or, in the transactions contemplated by this Agreement, and case of (ii) Buyer’s receipt and (iii) below, as provided therein) by wire transfer, the sum of $30,000,000 in immediately available funds in the event that any of the Company Termination Fee, as the case may be, following shall have occurred:
(i) this Agreement shall have been terminated pursuant to Section 8.03(a6.2(c), Section 8.03(b6.2(d), Section 8.03(c6.2(e), Section 6.2(f) or Section 8.03(g6.2(g) shall be the sole and exclusive remedy or because of Buyer and Parent against the Companya breach of Section 4.2.2 by Medscape, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”provided that if this Agreement is terminated pursuant to Section 6.2(g) for any loss suffered as a result of any a non-intentional breach by Medscape, Medscape shall pay to MedicaLogic MedicaLogic's actual out-of-pocket expenses rather than the aforesaid $30,000,000 sum;
(ii) prior to the meeting of any representation, warranty, covenant or agreement Medscape stockholders duly convened and held to vote in respect to this Agreement and the Merger, an Acquisition Transaction shall have been made to Medscape and made known to its stockholders generally or the failure of the Offer shall have been made directly to be consummatedits stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Transaction, and upon payment thereafter this Agreement shall have been terminated pursuant to Section 6.2(b)(2) (in which circumstances the amounts payable under this Section 6.4.1 shall be payable on the first business day after the date of such amounts, none of the Company, its Subsidiaries or any Company Representatives stockholder vote); or
(iii) this Agreement shall have been terminated pursuant to Section 6.2(b)(2) and, within twelve months of such termination Medscape enters into an agreement with any further liability person with respect to an Acquisition Transaction or obligation relating an Acquisition Transaction is consummated (in which circumstances the amounts payable under this Section 6.4.1 shall be payable upon the signing of such agreement or, if no agreement is signed, then at the closing (and as a condition to or arising out the closing, which condition may not be waived without the express written consent of this Agreement or the transactions contemplated by this Agreement.MedicaLogic) of such Acquisition Transaction;
Appears in 2 contracts
Samples: Reorganization and Merger Agreement (Medicalogic Inc), Agreement of Reorganization and Merger (Medscape Inc)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then because:
(i) the Company shall pay to Buyer a sum representations and warranties of US$12,500,000 (the “Company Termination Fee”) by wire transfer Purchaser contained in Article III were not or are not accurate in all material respects as of same-day funds within two business days following the date hereof and as of the Closing Date as though restated on and as of such date (except in the case of any representation or warranty that by its terms is made as of a date specified therein, which shall be accurate in all material respects as of such date);
(ii) Purchaser shall have failed to perform and comply with, in all material respects, all agreements required by this Agreement to be performed or complied with by it prior to or at the Closing; or
(iii) Purchaser shall not have obtained the financing required to satisfy the condition set forth in Section 6.1(h); then Purchaser shall, following such termination of this Agreement, promptly, but in no event later than three business days following written notice thereof, pay Seller a termination fee in an amount of Two Million Dollars ($2,000,000).
(b) If this Agreement is terminated terminated:
(i) because the representations and warranties of Seller contained in Article II were not or are not accurate in all material respects as of the date hereof and as of the Closing Date as though restated on and as of such date (except in the case of any representation or warranty that by its terms is made as of a date specified therein, which shall be accurate in all material respects as of such date);
(ii) because Seller shall have failed to perform and comply with, in all material respects, all agreements required by this Agreement to be performed or complied with by it prior to or at the Closing; or
(iii) by Seller pursuant to Sections 7.1(b) (only upon a failure to satisfy the conditions under Section 6.2(f)), 7.1(c), or 7.1(f) (but only if the merger contemplated by the Company pursuant to Section 8.01(fMerger Agreement shall not have occurred); then Seller shall, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement, promptly, but in no event later than three business days following written notice thereof, together with reasonable supporting documentation, reimburse Purchaser the fees and expenses incurred by Purchaser in connection with its consideration of the transactions contemplated by this Agreement, up to a maximum aggregate amount of One Million Dollars ($1,000,000).
(c) If (iThe payment by Purchaser of the amount set forth in Section 7.2(a) after the date shall be Seller's exclusive remedy against Purchaser upon termination of this Agreement but prior to other than for a willful breach of this Agreement by Purchaser. The payment by Seller of the date of amount set forth in Section 7.2(b) shall be Purchaser's exclusive remedy against Seller upon termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination Agreement other than for a willful breach of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)Seller.
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements permitted under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy 7.1 for any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, reason other than as explicitly required by Section 8.03(aset forth above in Sections 7.2(a) through Section 8.03(h) aboveand 7.2(b), and in no event such termination shall (1) the Company be required without liability to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required any party to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwiseany affiliate, (i) the Company’s receipt of the Buyer Termination Fee shareholder, director, officer or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment representative of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementparty.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lady Luck Gaming Corp), Stock Purchase Agreement (Sodak Gaming Inc)
Termination Fees and Expenses. (a) If In addition to any other amounts which may be payable pursuant to any other paragraph of this Section 7.3, the Company shall, following the termination of this Agreement pursuant to Sections 7.1(e) or 7.1(h), promptly, but in no event later than one business day following written notice thereof, together with reasonable supporting documentation, reimburse Parent, in an aggregate amount of up to $8,000,000, for all out-of-pocket expenses and fees (including fees payable to all counsel, accountants, financial advisors, financial printers, experts and consultants), whether incurred prior to, concurrently with or after the execution of this Agreement, in connection with the Merger and the consummation of all transactions contemplated by this Agreement and the Stock Option Agreement (collectively, the "Expenses").
(b) In the event that this Agreement is terminated by Buyer Parent pursuant to Section 8.01(dSections 7.1(e) or 7.1(h), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) Parent by wire transfer of same-immediately available funds to an account designated by Parent on the next business day funds following such termination an amount equal to $38,000,000 (the "Termination Fee").
(c) If all of the following events have occurred:
(i) a Transaction Proposal is commenced, publicly disclosed, publicly proposed or otherwise communicated to the Company at any time on or after the date of this Agreement and prior to the termination hereof, and either (A) Parent or the Company terminates this Agreement pursuant to Sections 7.1(c) or 7.1(d) or (B) Parent terminates this Agreement pursuant to Section 7.1(f)(ii); and
(ii) thereafter, within two business days following 18 months of the date of such termination termination, the Company enters into a definitive agreement with respect to, or consummates, any Transaction Proposal (whether or not such Transaction Proposal was commenced, publicly disclosed, publicly proposed or otherwise communicated to the Company prior to such termination); then, the Company shall pay to Parent an amount equal to the Termination Fee and Expenses concurrently with the earlier of this Agreementthe execution of such definitive agreement or the consummation of such Transaction Proposal.
(bd) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days 7.1(i) following the date failure of such termination of this Agreement.
(cthe condition contained in Section 6.1(g) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds be satisfied on the date such transaction is consummated. Solely for purposes Closing Date (other than as a result of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated a breach by the Company of its representation and warranty contained in Section 3.22 or Buyer pursuant to Section 8.01(ethe covenants contained in Sections 5.4(c) or 5.16), then Buyer Parent shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (andimmediately available funds, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement account designated by the Company, then on the Company shall pay to Buyer next business day following notice of such termination, together with receipt of reasonable supporting documentation, the Company Termination Fee by wire transfer amount of same-day funds $8 million as promptly as reasonably practicable (and, in any event, within two business days following the date reimbursement of termination of this Agreement).
(h) If this Agreement is terminated expenses incurred by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply connection with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Exel LTD), Merger Agreement (Nac Re Corp)
Termination Fees and Expenses. Termination
(a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then mutual written consent duly authorized by the Company shall pay to Buyer a sum of US$12,500,000 (SmartStop Special Committee and the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.SST IV Special Committee;
(b) If this Agreement is terminated by either SmartStop (with the Company pursuant to Section 8.01(f), then prior approval of the Company shall pay to Buyer SmartStop Special Committee) or by SST IV (with the Company Termination Fee by wire transfer prior approval of same-day funds within two business days following the date of such termination of this Agreement.SST IV Special Committee):
(c) If (i) after if the date of Merger shall not have occurred on or before 11:59 p.m., California local time, on August 6, 2021 (the “Outside Date”); provided, that the right to terminate this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee 9.1(b)(i) shall not be payable available to any Party if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time failure of such termination Party (iin the case of SmartStop, including the failure of Merger Sub) to perform or comply in all material respects with the conditions specified in clauses (ii) obligations, covenants or (iii) agreements of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those such Party set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) this Agreement shall have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the primary cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal Merger to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer be consummated by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(iOutside Date;
(ii) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), if any Governmental Authority of competent jurisdiction shall have issued an order, decree or ruling enjoining Order permanently restraining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and such Order shall have become final and nonappealable; provided, that the right to terminate this Agreement under this Section 9.1(b)(ii) shall not be available to a Party if the issuance of such final, non-appealable Order was primarily due to the failure of such Party (iiin the case of SmartStop, including the failure of Merger Sub) Buyer’s receipt to perform or comply in all material respects with any of its obligations, covenants or agreements under this Agreement; or
(iii) if the Stockholder Approvals shall not have been obtained at the Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the approval of the Company Termination FeeMerger and the Charter Amendment was taken (unless such meeting has been adjourned or postponed, as in which case at the final adjournment or postponement thereof); provided, that the right to terminate this Agreement under this Section 9.1(b)(iii) shall not be available to a Party if the failure to receive the Stockholder Approvals was primarily due to the failure of a Party (in the case may beof SmartStop, pursuant including the failure of Merger Sub) to Section 8.03(a), Section 8.03(b), Section 8.03(c) perform or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and comply in all material respects with any of their respective formerits obligations, current, covenants or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any agreements under this Agreement;
(c) by SST IV (with the prior approval of the foregoing SST IV Special Committee):
(together, the “Company Representatives”i) for any loss suffered as if a result of any breach of any representation, warrantyrepresentation or warranty or failure to perform or comply with any obligation, covenant or agreement on the part of SmartStop or Merger Sub set forth in this Agreement has occurred, which breach, either individually or in the failure aggregate, would result in, if occurring or continuing to occur at the Closing, any of the Offer conditions set forth in Section 8.1 or Section 8.3 not to be consummatedsatisfied (a “SmartStop Terminating Breach”), which breach or failure to perform or comply cannot be cured, or, if capable of cure, has not been cured by the earlier of twenty (20) days following written notice thereof from SST IV to SmartStop and upon payment two (2) Business Days before the Outside Date; provided, however, that SST IV shall not have such right to terminate this Agreement if a SST IV Terminating Breach shall have occurred and be continuing at the time SST IV delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or
(ii) at any time before Stockholder Approvals are obtained, in order to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in accordance with the provisions of Section 7.3; provided, however, that SST IV shall have complied with Section 7.3 and shall have paid or shall concurrently pay to SmartStop in full the Termination Payment in accordance with Section 9.3(b);
(d) by SmartStop (with the prior approval of the SmartStop Special Committee):
(i) if a breach of any representation or warranty or failure to perform or comply with any obligation, covenant or agreement on the part of SST IV set forth in this Agreement has occurred, which breach, either individually or in the aggregate, would result in, if occurring or continuing to occur at the Closing, any of the conditions set forth in Section 8.1 or Section 8.2 not to be satisfied (a “SST IV Terminating Breach”), which breach or failure to perform or comply cannot be cured, or if capable of cure, has not been cured by the earlier of twenty (20) days following written notice thereof from SmartStop to SST IV and two (2) Business Days before the Outside Date; provided, however, that SmartStop shall not have such right to terminate this Agreement if a SmartStop Terminating Breach shall have occurred and be continuing at the time SmartStop delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(d)(i); or
(ii) if, at any time prior to the receipt of the Stockholder Approvals, (A) the SST IV Board has made an Adverse Recommendation Change, (B) a tender offer or exchange offer for any shares of SST IV Common Stock that constitutes an Acquisition Proposal (other than by SmartStop or any of its Affiliates) is commenced and the SST IV Board fails to recommend against acceptance of such amounts, none tender offer or exchange offer by the stockholders of SST IV and to publicly reaffirm the Company, its Subsidiaries SST IV Board Recommendation within ten (10) Business Days of being requested to do so by SmartStop or any Company Representatives (C) SST IV shall have breached or failed to comply in any further liability or obligation relating to or arising out material respect with any of this Agreement or the transactions contemplated by this Agreementits obligations under Section 7.3.
Appears in 2 contracts
Samples: Merger Agreement (SmartStop Self Storage REIT, Inc.), Merger Agreement (Strategic Storage Trust IV, Inc.)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the The Company shall pay or cause to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant be paid to Section 8.01(f), then the Company shall pay to Buyer Parent the Company Termination Fee by wire transfer if any of same-day funds within two business days the following the date of such termination of this Agreement.occur:
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g7.1(d) due (Superior Proposal);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(e) (Change in Recommendation); or
(iii) (A) either Parent or the Company terminates this Agreement pursuant to Section 7.1(f) (Company Stockholder Approval),(B) an Acquisition Proposal (provided that for purposes of this clause (iii), all references to “25%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) made by a Knowing and Material Breach Third Party that is reasonably capable of consummating such Acquisition Proposal has been publicly disclosed after the date of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than and prior to the conditions specified in clauses (ii) or (iii) date of such termination and has not been withdrawn prior to the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or ParentOutside Date, and (ivC) within twelve (12) months after such termination, the financing provided for by the Debt Financing Commitments Company and/or its Subsidiaries consummate any Acquisition Proposal.
(or any Alternative Financingb) in an amount no less than US$430,000,000 has been funded, will Any Company Termination Fee due under this Section 7.2 shall be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay paid to the Company the Nonclearance Termination Fee appropriate party by wire transfer of same-day funds as promptly as reasonably practicable on the second (and, in any event, within two business days 2nd) Business Day immediately following the date of termination of this Agreement).
(f) If this Agreement is terminated by the , except that any Company Termination Fee payable pursuant to Section 8.01(g7.1(d) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer Section 7.2(a)(i) shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of be paid concurrently with such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances it being understood that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion).
(c) The parties hereto acknowledge that (i) the agreements contained in this Section 7.2 are an integral part of the Transactions, and that without these agreements, the parties would not enter into this Agreement, and (ii) the Company Termination Fee, if, as and when required to be paid pursuant to this Section 7.2, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the Parent in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. Accordingly, if the Company fails to promptly pay the amounts due pursuant to this Section 7.2 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amounts due pursuant to this Section 7.2, the Company shall pay to Parent its and its affiliates’ out-of-pocket, documented costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee, cost or expense was required to be paid to (but excluding) the payment date (collectively, “Termination Fee Collection Costs”); or (2) Buyer provided that in no event shall the Company be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination FeeCollection Costs in an aggregate amount exceeding $2,000,000.
(jd) Subject to Section 9.09 but notwithstanding Notwithstanding anything else to the contrary in this Agreement Agreement, if Parent or Merger Sub breaches or fails to perform hereunder (whether willfully (including a Willful and Material Breach), intentionally, unintentionally or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be then the sole and exclusive remedy of the Company, its Subsidiariesaffiliates and each of its and its affiliates’ respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers and employees, and their respective shareholdersassignees (collectively, directorsthe “Company Related Parties”), officerswhether at law, employeesin equity, advisors and representatives in contract, in tort or otherwise, against Buyerany of Parent, Parent and Merger Sub, any of their respective formeraffiliates, any of their and their affiliates’ respective direct or indirect current, former or future shareholders, controlling persons, managerspartners, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, managers and employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing and their respective assignees (togethercollectively, the “Buyer RepresentativesParent Related Parties”) for any loss breach, loss, Liability or damage in connection with this Agreement, any other agreements and instruments contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be the Company’s right (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) to terminate this Agreement in accordance with and subject to the terms of Section 7.1, and (iii) to seek recovery of damages incurred or suffered as a result of a Willful and Material Breach of, or Fraud with respect to, any breach of any representationParent’s representations, warrantywarranties, covenant covenants or agreement other agreements set forth in this Agreement where such Willful and Material Breach or Fraud is the failure principal cause of a condition contained in Section 6.1 or Section 6.2 to (x) be incapable of being satisfied by the Offer Outside Date or (y) if capable of being satisfied by the Outside Date, to be consummated, and upon payment of not have been satisfied by the Buyer Termination Fee or the Nonclearance Termination Fee, Outside Date. Except as applicable, by Buyer, none of Buyerexpressly contemplated hereby, Parent or will not (nor will any Buyer Representative shall other Parent Related Party) have any further other liability or obligation to the Company or any other Company Related Party relating to or arising out of this Agreement or any other agreement or instrument contemplated hereby, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. Notwithstanding anything to the transactions contemplated by contrary herein, (x) this Section 7.2(d) shall not relieve Parent from any Liability for any breaches of the Confidentiality Agreement and (y) it is agreed and understood that, notwithstanding anything herein to the contrary, the Company shall be entitled, under all circumstances, to pursue claims for both (1) specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as (2) monetary damages hereunder, but shall not be entitled to receive both an award of monetary damages, on the one hand, and specific performance or other injunctive or equitable relief, on the other hand.
(e) Notwithstanding anything to the contrary in this Agreement, if the Company breaches or fails to perform hereunder (whether willfully (including a Willful and Material Breach), intentionally, unintentionally or otherwise), then the sole and exclusive remedy of Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against any of the Company or the Company Related Parties for any breach, loss or damage in connection with this Agreement, any other agreements or instruments contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be Parent’s right (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) Buyer’s receipt to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Company Termination Fee, if applicable, plus the Termination Fee Collection Costs, if any, and (iii) to seek recovery of damages incurred or suffered as a result of a Willful and Material Breach of, or Fraud with respect to, any of the case may beCompany’s representations, pursuant warranties, covenants or other agreements set forth in this Agreement where such Willful and Material Breach or Fraud is the principal cause of a condition contained in Section 6.1 or Section 6.3 to (x) be incapable of being satisfied by the Outside Date or (y) if capable of being satisfied by the Outside Date, to not have been satisfied by the Outside Date. In the event that Company Termination Fee is paid to Parent in accordance with Section 8.03(a7.2(b), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be then the sole and exclusive remedy of Buyer Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, Company or the “Company Representatives”) Related Parties for any breach, loss suffered as a result or damage in connection with this Agreement, any other agreement or instrument contemplated hereby, or the Transactions (and the termination of any breach of any representation, warranty, covenant or agreement in this Agreement or any matter forming the failure basis for such termination) shall be as set forth in clause (ii) of the Offer to be consummatedimmediately preceding sentence. Except as expressly contemplated hereby, and upon payment of such amounts, none of the Company, its Subsidiaries or Company will not (nor will any other Company Representatives shall Related Party) have any further other liability or obligation to Parent or any other Parent Related Party relating to or arising out of this Agreement or any other agreement or instrument contemplated hereby, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. Notwithstanding anything to the transactions contemplated by contrary herein, (x) this AgreementSection 7.2(e) shall not relieve the Company from any Liability for any breaches of the Confidentiality Agreement and (y) it is agreed and understood that, notwithstanding anything herein to the contrary, Parent shall be entitled, under all circumstances, to pursue claims for both (1) specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as (2) any Company Termination Fee or monetary damages hereunder, but shall not be entitled to receive both an award of monetary damages or the Company Termination Fee on the one hand, and specific performance or other injunctive or equitable relief, on the other hand.
Appears in 2 contracts
Samples: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)
Termination Fees and Expenses. (a) If In the event that:
(i) this Agreement is terminated by Buyer pursuant to Section 8.01(d8.1(c)(i) or Section 8.1(d)(ii), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.;
(bii) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
8.1(b)(ii) and (cA) If (i) after the date of this Agreement but prior to the date of termination of this Agreementsuch termination, an Acquisition Proposal shall have become publicly known been made public or directly to its stockholders generally and not publicly withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or and (B) by Buyer pursuant to Section 8.01(hwithin twelve (12) and (iii) within 12 months after of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal Contract to consummate, and later does consummate, a Change in Control Transaction (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely provided that for purposes of this Section 8.03(cclause (B), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein “20%” and “80%” in the definition of Change in Control Transaction shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c”), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).;
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (iiii) this Agreement is terminated by Gannett pursuant to Section 8.1(c)(ii) and (A) prior to the date of such termination, an Acquisition Proposal shall have been made public or directly to its stockholders generally and not publicly withdrawn, (B) within twelve (12) months of such termination, the Company enters into a definitive Contract to consummate, and later does consummate, a Change in Control Transaction (provided that for purposes of this clause (B), the references to “20%” and “80%” in the definition of Change in Control Transaction shall be deemed references to “50%”), and (C) such termination pursuant to Section 8.1(c)(ii) arose out of or related to a breach, inaccuracy or failure to perform or comply after or simultaneous with when such Acquisition Proposal was first made to the Company (regardless of whether or not made publicly or directly to the stockholders, the Company or their respective Representatives); or
(iv) (A) prior to the date of the Stockholders’ Meeting, an Acquisition Proposal shall have been made public or directly to its stockholders generally and not publicly withdrawn, (B) this Agreement is terminated by Gannett or the Company pursuant to Section 8.01(g8.1(b)(i) due (prior to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than obtaining the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the ClosingStockholder Approval), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (ivC) within twelve (12) months of such termination, the financing Company enters into a definitive Contract to consummate, and later does consummate, a Change in Control Transaction (provided that for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 purposes of this Agreement by Buyer or Parentclause (B), then Buyer the references to “20%” and “80%” in the definition of Change in Control Transaction shall pay be deemed references to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement“50%”).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay Gannett an amount equal to Buyer Fifty One Million Five Hundred Thousand Dollars ($51,500,000) (the Company “Termination Fee”). Any Termination Fee due under this Section 8.3(a) shall be paid by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day immediately available funds to an account designated provided in writing by Gannett to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant by the Company as described in clause (i) above, concurrently with or prior to Section 8.01(c)(i)such termination, the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination by Gannett as described in clause (i) above, within five (5) Business Days after the termination by Gannett of this Agreement, or (C) in the case of termination as described in clauses (ii), (iii) or (iv) above, prior to or concurrently with the consummation of the Change in Control Transaction referred to therein.
(b) The payment of the Termination Fee shall be a precondition to the effectiveness of any termination of this Agreement by the Company pursuant to Section 8.01(c)(ii8.1(d)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(ic) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) If the Company be required fails to pay the Company Termination Fee on more than one occasion; or (2Gannett any amounts due under Section 8.3(a) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementin accordance with such Section, and (ii) Buyer’s receipt of the Company Termination Feeshall pay the reasonable costs and expenses (including reasonable legal fees and expenses) in connection with any Legal Proceeding, as including the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents filing of any of the foregoing (togetherlawsuit or other legal action, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer taken to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementcollect payment.
Appears in 2 contracts
Samples: Merger Agreement (Gannett Co Inc /De/), Merger Agreement (Belo Corp)
Termination Fees and Expenses. (a1) If Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement is terminated shall be paid by Buyer pursuant the Party incurring such cost or expense. The Purchaser or the Parent shall pay any filing or similar fee payable to Section 8.01(d)a Governmental Entity and applicable Taxes in connection with a Regulatory Approval.
(2) Despite any other provision in this Agreement relating to the payment of fees and expenses, then including the payment of brokerage fees, if a Termination Fee Event occurs, the Company shall pay to Buyer a sum the Purchaser the Termination Fee in accordance with Section 8.2(3) in consideration for the disposition by the Purchaser of US$12,500,000 (its rights under this Agreement. For the purposes of this Agreement, “Company Termination Fee”” means $8,166,377.57 and “Termination Fee Event” means the termination of this Agreement:
(a) by wire transfer the Purchaser, pursuant to Section 7.2(1)(d)(ii) [Change in Recommendation] or Section 7.2(1)(d)(iii) [Breach of sameNon-day funds Solicit];
(b) by the Company, pursuant to Section 7.2(1)(c)(ii) [To enter into a Superior Proposal]; or
(c) by the Company or the Purchaser pursuant to Section 7.2(1)(b)(i) [Failure of Shareholders to Approve], or Section 7.2(1)(b)(iii) [Outside Date] or Section 7.2(1)(d)(i) (due to a wilful breach or fraud) [Company Breach], if:
(i) following the date hereof and prior to the Company Meeting, a bona fide Acquisition Proposal with respect to the Company shall have been made or publicly announced by any Person (other than the Purchaser, the Parent or any of their affiliates or any Person acting jointly or in concert with any of the foregoing);
(ii) such Acquisition Proposal has not expired or been publicly withdrawn at least five (5) Business Days prior to the Company Meeting; and
(iii) within two business days 12 months following the date of such termination of this Agreement.
(bA) If this Agreement an Acquisition Proposal (whether or not such Acquisition Proposal is terminated by the Company pursuant same Acquisition Proposal referred to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If in clause (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (iiabove) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b)consummated, or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any contract in respect of an Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) whether or consummates any not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (regardless of when made), then, in i) above) and such Acquisition Proposal is later consummated at any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummatedtime. Solely for For purposes of this Section 8.03(c)the foregoing, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.011.1, except that all references to 25“20% therein or more” shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)% or more”.
(d3) If this Agreement is terminated by the Company or Buyer pursuant a Termination Fee Event occurs due to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g7.2(1)(c)(ii) [To enter into a Superior Proposal], the Termination Fee shall be paid prior to or concurrently with the occurrence of such Termination Fee Event. If a Termination Fee Event occurs due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the CompanyPurchaser pursuant to Section 7.2(1)(d)(ii) [Change in Recommendation] or Section 7.2(1)(d)(iii) [Breach of Non-Solicit], then the Termination Fee shall be paid within two (2) Business Days following such Termination Fee Event. If a Termination Fee Event occurs in the circumstances set out in Section 8.2(2)(c) [Acquisition Proposal Tail], the Termination Fee shall be paid upon the consummation of the Acquisition Proposal referred to therein. Any Termination Fee shall be paid (less any applicable withholding Tax) by the Company shall pay to Buyer the Company Termination Fee Purchaser (or as the Purchaser may direct by notice in writing), by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day immediately available funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i)Purchaser. For greater certainty, the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required obligated to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both . Payment of the Buyer Termination Fee by the Company shall be made free and clear of and without withholding or deduction for or on account of any Tax, unless the Nonclearance Termination Feewithholding or deduction of such Taxes is then required by applicable Law or the interpretation or administration thereof; provided, however, that the Company will notify the Purchaser of its intent to withhold prior to making any such withholding, and if requested by the Purchaser, the Parties shall cooperate to reduce or eliminate the amount so withheld, if possible, through the provision of any Tax forms, information, reports or certificates, including, among others, filing any documents with any relevant Governmental Entity.
(j4) Subject Each Party acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that without these agreements the Parties would not enter into this Agreement, and that the amounts set out in this Section 8.2 represent liquidated damages which are a genuine pre-estimate of the damages, including opportunity costs, reputational damages and expenses, which the affected Party or Parties will suffer or incur as a result of the event giving rise to Section 9.09 but notwithstanding such damages and resultant termination of this Agreement, and are not penalties. Each Party irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Notwithstanding anything else to the contrary set forth in this Agreement, but subject to Section 7.3 and the Purchaser’s and the Parent’s rights set forth in Section 8.5, in the event of the termination of this Agreement by the Purchaser or otherwisethe Company in circumstances that constitute a Termination Fee Event, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) by the Purchaser shall be the sole and exclusive remedy (including damages, specific performance and injunctive relief) of the Purchaser and the Parent and their respective affiliates against the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent affiliates and any of their respective former, current, current or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling personsshareholders, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates members or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach all breaches of any representation, warranty, covenant or agreement contained in this Agreement or by the Company and the failure of the Offer transactions contemplated herein to be consummated, and upon payment consummated (including with respect to any loss suffered as a result of the Buyer Termination Fee failure of the Arrangement to be consummated or for a breach or failure to perform hereunder). For the Nonclearance Termination Feeavoidance of doubt, it is agreed that the Company and the Purchaser shall be entitled to pursue an injunction, or other form of specific performance or equitable relief, solely as applicable, by Buyer, none provided in Section 8.5.
(5) The Parties acknowledge that the agreements contained in Section 8.2 are an integral part of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt that without these agreements the Parties would not enter into this Agreement; accordingly, if a lawsuit is commenced regarding the payment or non-payment of the Company Termination FeeFee that results in a non-appealable final judgment, as the case may beprevailing party shall recover from the non-prevailing party its costs and expenses (including attorneys’ fees) in connection with such suit, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) together with interest on the amount of such or Section 8.03(g) shall be portion thereof at the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any prime rate of the foregoing (together, the “Company Representatives”) for any loss suffered as a result Royal Bank of any breach of any representation, warranty, covenant or agreement Canada in this Agreement or the failure of the Offer effect on such date such payment was required to be consummated, and upon payment made through the date of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementpayment.
Appears in 2 contracts
Samples: Arrangement Agreement (Spire Global, Inc.), Arrangement Agreement (Spire Global, Inc.)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d)8.3.1. Purchaser shall reimburse Sellers for direct out-of-pocket expenses for counsel and accountants that the Sellers have incurred in connection with the preparation, then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f)negotiation, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date execution and delivery of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds transactions contemplated hereby, not to exceed $400,000, as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing Sellers’ sole and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied exclusive remedy upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) 8.1.2 in the case event that Closing does not occur due to failure to satisfy the conditions set forth in Section 7.3.7. Such payment shall be paid within 10 Business Days following such termination and upon the receipt by Purchaser of termination pursuant to Section 8.01(c)(i)an invoice from Sellers setting forth such expenses in reasonable detail, the legal prohibition is based on applicable Antitrust Laws and such prohibition accompanied by reasonable documentation.
8.3.2. Sellers shall have become final and nonappealable or (B) pay Purchaser a fee in the case amount of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent$2,000,000, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the CompanyPurchaser’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out termination of this Agreement or pursuant to Section 8.1.4. Such payment shall be paid within 10 Business Days following the date of such termination.
8.3.3. Purchaser shall pay Sellers (in the same allocation as the allocation of the Purchase Price) a fee in the amount of $2,000,000, as Sellers’ sole and exclusive remedy upon termination of this Agreement pursuant to Section 8.1.5. Such payment shall be paid within 10 Business Days following the date of such termination.
8.3.4. The parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, and (ii) Buyer’s receipt that if this Agreement is terminated as provided in the applicable sub-sections of Section 8.1, that the amounts payable pursuant to Sections 8.3.1 through 8.3.3 are reasonable forecasts of the Company Termination Feeactual damages which may be incurred by such party under such circumstances and constitute liquidated damages and not a penalty, as the case may beand further that, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (togetherwithout these agreements, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by parties would not enter into this Agreement.
8.3.5. All payments to be made under this Section 8.3 shall be paid in U.S. Dollars by wire transfer in immediately available funds to such bank accounts the details of which shall be provided by the relevant payee(s) to the relevant payor upon the time of payment.
Appears in 2 contracts
Samples: Purchase Agreement (Answers CORP), Purchase Agreement (Answers CORP)
Termination Fees and Expenses. (a) If The Company agrees that if this Agreement is terminated shall be terminated:
(i) by Buyer Parent pursuant to Section 8.01(d8.1(d)(ii) or Section 8.1(d)(iii), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.;
(bii) If this Agreement is terminated by the Company pursuant to Section 8.01(f8.1(c)(ii); or
(iii) by Parent or the Company pursuant to Section 8.1(b)(iii) (failure to obtain Company Stockholder Approval) or by Parent pursuant to Section 8.1(d)(i) (Company breach giving rise to termination), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) and at any time after the date of this Agreement but and prior to the date failure to obtain Company Stockholder Approval or prior to the breach giving rise to such termination, as applicable, (A) (x) in the case of a termination of this Agreementpursuant to Section 8.1(b)(iii), an Acquisition Proposal (whether or not conditional) shall have become been made to the Company Board, the Company Special Committee or directly to the Company’s stockholders which proposal has been publicly known announced to the Company’s stockholders and not publicly withdrawn prior to the Company Stockholder Meeting, or (y) in the case of a termination of this Agreementpursuant to Section 8.1(d)(i), an Acquisition Proposal (iiwhether or not conditional) thereafter, this Agreement is terminated (A) by Buyer shall have been made to the Company Board or the Company pursuant Special Committee or directly to Section 8.01(b)the Company’s stockholders which proposal has been publicly announced to the Company’s stockholders prior to the Termination Date, or and (B) by Buyer pursuant to Section 8.01(h) and (iii) concurrently with such termination or within 12 months after such terminationfollowing the Termination Date, the Company enters into a definitive agreement providing for any transaction contemplated by any consummates an Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) in each case whether or consummates any not such Acquisition Proposal was the same Acquisition Proposal referred to in the foregoing clause (regardless of when madeA), and for purposes of this Section 8.3(a)(iii), “50%” shall be substituted for “20%” in the definition of Acquisition Proposal); then, in any each such case, the Company shall pay to Buyer Parent the Company Termination Fee or, solely with respect to a termination by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d8.1(c)(ii) If this Agreement is terminated or by the Company or Buyer Parent pursuant to Section 8.01(e8.1(d)(ii) or Section 8.1(d)(iii), then Buyer shall pay to in each case in connection with the Company entering into or recommending a sum of US$30,000,000 Superior Proposal with a Go Shop Bidder on or before the date that is fifteen (a “Buyer Fee” and the “Buyer Termination Fee”15) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date Go Shop Period End Time, the Go Shop Termination Fee, as applicable, in immediately available funds to an account directed by Xxxxxx in writing, which payment shall be made (x) within three (3) Business Days of termination the Termination Date, in the case of this Agreementa Termination Fee or Go Shop Termination Fee, as applicable, payable pursuant to Section 8.3(a)(i).
; (ey) If concurrently with, and as a condition to the effectiveness of, termination, in the case of a Termination Fee or Go Shop Termination Fee, as applicable, payable pursuant to Section 8.3(a)(ii); and (iz) at the time of consummation of any transaction contemplated by an Acquisition Proposal, in the case of a Termination Fee payable pursuant to Section 8.3(a)(iii). In the event that this Agreement is shall be terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii8.1(c)(i) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the ClosingSection 8.1(c)(iii), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer Parent shall pay to the Company the Nonclearance Termination Fee by wire transfer within three (3) Business Days of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement)Termination Date.
(fb) If The Company agrees that if this Agreement is shall be terminated (i) by the Company pursuant to Section 8.01(g8.1(c)(ii), or (ii) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company8.1(d)(i), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii8.1(d)(ii), or by Buyer pursuant to Section 8.01(c)(i8.1(d)(iii), and at in each case in connection with the time of such termination (i) the conditions specified Company entering into or recommending a Superior Proposal, then, in clauses (ii) or (iii) addition to payment of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Go Shop Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, the Company shall pay, within three (3) Business Days of the Termination Date, to Parent the Parent’s Expenses in immediately available funds to an account directed by Xxxxxx, up to an aggregate maximum of $3,000,000.
(c) Parent agrees that if this Agreement shall be terminated by the Company pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c8.1(c)(i) or Section 8.03(g8.1(c)(iii), then Parent shall pay, within three (3) shall be Business Days of the sole and exclusive remedy of Buyer and Parent against Termination Date, to the Company the Company’s Expenses in immediately available funds to an account directed by the Company, its Subsidiaries and any up to an aggregate maximum of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing $3,000,000.
(together, the “Company Representatives”d) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out For purposes of this Agreement or the transactions contemplated by this Agreement.:
Appears in 2 contracts
Samples: Merger Agreement (Global Net Lease, Inc.), Merger Agreement (Necessity Retail REIT, Inc.)
Termination Fees and Expenses. (a1) If Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement is terminated shall be paid by Buyer pursuant the Party incurring such cost or expense. The Parent or the Purchaser shall pay any filing or similar fee payable to Section 8.01(d)a Governmental Entity and applicable Taxes in connection with a Regulatory Approval.
(2) Despite any other provision in this Agreement relating to the payment of fees and expenses, then including the payment of brokerage fees, if a Termination Fee Event occurs, the Company shall pay to Buyer a sum the Purchaser the Termination Fee in accordance with Section 8.2(3). For the purposes of US$12,500,000 (the this Agreement, “Company Termination Fee”) by wire transfer of same-day funds within two business days following ” means $21,500,000 and “Termination Fee Event” means the date of such termination of this Agreement.
: (a) by the Purchaser, pursuant to Section 7.2(1)(d)(ii) [Change in Recommendation]; (b) If pursuant to any subsection of Section 7.2, if at such time the Purchaser is entitled to terminate this Agreement is terminated pursuant to Section 7.2(1)(d)(ii) [Change in Recommendation]; (c) by the Company pursuant to Section 8.01(f), then 7.2(1)(c)(ii) [To enter into a Superior Proposal]; or (d) by the Company or the Purchaser pursuant to Section 7.2(1)(b)(i) [Failure of Company Shareholders to Approve] or Section 7.2(1)(b)(iv) [Outside Date] or by the Purchaser pursuant to Section 7.2(1)(d)(i) [Breach of Reps and Warranties or Covenants by Company] if: (i) prior to such termination, an Acquisition Proposal is publicly made directly to the Shareholders or publicly announced or otherwise publicly disclosed by any Person (other than the Purchaser or any of its affiliates) or any Person (other than the Purchaser or any of its affiliates) shall pay have publicly announced an intention to Buyer the Company Termination Fee by wire transfer of same-day funds make an Acquisition Proposal; and (ii) within two business days twelve months following the date of such termination of this Agreement.
termination, (cA) If an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (iiabove) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b)consummated, or (B) by Buyer pursuant the Company or one or more of its Subsidiaries, directly or indirectly, in one or more transactions, enters into a contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to Section 8.01(hin clause (i) above) and such Acquisition Proposal is later consummated (iii) whether or not within 12 twelve months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for For purposes of this Section 8.03(c)the foregoing, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.011.1, except that all references to 25“20% therein or more” shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)% or more.
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If (x) the Company shall have entered into a binding agreement for a Superior Transaction as a result of an Unsolicited Offer and either Parent or the Company shall have elected to terminate this Agreement is terminated by Buyer pursuant to Section 8.01(d8.2(d) or (y) there shall have occurred a Change the Company Recommendation, then:
(i) in accordance with Section 8.2(d)(iv), then the Company shall promptly pay to Parent the Parent Transaction Expenses;
(ii) in accordance with Section 8.2(d)(iv), the Company shall promptly instruct the Escrow Agent to release and pay to the Parent all amounts held by the Escrow Agent pursuant to the Escrow Agreement; and
(iii) if (x) in the event of a Superior Transaction, such Superior Transaction is consummated within one (1) year after the date the Company shall have approved such Superior Transaction or (y) any Alternative Transaction is consummated within 180 days, after the date of termination of this Agreement following a Change in the Company Recommendation, the Company shall pay to Buyer a sum of US$12,500,000 (Parent, simultaneously with the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date consummation of such termination Superior Transaction, or Alternative Transaction, as the case may be, an amount equal to US$5,000,000, less the amount of this Agreementany Parent Transaction Expenses previously paid to Parent.
(b) If as a result of the Company's violation of Section 6.1(a), Parent shall have elected to terminate this Agreement pursuant to Section 8.4, then:
(i) the Company shall promptly pay to the Parent US$1,500,000;
(ii) the Company shall promptly instruct the Escrow Agent to release and pay to the Parent all amounts held by the Escrow Agent pursuant to the Escrow Agreement; and
(iii) if an Alternative Transaction is terminated consummated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
one (c1) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months year after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer Parent, simultaneously with the consummation of such Alternative Transaction, an additional US$3,500,000.
(iv) For avoidance of doubt, under the circumstances described in Section 8.7(b), no Parent Transaction Expenses shall be due and payable by the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in Parent.
(c) In the event this Section 8.03(c), Agreement is terminated upon (i) mutual agreement of the Company Termination Fee shall not be payable if and the Nonclearance Termination Fee is payable Parent, (ii) a material breach of the Agreement by Buyer the Company, (iii) the failure to obtain any approval of a Governmental Authority required to consummate the Merger, or (iv) failure of the Company to satisfy a material condition to the Company Parent's obligation to consummate the Merger that has not been waived in writing by the Parent or excused pursuant to the terms of Section 8.03(h)this Agreement, the Company shall promptly instruct the Escrow Agent to release and pay to the Parent all amounts held by the Escrow Agent pursuant to the Escrow Agreement.
(d) If this Agreement is terminated Notwithstanding anything herein to the contrary, the aggregate amount to be paid by the Company or Buyer to Parent pursuant to this Section 8.01(e)8.7 shall not exceed US$5,000,000 under any circumstances. For the avoidance of doubt, then Buyer payment of any monies by the Company pursuant to this Section 8.7 shall pay be in addition to the release to the Parent of all moneys held by the Escrow Agent pursuant to the Escrow Agreement, and none of the amounts paid by the Company a sum pursuant to this Section 8.7 or the monies held by the Escrow Agent pursuant to the Escrow Agreement shall be set-off or deducted from each other. For avoidance of US$30,000,000 (a “Buyer Fee” doubt, the fees and the “Buyer Termination Fee”expenses payable pursuant to Sections 8.7(a) by wire transfer of same-day funds as promptly as reasonably practicable (andand 8.7(b) are not cumulative, in any eventbut are alternative remedies, within two business days following the date of termination of this Agreement)and constitute liquidated damages.
(e) If (i) this Agreement is terminated Any monies to be paid by the Company pursuant to this Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to 8.7 shall be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination paid by wire transfer of same day funds to an account designated by Parent.
(f) The agreements contained in writing Section 8.2(d) and Section 8.7 are an integral part of the transactions contemplated hereby, do not constitute a penalty, and constitute liquidated damages and constitute the sole remedy of the Parent and the Purchaser with respect to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement and/or abandonment of the Merger under the circumstances described in Section 8.2(d). In the event of any dispute between the Company and Parent as to whether any monies are due and payable pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c8.2(d) or Section 8.03(g) 8.7, the prevailing party shall be entitled to receive from the sole other party the reasonable costs and exclusive remedy of Buyer expenses (including reasonable legal fees and Parent against expenses) incurred in connection with any action, including the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents filing of any lawsuit or other legal action relating to such dispute. Interest, calculated at the publicly announced prime rate of the foregoing (togetherBank of America, N.A., shall be paid on the “Company Representatives”) for any loss suffered as a result amount of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer unpaid monies required to be consummatedpaid by the Company pursuant to this Section 8.7, and upon payment of calculated from the date such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating monies were required to or arising out of this Agreement or the transactions contemplated by this Agreementbe paid.
Appears in 1 contract
Samples: Merger Agreement (Simula Inc)
Termination Fees and Expenses. (ai) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d8.01(c)(i) or by the Company pursuant to Section 8.01(d)(i), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) Fee to Parent in immediately available funds, in the case of a termination by wire transfer of same-day funds Parent, within two business days following the date of (2) Business Days after such termination and, in the case of this Agreementa termination by the Company, immediately before and as a condition to such termination.
(bii) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.01(f), then 8.01(b)(ii)(B) or by Parent pursuant to Section 8.01(c)(ii) with respect to the Company shall pay Company’s breach or failure to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination perform an agreement or covenant under Section 4.03 of this Agreement.
, (c) If (iB) after the date of this Agreement but and prior to the date of termination of this AgreementCompany Stockholder Meeting or such termination, as applicable, an Acquisition Proposal shall have become been publicly known announced or otherwise communicated to the Company Stockholders and not withdrawn in the case of termination pursuant to clause (B) of Section 8.01(b)(ii) prior to the Company Stockholder Meeting or in the case of termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b)8.01(c)(ii) prior to the date of termination, or (B) by Buyer pursuant to Section 8.01(h) and (iiiC) within 12 months after following the date of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any with respect to such Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made)Proposal, then, in any such case, then the Company shall pay to Buyer Parent in immediately available funds, concurrently with consummation of such Acquisition Proposal, the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely Fee; provided that for purposes of this Section 8.03(c9.04(b)(ii), all references to 15% in the term definition of “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).”
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(eiii) If (iA) either Parent or the Company terminates this Agreement is terminated by the Company pursuant to (x) Section 8.01(g8.01(b)(i) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfiedtermination, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause Section 7.01(b) or Section 7.01(c) (iif and only if the applicable event giving rise to the failure of such condition under either Section 7.01(b) or Section 7.01(c) to be satisfied arises in connection with the failure of this clause (hthe waiting period under the HSR Act to expire or be terminated, approvals, consents or authorizations under any Foreign Antitrust Laws or the MARAD Approval), then Buyer shall have not been satisfied or (y) Section 8.01(b)(ii)(A) (if, and only if, the applicable restraint or order giving rise to such termination arises in connection with the failure of the waiting period under the HSR Act to expire or be terminated, approvals, consents or authorizations under any Foreign Antitrust Laws, the MARAD Approval or the consent referenced in Schedule 3.01(c)(vi)(Item b)) and (B) at the time of such termination, the conditions to Closing set forth in Section 7.01(b) (other than those related to the failure of the waiting period under the HSR Act to expire or be terminated, or approvals, consents or authorizations under any Foreign Antitrust Laws or the MARAD Approval), Section 7.02(a), Section 7.02(b) and Section 7.02(c) (other than those conditions that by their nature can be satisfied only at the Closing, but subject to such conditions being capable of being satisfied if the Closing Date were the date of such termination) shall have been satisfied or waived in accordance with this Agreement, Parent shall pay a the Regulatory Termination Fee within two (2) Business Days of such termination fee equal to US$50,000,000 an account as directed by the Company.
(a iv) The “Buyer Company Termination Fee” and the “Nonclearance Regulatory Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds ” shall each be equal to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable$20,000,000.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d9.01(e) or is terminated by the Company pursuant to Section 9.01(b)(iii) at a time when the termination of this Agreement by Parent is permitted pursuant to Section 9.01(e), then the Company shall pay to Buyer a sum of US$12,500,000 Sponsor (or any other Person designated by Parent in writing) the “Company Termination Fee”) Fee by wire transfer of same-day funds within two business days (2) Business Days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(f), then the Company shall pay to Buyer Sponsor (or any other Person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds within two business days following funds, concurrently with, and as a condition to the date of effectiveness of, such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreementpublicly withdrawn, (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b9.01(b)(i) (other than in the event such termination requires Parent to pay the Company the Parent Termination Fee pursuant to the terms hereof), (B) by Parent or the Company pursuant to Section 9.01(b)(iii), or (BC) by Buyer Parent pursuant to Section 8.01(h9.01(c) due to a breach by the Company of any of its representations, warranties, covenants or agreements set forth in this Agreement, and (iii) within 12 months after of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal is consummated (regardless of when made), then, in any such case, the Company shall pay to Buyer the Sponsor (or any other Person designated by Parent in writing) the Company Termination Fee (less the amount of the payment previously paid pursuant to Section 9.03(e)) by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c9.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein "15%" in the definition of "Acquisition Proposal" shall be deemed to be references to "50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)."
(d) If this Agreement is terminated by the Company or Buyer pursuant to (i) Section 8.01(e9.01(d) due to a breach by Parent or Sub of its representations or warranties or the failure by Parent or Sub to perform any of its covenants or agreements set forth in this Agreement, which breach or failure to perform has caused the failure of the Offer or the Merger to be consummated, (ii) Section 9.01(g) or (iii) Section 9.01(h), then Buyer Parent shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Parent Termination Fee”) Fee by wire transfer of same-same day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days) following the date of termination of this Agreement).
(e) If (i) after the date of this Agreement, an Acquisition Proposal shall have become publicly known and not publicly withdrawn and (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.01(g9.01(b)(i) (other than in the event such termination requires Parent to pay the Company the Parent Termination Fee pursuant to the terms hereof), or (B) by Parent pursuant to Section 9.01(c) due to a Knowing breach by the Company of any of its representations, warranties, covenants or agreements set forth in this Agreement, then the Company shall, as compensation for the substantial amount of fees and Material Breach of expenses incurred by Sponsor, Parent, Sub and their Affiliates in connection with this Agreement and the transactions contemplated hereby, pay Merger Sub the amount of $1,500,000 by Buyer or Parent, wire transfer of same day funds within two (ii2) Business Days following any such termination pursuant to this Section 9.03(e).
(f) If (i) (A) all the Offer Conditions shall have been satisfied or waived as of the expiration of the Offer (other than (x) the conditions specified in clauses Financing Proceeds Condition and (iiy) the delivery of the certificate contemplated by the fifth to last paragraph of Annex I which, by its terms, may only be delivered as of the Offer Closing, but only so long as it is capable of being satisfied as of the Offer Closing) or (iiiB) all of the first paragraph of Annex Iconditions set forth in Section 8.01 (other than Section 8.01(d), to the extent the Offer Termination has occurred) and Section 8.02 shall have been satisfied (or, with respect to certificates other than those conditions that by their terms are to be delivered satisfied by actions taken at the Closing pursuant to Annex IMerger Closing, are each of which is capable of being satisfied upon at the Merger Closing), (iii) the conditions specified in clauses and (ii) (A) Parent and the Company terminate this Agreement pursuant to Section 9.01(a) or (iiiB) of Parent or the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of Company terminate this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of pursuant to Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent9.01(b)(i), then Buyer Parent shall pay to the Company the Nonclearance Parent Termination Fee by wire transfer of same-same day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days) following the date of any such termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure Each of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” Parent acknowledges and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided agrees that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary agreements contained in this Agreement or otherwise, (i) the Company’s receipt Section 9.03 are an integral part of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of that, without these agreements, neither the Company Termination Feenor Parent would have entered into this Agreement; accordingly, if the Company or Parent, as the case may be, fails promptly to pay the fee or reimbursement amount due pursuant to Section 8.03(a)9.03, Section 8.03(b)and, Section 8.03(c) in order to obtain such payment, Parent or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent Company commences an Action that results in an award against the Companyother Party for such fee or reimbursement, the Company or Parent, as the case may be, shall pay to the other Party its Subsidiaries costs and any of their respective formerexpenses (including reasonable attorneys' fees and expenses) in connection with such Action, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any together with interest on the amount of the foregoing (together, applicable fee or reimbursement from the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer date such payment was required to be consummated, and upon made until the date of payment of at the prime lending rate as published in The Wall Street Journal in effect on the date such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating payment was required to or arising out of this Agreement or the transactions contemplated by this Agreementbe made.
Appears in 1 contract
Termination Fees and Expenses. The Merger Agreement provides that all costs and expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby will be paid by the party incurring such expenses, except (ai) If this as otherwise described below, and (ii) with respect to costs of obtaining certain governmental approvals. The Merger Agreement is terminated by Buyer pursuant to Section 8.01(d), then provides that if the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Merger Agreement is terminated by the Company pursuant to Section 8.01(fthe provisions described in clause (d) above, clause (e) above, clause (g) above (as a result of a breach of the Merger Agreement by Purchaser), then or clause (h) above, the $5 Million Deposit shall be forthwith paid to the Company as liquidated damages, which remedy shall pay to Buyer represent the only damages that may be sought by the Company Termination Fee by wire transfer or any Company shareholder under the Merger Agreement in the event of same-day funds within two business days following the date of such a termination of the Merger Agreement as aforesaid or any violation or breach of the Merger Agreement which gave rise thereto. The Merger Agreement provides that if it is terminated for any reason other than the provisions referenced in this paragraph, the $5 Million Deposit shall be returned to Purchaser and no party shall have any further liability under the Merger Agreement.
. If the Merger Agreement is terminated prior to consummation of the Offer pursuant to the provisions described in clause (b) above, clause (c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b)above, or (B) as a result of the willful breach of covenant or agreement under the Merger Agreement by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such terminationthe Company, which breach is not cured by the Company enters into a definitive agreement providing for any transaction contemplated within 30 days after written notice by any Acquisition Proposal Purchaser to the Company reasonably describing such breach) clause (regardless of when madef) above or clause (which transaction is thereafter consummatedg) or consummates any Acquisition Proposal (regardless of when made), then, in any such caseabove, the Company shall pay to Buyer Purchaser a fee (the Company Termination Fee "Fee") equal to $2,500,000 and shall reimburse Purchaser for its reasonable out-of-pocket expenses up to a maximum amount of $500,000 incurred in connection with the transactions contemplated by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c)Merger Agreement, the term “Acquisition Proposal” shall have the meaning assigned to payment of such term in Section 1.01, except that all references to 25% therein shall be deemed Fee to be references made simultaneously with the termination of the Merger Agreement and the reimbursement of such expenses to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c)be made promptly upon presentation of invoices therefor. Moreover, the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Merger Agreement is terminated by the Company or Buyer pursuant prior to Section 8.01(e), then Buyer shall pay to the Company a sum consummation of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
the provisions described in clause (if) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall above (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any the non-willful breach of any representation, warranty, covenant or agreement under the Merger Agreement by the Company, which breach is not cured by the Company within 30 days after written notice by Purchaser or Parent to the Company reasonably describing such breach), the Company shall reimburse Purchaser for its reasonable out-of-pocket expenses, up to a maximum amount of $1,000,000, incurred in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or connection with the transactions contemplated by this the Merger Agreement, the reimbursement of such expenses to be made promptly upon presentation of invoices therefor. Such expense reimbursement shall represent liquidated damages and (ii) Buyer’s receipt the only damages that may be sought by Purchaser in the event of a termination of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Merger Agreement.
Appears in 1 contract
Samples: Merger Agreement (Startt Acquisition Inc & Startt Acquisition LLC)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d9.01(e) (other than as a result of an Intervening Event Change of Recommendation), then the Company shall pay to Buyer Parent (or a sum of US$12,500,000 (Person designated by Parent in writing) the “Company Termination Fee”) Fee by wire transfer of same-day funds within two business days (2) Business Days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(f), then the Company shall pay to Buyer Parent (or a Person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds within two business days following funds, concurrently with, and as a condition to the date of effectiveness of, such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to (x) if the termination Person making such Acquisition Proposal is either the same Person that participates in the consummation of the Acquisition Proposal contemplated in clause (iii) of this AgreementSection 9.03(c), or is an Affiliate or “associate” (as defined in the Exchange Act) of another Person that participates in the consummation of the Acquisition Proposal contemplated in clause (iii) of this Section 9.03(c), not irrevocably and in good faith publicly withdrawn or (y) if the Person making such Acquisition Proposal is not the same Person that participates in the consummation of the Acquisition Proposal contemplated in clause (iii) of this Section 9.03(c), and is not an Affiliate or “associate” (as defined in the Exchange Act) of another Person that participates in the consummation of the Acquisition Proposal contemplated by clause (iii) of this Section 9.03(c), not in good faith publicly withdrawn (it being agreed that for purposes of this clause (y), a public withdrawal will be deemed in good faith unless the Company has actual knowledge that such withdrawal was not made in good faith), (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b9.01(b)(i), (B) by Parent or the Company pursuant to Section 9.01(b)(iii) (and there has been no Intervening Event Change of Recommendation prior to the Stockholders’ Meeting), or (BC) by Buyer Parent pursuant to Section 8.01(h9.01(c) due to a willful breach by the Company of any of its representations or warranties set forth in this Agreement or due to the failure by the Company to perform any of its covenants or agreements set forth in this Agreement, and (iii) within 12 months after of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal is consummated (regardless of when made), then, in any such case, the Company shall pay to Buyer the Sponsor the Company Termination Fee (less the amount of expenses previously paid pursuant to Section 9.03(e)) by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c9.03(c), all references to “15%” in the term definition of “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).”
(d) If this Agreement is terminated by the Company or Buyer pursuant to (i) Section 8.01(e9.01(d) due to a willful breach by Parent of any of its representations or warranties or the willful failure by Parent to perform any of its covenants or agreements set forth in this Agreement, (ii) Section 9.01(g) or (iii) Section 9.01(h), in each case, then Buyer Parent shall pay to the Company the Parent Termination Fee by wire transfer of same day funds as promptly as practicable (and, in any event, within two (2) Business Days) following the date of termination of this Agreement.
(e) In the event that this Agreement is terminated by (i) Parent pursuant to Section 9.01(e) as a sum result of US$an Intervening Event Change of Recommendation pursuant to Section 6.02(d)(ii) or (ii) the Company or Parent pursuant to Section 9.01(b)(iii) and prior to the date of the Stockholders’ Meeting the Company Board has made an Intervening Event Change of Recommendation pursuant to Section 6.02(d)(ii), then the Company shall pay to Parent (or a Person designated by Parent in writing) a termination fee of $30,000,000 (a “Buyer Fee” and the “Buyer Intervening Event Termination Fee”) by wire transfer of same-day funds within two (2) Business Days following the date of such termination of this Agreement.
(f) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.01(b)(iii) or (ii) (A) after the date of this Agreement, an Acquisition Proposal shall have become publicly known and not publicly withdrawn and (B) thereafter, this Agreement is terminated (x) by Parent or the Company pursuant to Section 9.01(b)(i), or (y) by Parent pursuant to Section 9.01(c) due to a willful breach by the Company of any of its representations or warranties set forth in this Agreement or due to the failure by the Company to perform any of its covenants or agreements set forth in this Agreement, then the Company shall reimburse Parent for all documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources (including commitment fees), experts, consultants and the costs of all filing fees and printing costs) incurred by Sponsor, Parent, Sub or their Affiliates in connection with this Agreement or the transactions contemplated hereby by payment to Parent (or a Person designated by Parent in writing) of the amount thereof by wire transfer of same day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days following request therefor); provided, however, that the date maximum aggregate amount of termination of this Agreement).
(e) If (i) this Agreement is terminated by fees and expenses for which the Company shall be required to reimburse pursuant to this Section 8.01(g9.03(f) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement)$4,700,000.
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure Each of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” Parent acknowledges and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided agrees that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary agreements contained in this Agreement or otherwise, (i) the Company’s receipt Section 9.03 are an integral part of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of that, without these agreements, neither the Company Termination Feenor Parent would have entered into this Agreement; accordingly, if the Company or Parent, as the case may be, fails promptly to pay the fee or reimbursement amount due pursuant to Section 8.03(a)9.03, Section 8.03(b)and, Section 8.03(c) in order to obtain such payment, Parent or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent Company commences an Action that results in an award against the Companyother Party for such fee or reimbursement, the Company or Parent, as the case may be, shall pay to the other Party its Subsidiaries costs and any of their respective formerexpenses (including reasonable attorneys’ fees and expenses) in connection with such Action, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any together with interest on the amount of the foregoing (together, applicable fee or reimbursement from the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer date such payment was required to be consummated, and upon made until the date of payment of at the prime lending rate as published in The Wall Street Journal in effect on the date such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating payment was required to or arising out of this Agreement or the transactions contemplated by this Agreementbe made.
Appears in 1 contract
Termination Fees and Expenses. (a) If All costs and expenses incurred in connection with this Agreement and the consummation of the Transactions shall be paid by the party incurring such expenses. Without limitation, the expenses of preparing, duplicating and disseminating the Offer Documents shall be borne by the Purchaser, and the expenses of preparing, duplicating and disseminating the Schedule 14D-9 shall be borne by the Company, irrespective of which party disseminates such materials to the Company’s stockholders. It is terminated by Buyer understood that all fees and other charges of Xxxxxxxxxx Xxxxxxxx LLP are being incurred for the benefit of the Company.
(b) Notwithstanding anything to the contrary herein, including, without limitation Section 7.3(a) herein, if (i) the Company shall enter into an agreement which accepts or implements a Superior Proposal; (ii) the Company shall terminate or abandon the Transactions pursuant to Section 8.01(d7.1(c)(ii), ; or (iii) Parent shall terminate or abandon the Transactions pursuant to Section 7.1(d)(ii) (other than for reason of the failure of the condition set forth in paragraph (c)(iv) or (c)(ix) of Annex A hereto); then the Company shall pay to Buyer a sum Parent an amount equal to the Termination Fee plus an amount equal to Parent’s actual and reasonably documented out-of-pocket fees and expenses (excluding any contingent fees and expenses of US$12,500,000 (financial advisors or brokers) incurred by Parent and Purchaser in connection with the “Company Offer, the Merger, this Agreement and the consummation of the Transactions in an amount not to exceed $600,000. The Termination Fee”) by wire transfer Fee and Parent’s good faith estimate of same-its expenses shall be paid in same day funds within two business days following concurrently with the date execution of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant an agreement referred to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If in subsection (i) after the date of this Agreement but prior above or any termination or abandonment referred to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses subsections (ii) or (iii) above, whichever shall first occur, together with delivery of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for a written acknowledgment by the Debt Financing Commitments (or any Alternative Financing) Company of its obligation to reimburse Parent for its actual expenses in an amount no less than US$430,000,000 has been fundedexcess of such estimated expense payment. As promptly as practicable after receipt thereof, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer Parent shall pay deliver to the Company copies of all final invoices and bills related to Parent’s and Purchaser’s actual reasonable out-of-pocket fees and expenses incurred by them in connection with the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (andOffer, in any eventthe Merger, within two business days following the date of termination of and this Agreement).
(f) . If this Agreement is terminated such fees and expenses as documented in reasonable detail exceed the good faith estimate of fees and expenses paid by the Company pursuant prior to Section 8.01(g) due to a Knowing receipt of such invoices and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Companybills, then the Company shall pay to Buyer reimburse Parent for its actual fees and expenses in excess of such estimated expense payment in accordance with its written acknowledgement of such obligation. If such fees and expenses as documented in reasonable detail are less than the estimate of fees and expenses paid by the Company Termination Fee prior to receipt of the final invoices and bills, then Parent shall reimburse the Company for such excess payment. All payments required to be made hereunder shall be made by wire transfer of same-day immediately available funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both days of the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else event giving rise to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none . Each of Parent and the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out acknowledges that the agreements contained in this Section 7.3 are an integral part of this Agreement or the transactions contemplated by herein and that, without said agreements, neither Parent nor the Company would have entered into this Agreement; accordingly, if Company fails promptly to pay the amounts due pursuant to this Section 7.3, and, in order to obtain such payment, Parent commences an action that results in a judgment against the Company for failure to make such payments, the Company will pay Parent’s reasonable expenses (including attorneys’ fees and expenses) in connection with such action, together with interest on the amounts due hereunder at the prime rate of Bank of America in effect on the date the payment was due determined by the court rendering such judgment.
Appears in 1 contract
Termination Fees and Expenses. (a) If In the event that this Agreement is terminated (i) by Buyer pursuant to Section 8.01(d9.01(a) and (ii) at the time of such termination, all of the conditions set forth Section 6.02 have been satisfied or validly waived, other any conditions which by their nature are to be satisfied at the Closing (but provided that such conditions described in this clause (ii) would be capable of being satisfied if the Closing were to take place on the date of such termination), then promptly, but in any event within five (5) Business Days after the Company date of such termination, Seller and the Shareholder (jointly and severally) shall pay or cause to be paid to Buyer a sum by wire transfer of US$12,500,000 immediately available funds to an account(s) designated by Buyer an amount not to exceed $200,000 (such amount, the “Company Buyer Termination Fee”) by wire transfer equal to Buyer’s out-of-pocket costs and expenses incurred in connection with (x) its due diligence investigation of same-day funds within two business days following the date of such termination Company and the Business, (y) the documentation and negotiation of this AgreementAgreement and the Ancillary Documents and (z) the attempted consummation of the transactions contemplated hereby and thereby.
(b) If In the event that this Agreement is terminated (i) by Seller or the Company Shareholder pursuant to Section 8.01(f9.01(b) and (ii) at the time of such termination, all of the conditions set forth Section 6.01 have been satisfied or validly waived, other any conditions which by their nature are to be satisfied at the Closing (but provided that such conditions described in this clause (ii) would be capable of being satisfied if the Closing were to take place on the date of such termination), then promptly, but in any event within five (5) Business Days after the Company date of such termination, Buyer shall pay or cause to Buyer the Company Termination Fee be paid to Seller by wire transfer of sameimmediately available funds to an account(s) designated by Seller an amount not to exceed $200,000 (such amount, the “Seller Termination Fee”) equal to Seller’s and the Shareholder’s out-day funds within two business days following of-pocket costs and expenses incurred in connection with (x) the date of such termination documentation and negotiation of this AgreementAgreement and the Ancillary Documents and (y) the attempted consummation of the transactions contemplated hereby and thereby.
(c) If (i) after Nothing in this Section 9.03 shall restrict the date entitlement of this Agreement but prior any party hereto to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known seek and not withdrawn obtain specific performance prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for nor any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) remedy in the case of termination pursuant to Section 8.01(c)(i)any other party hereto’s Fraud, the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, currentgross negligence, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources criminal or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementwillful misconduct.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Kingsway Financial Services Inc)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d8.1(e), then the Company shall pay to Buyer a sum of US$12,500,000 (Parent the “Company Termination Fee”) Fee by wire transfer of same-day funds within two business days Business Days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f8.1(f), then the Company shall pay to Buyer Parent the Company Termination Fee by wire transfer of same-day funds within two business days following funds, concurrently with, and as a condition to the date of effectiveness of, such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known Date and not withdrawn prior to the termination of this Agreement, a Takeover Proposal has been made by any Person or group and thereafter:
(iii) thereafter, (A) this Agreement is terminated (A1) by Buyer Parent or the Company pursuant to Section 8.01(b), 8.1(b)(iii) or (B2) by Buyer Parent pursuant to Section 8.01(h8.1(c) and (iiiB) within 12 months after such termination, the Company enters and any Person or group (or its Affiliate) who made such a Takeover Proposal enter into a definitive agreement providing for any a transaction contemplated by any Acquisition that would constitute a Takeover Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer Parent the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).or
(dii) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (iA) this Agreement is terminated by the Parent or Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent8.1(b)(i), (iiB) at the time of such termination, all Offer Conditions (of the conditions to the Merger set forth in Article VII other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex Iunder Section 7.1(b) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parentsatisfied, and (ivC) within 12 months after such termination, the financing provided for by the Debt Financing Commitments Company and any Person or group (or any Alternative Financingits Affiliate) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing who made such a Takeover Proposal enter into a definitive agreement providing for a transaction that would constitute a Takeover Proposal (which transaction is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreementthereafter consummated).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay reimburse Parent for all Transaction Expenses incurred by Parent, Merger Sub or their Affiliates up to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated in an amount not to exceed $2,900,000.00 by the Company or Buyer pursuant payment to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) Parent of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination amount thereof by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than promptly as explicitly required by Section 8.03(a) through Section 8.03(h) abovereasonably practicable, and in no any event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Feewithin two Business Days following request therefor.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then In the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.event that:
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company Parent pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing9.1(e)(i), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall shall, within three Business Days after such termination, pay to Buyer Parent the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer recognition of the time and expense incurred by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of Parent in connection with this Agreement and transactions contemplated hereby, or
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or 9.1(e)(ii), but only if prior to the Company Stockholder Meeting a Takeover Proposal shall have been made publicly to the extent holders of Company Common Stock or publicly announced, or any Person shall have publicly announced an intention to do so (in each of the foregoing cases, which has not been withdrawn prior to the Company Stockholder Meeting), provided that within 6 months of the date of such termination: (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition a Takeover Proposal is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable consummated; or (B) the Company board of directors approves or recommends a Takeover Proposal, or the Company enters into an agreement with respect to a Takeover Proposal, and in either case such Takeover Proposal (whether or not amended prior to its consummation) is consummated, and whether or not such consummation is before or after the case end of termination such 6 month period, then the Company shall, on or prior to the date that such Takeover Proposal is consummated, pay to Parent the Termination Fee by wire transfer of same day funds in recognition of the time and expense incurred by Parent in connection with this Agreement and transactions contemplated hereby; or
(iii) This Agreement is terminated (A) by the Company pursuant to Section 8.01(c)(ii9.1(f), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting (B) by the Offer Parent pursuant to applicable Antitrust LawsSection 9.1(j) then the Parent shall, and within three Business Days after such ordertermination, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by pay to the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required by wire transfer of same day funds in recognition of the time and expense incurred by the party entitled to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both receive the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in connection with this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementhereby.
Appears in 1 contract
Samples: Merger Agreement (Capital Gold Corp)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the The Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.agrees that:
(bi) If this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(c)(iii), then the Company shall pay the Termination Fee to Buyer Parent or its designee within five Business Days after the date of such termination by wire transfer of same day funds to one or more accounts designated by Parent or its designee; and
(ii) If this Agreement is terminated by Parent pursuant to Section 9.01(d), the Company shall, within five Business Days after the date of such termination, pay the Termination Fee to Parent or its designee by wire transfer of same day funds to one or more accounts designated by Parent or its designee; For the avoidance of doubt, in no event shall the Company be obligated to pay, or cause to be paid, the Termination Fee on more than one occasion.
(b) Parent agrees that if this Agreement is terminated by the Company pursuant to Section 9.01(c)(i) or Section 9.01(c)(ii), then Parent shall within five Business Days following such termination, pay or cause to be paid to the Company or its designees the Parent Termination Fee by wire transfer of same-same day funds within two business days following funds; provided that in no event shall Parent be required to pay the date Parent Termination Fee on more than one occasion, and provided further that nothing in this Section 9.03(b) shall limit the rights of such termination of this Agreementthe Company under Section 10.06(c).
(c) If (i) after the date of Parent shall terminate this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), 9.01(d) or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (iii) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing9.01(c)(iii), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then such event the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company Parent or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination designee by wire transfer of same day funds funds, as promptly as possible (but in any event within three Business Days) following the delivery by Parent of an invoice therefor, all Expenses incurred by Parent, Merger Sub and their respective Affiliates in connection with the Transactions up to an account designated in writing a maximum amount equal to Buyer by US$500,000.
(d) If the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of terminate this Agreement pursuant to Section 8.01(c)(i9.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or 9.01(c)(ii), then Parent shall pay the Company or its designee by wire transfer of same day funds, as promptly as possible (but in any event within three Business Days) following the delivery by the Company of an invoice therefor, all Expenses incurred by the Company and its Affiliates in connection with the Transactions up to the extent that (A) in the case of termination pursuant a maximum amount equal to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealableUS$500,000.
(ie) No The Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, Parent acknowledge that (i) the Company’s receipt agreements contained in this Section 9.03 are an integral part of the Buyer Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Termination Fee or Nonclearance Parent Termination FeeFee is payable are uncertain and incapable of accurate calculation and therefore, as applicable, the amounts payable pursuant to Section 8.03(d), 8.03(e), 8.03(f) 9.03 are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Parent or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without the agreements contained in this Section 9.03, the Parties would not have entered into this Agreement. In the event that any party shall fail to Section 8.03(a)pay the Termination Fee, Section 8.03(b)Parent Termination Fee or any Expenses when due, Section 8.03(c) and, in order to obtain the payment, Parent or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, as the case may be, commences an Action which results in a judgment against the other party for such payment, such paying party shall pay the other party its Subsidiaries reasonably documented costs and any expenses (including reasonable legal fees and expenses) in connection with such Action, together with interest on such amount at the annual rate of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of five percent (5%) plus the foregoing (together, prime rate as published in the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement Wall Street Journal in this Agreement or effect on the failure of the Offer date such payment was required to be consummated, and upon made through the date such payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementis actually received.
Appears in 1 contract
Samples: Merger Agreement (SYSWIN Inc.)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d9.01(e), then the Company shall pay to Buyer Sponsor (or any other Person designated by Parent in writing) (i) a sum portion of US$12,500,000 (the “Company Termination Fee”) Fee equal to $500,000 by wire transfer of same-day funds within two business days (2) Business Days following the date of such termination of this Agreement, and (ii) the remainder of the Company Termination Fee in the form of a Break Fee Note.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(f), then the Company shall pay to Buyer Sponsor (or any other Person designated by Parent in writing) (i) a portion of the Company Termination Fee equal to $500,000 by wire transfer of same-day funds within two business days following funds, concurrently with, and as a condition to the date of effectiveness of, such termination of this Agreement, and (ii) the remainder of the Company Termination Fee in the form of a Break Fee Note.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreementpublicly withdrawn, (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b9.01(b)(i), or (B) by Buyer Parent pursuant to Section 8.01(h9.01(c) due to a breach by the Company of any of its representations, warranties, covenants or agreements set forth in this Agreement, and (iii) within 12 months after of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal made by a Third Party (regardless other than any of when made) the Xxxxxxxxxx Funds or their Affiliates that was publicly known prior to such termination (and which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Sponsor (or any other Person designated by Parent in writing) the full amount of the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure Each of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” Parent acknowledges and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided agrees that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary agreements contained in this Agreement or otherwise, (i) the Company’s receipt Section 9.03 are an integral part of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of that, without these agreements, neither the Company Termination Feenor Parent would have entered into this Agreement; accordingly, if the Company, as the case may be, fails promptly to pay the Company Termination Fee due pursuant to Section 8.03(a)9.03, Section 8.03(b)and, Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and in order to obtain such payment, Parent commences an Action that results in an award against the CompanyCompany for such Company Termination Fee, the Company shall pay to Parent its Subsidiaries reasonable and any of their respective formerdocumented costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Action, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any together with interest on the amount of the foregoing (together, Company Termination Fee from the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer date such payment was required to be consummated, and upon made until the date of payment of at the prime lending rate as published in The Wall Street Journal in effect on the date such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating payment was required to or arising out of this Agreement or the transactions contemplated by this Agreementbe made.
Appears in 1 contract
Samples: Merger Agreement (Dialogic Inc.)
Termination Fees and Expenses. (a) If In addition to any other amounts which may be payable pursuant to any other paragraph of this Section 7.3, the Company shall, following the termination of this Agreement pursuant to Section 7.1(e) promptly, but in no event later than one business day following written notice thereof, together with reasonable supporting documentation, reimburse Parent, for all out-of-pocket expenses and fees (including fees payable to all counsel, accountants, financial advisors, financial printers, experts and consultants), whether incurred prior to, concurrently with or after the execution of this Agreement, in connection with the Merger and the consummation of all transactions contemplated by this Agreement (collectively, the "Expenses").
(b) In the event that this Agreement is terminated by Buyer Parent pursuant to Section 8.01(dSections 7.1(e), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) Parent by wire transfer of same-immediately available funds to an account designated by Parent on the next business day funds within two business days following the date of such termination of this Agreement.
an amount equal to $1,500,000 (b) If this Agreement is terminated by the Company pursuant to Section 8.01(f"Termination Fee"), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If all of the following events have occurred:
(i) a Transaction Proposal is publicly disclosed, publicly proposed or otherwise communicated to the Company at any time on or after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of hereof, and either (A) Parent or the Company terminates this Agreement, Agreement pursuant to Sections 7.1(c) or 7.1(d) or (B) Parent terminates this Agreement pursuant to Section 7.1(f)(ii); and
(ii) thereafter, this Agreement is terminated (A) by Buyer or within 18 months of the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after date of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition with respect to, or consummates, such Transaction Proposal (regardless or any other Transaction Proposal commenced in response to and during the pendency of when madea Transaction Proposal noted in subpart (i) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when madeabove), ; then, in any such case, the Company shall in the event not already paid pay to Buyer Parent an amount equal to the Company Termination Fee by wire transfer and Expenses concurrently with the earlier of same-day funds on the date execution of such transaction is consummateddefinitive agreement or the consummation of such Transaction Proposal. Solely for purposes of this Section 8.03(c), In the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except event that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If subpart (i) this Agreement above is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parentnot applicable, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i)enters into a 41 definitive agreement with respect to, the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii)consummates, any Governmental Authority shall have issued an orderTransaction Proposal, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance then no Termination Fee or monetary damages Expenses shall be payable by the Company, Buyer or Company to Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If Notwithstanding any provision in this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreementcontrary, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).if:
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g8.1(g), the Company shall pay the Purchaser or an Affiliate of the Purchaser designated by the Purchaser a fee of $ 14,239,000 in cash (the “Company Termination Fee”) due prior to a Knowing and Material Breach of this Agreement by Buyer or Parent, simultaneous with such termination;
(ii) all Offer Conditions this Agreement is terminated by the Purchaser pursuant to Section 8.1(h) , the Company shall pay the Purchaser or an Affiliate of the Purchaser designated by the Purchaser the Company Termination Fee no later than two (other than the conditions specified in clauses (ii2) or Business Days after such termination;
(iii) this Agreement is terminated by the Purchaser pursuant to Section 8.1(f), the Company shall pay the Purchaser or an Affiliate of the first paragraph of Annex IPurchaser designated by the Purchaser the Purchaser Expenses (as defined below) have been satisfied no later than two (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii2) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and Business Days after such termination; and
(iv) prior to the financing termination of this Agreement, (A) any bona fide Acquisition Proposal (provided that for the purpose of this Section 8.2(a)(iv) any reference in the definition of Acquisition Proposal to twenty percent (20%) shall be deemed to be a reference to fifty percent (50%)) is publicly proposed or otherwise privately communicated to the Board of Directors, (B) this Agreement is terminated by the Debt Financing Commitments Purchaser or the Company pursuant to Section 8.1(b) or Section 8.1(d) or by the Purchaser pursuant to Section 8.1(f) and (C) no later than nine (9) months after such termination, any definitive agreement providing for any Acquisition Proposal shall have been entered into or any Alternative Financing) Acquisition Proposal consummated (in an amount no less than US$430,000,000 has been funded, will each case which need not be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parentsame Acquisition Proposal), then Buyer in any such event the Company shall pay to the Purchaser the Company Termination Fee, simultaneously with the Nonclearance Termination Fee by wire transfer consummation of same-day funds as promptly as reasonably practicable (and, in such Acquisition Proposal or any event, within two business days following the date of termination of this Agreement)Acquisition Proposal relating thereto.
(fb) If Notwithstanding any provision in this Agreement to the contrary, if:
(i) this Agreement is terminated by the Company pursuant to Section 8.01(g8.1(e)(i) due and the Purchaser’s breach or failure to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee perform is not payableintentional, then Buyer the Purchaser shall pay to the Company or an Affiliate of the Company designated by the Company the Buyer Termination Fee by wire transfer of same-day funds Company Expenses (as promptly as reasonably practicable defined below) no later than ten (and, in any event, within two business days following the date of termination of this Agreement).10) Business Days after such termination;
(gii) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If if this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b8.1(e)(i) and the Purchaser’s breach or Section 8.01(c)(ii), or by Buyer pursuant failure to Section 8.01(c)(i)perform is intentional, and at as of the time date of such termination (i) the conditions specified to closing set forth in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not Section 7.1 and 7.2 have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at Purchaser shall pay the Closing itself but as to which there is no state of facts Company or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure an Affiliate of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor designated by the Company $ $47,463,000 in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause cash (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Purchaser Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days no later than ten (10) Business Days after such termination; provided provided, that for the Nonclearance purposes of this Section 8.2(b)(ii) if the Purchaser obtains Financing that does not comply with the third sentence of Section 6.4(d) such action shall be deemed an intentional breach; and
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(e)(ii), the Purchaser shall pay the Company or an Affiliate of the Company designated by the Company the Purchaser Termination Fee no later than ten (10) Business Days after such termination.
(c) For the purposes of this Agreement, “Company Expenses” shall only be payable upon a mean all reasonable, actual and documented out-of-pocket costs and expenses incurred prior to the termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or on behalf of the Company and its Subsidiaries in connection with entering into this Agreement and the carrying out of any and all acts contemplated hereunder, including reasonable fees and expenses of counsel, investment banking firms, lenders or financial advisors, accountants, and consultants, up to an aggregate maximum amount of $5,000,000, and “Purchaser Expenses” shall mean all reasonable, actual and documented out-of-pocket costs and expenses incurred prior to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement by or on behalf of the transactions Purchaser, the Merger Sub or their Affiliates in connection with the entering into this Agreement and the carrying out of any and all acts contemplated by this Agreementhereunder, including reasonable fees and expenses of counsel, investment banking firms, lenders or financial advisors, accountants, and (ii) Buyer’s receipt consultants, up to an aggregate maximum amount of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement$5,000,000.
Appears in 1 contract
Termination Fees and Expenses. (a) If SBS shall pay to BMHC a fee of $15,730,000 (the “SBS Termination Fee”) if any of the following occur:
(i) this Agreement is terminated by Buyer SBS pursuant to Section 8.01(d8.01(f);
(ii) this Agreement is terminated by BMHC pursuant to Section 8.01(g); provided that if either BMHC or SBS terminates this Agreement pursuant to Section 8.01(b)(iii) and BMHC would then have been entitled to terminate this agreement pursuant to Section 8.01(g), then this Agreement shall be deemed terminated pursuant to Section 8.01(g) for purposes of this Section 8.02(a)(ii); or
(iii) (A) this Agreement is terminated by BMHC or SBS pursuant to (x) Section 8.01(b)(i) (provided that either the Company SBS Stockholders Meeting shall pay not have occurred at or prior to Buyer the time of such termination or the SBS Stockholder Approval shall not have been obtained at or prior to the time of such termination), (y) Section 8.01(b)(iii) or (z) Section 8.01(c) as a sum result of US$12,500,000 a willful failure to perform any covenant or agreement on the part of SBS set forth in this Agreement, and (B) after the date hereof, but prior to the date of the SBS Stockholders Meeting (in the case of Section 8.01(b)(iii)) or prior to the date this Agreement is terminated (in the case of Section 8.01(b)(i) or Section 8.01(c)), an SBS Acquisition Proposal shall have been made to SBS or directly to its stockholders generally (or shall have otherwise become publicly known or an intention with respect to such an SBS Acquisition Proposal shall have become publicly announced (whether or not conditional)) and (C) within 12 months of such termination SBS shall have entered into a definitive Acquisition Agreement with respect to any SBS Acquisition Proposal or an SBS Acquisition Proposal is consummated; provided that for purposes of this clause (iii) the references to “Company 25%” in the definition of “SBS Acquisition Proposal” shall be deemed to be references to “50%”. Any SBS Termination Fee”Fee due under this Section 8.03(a) shall be paid by wire transfer of same-day funds within two business days (x) in the case of clause (i) above, concurrently with the termination of this Agreement, (y) in the case of clause (ii) above, on the Business Day immediately following the date of such termination of this AgreementAgreement and (z) in the case of clause (iii) above, on the date of the first to occur of the events referred to in clause (iii)(C) above.
(b) If BMHC shall pay to SBS a fee of $23,600,000 (the “BMHC Termination Fee”) if any of the following occur:
(i) this Agreement is terminated by the Company SBS pursuant to Section 8.01(f8.01(e);
(ii) this Agreement is terminated by BMHC pursuant to Section 8.01(h);
(iii) this Agreement is terminated by SBS pursuant to Section 8.01(i); provided that if either BMHC or SBS terminates this Agreement pursuant to Section 8.01(b)(iii) and SBS would then have been entitled to terminate this agreement pursuant to Section 8.01(i), then this Agreement shall be deemed terminated pursuant to Section 8.01(i) for purposes of this Section 8.02(b)(iii); or
(iv) (A) this Agreement is terminated by BMHC or SBS pursuant to (x) Section 8.01(b)(i) (provided that the Company BMHC Stockholder Approval shall pay not have been obtained at or prior to Buyer the Company time of such termination) or (y) Section 8.01(d) as a result of a willful failure to perform any covenant or agreement on the part of BMHC set forth in this Agreement, and (B) after the date hereof, but prior to the date of this Agreement is terminated (in the case of Section 8.01(b)(i) or Section 8.01(d)), a BMHC Acquisition Proposal shall have been made to BMHC or directly to its stockholders generally (or shall have otherwise become publicly known or an intention with respect to such a BMHC Acquisition Proposal shall have become publicly announced (whether or not conditional)) and (C) within 12 months of such termination BMHC shall have entered into a definitive Acquisition Agreement with respect to any BMHC Acquisition Proposal or a BMHC Acquisition Proposal is consummated; provided that for purposes of this clause (iii) the references to “25%” in the definition of “BMHC Acquisition Proposal” shall be deemed to be references to “50%”. Any BMHC Termination Fee due under this Section 8.03(b) shall be paid by wire transfer of same-day funds within two business days following (x) in the date case of such clause (ii) above, concurrently with the termination of this Agreement.
, (cy) If in the case of clause (i) after or (iii) above, on the date of this Agreement but prior to Business Day immediately following the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior (z) in the case of clause (iv) above, on the date of the first to occur of the termination of this Agreement, events referred to in clause (iiiv)(C) thereafter, above.
(c) In the event this Agreement is terminated (Ai) by Buyer BMHC or the Company SBS pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made8.01(b)(i) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to either the contrary in this Section 8.03(c), the Company Termination Fee SBS Stockholders Meeting shall not be payable if the Nonclearance Termination Fee is payable by Buyer have occurred at or prior to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) or the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto SBS Stockholder Approval shall not have been satisfied, obtained at or prior to the time of such termination) or Section 8.01(b)(iii) or (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as BMHC pursuant to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h8.01(c), then Buyer SBS shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination reimburse BMHC for its Eligible Expenses by wire transfer of same day funds to an account designated in writing by BMHC within two Business Days of receipt from BMHC of a detailed invoice therefor. Any amount so received by BMHC shall be credited against any SBS Termination Fee payable pursuant to Buyer Section 8.02(a)(iii).
(d) In the event that this Agreement is terminated (i) by the Company at least two business days after such termination; BMHC or SBS pursuant to Section 8.01(b)(i) (provided that the Nonclearance BMHC Stockholder Approval shall not have been obtained at or prior to the time of such termination) or (ii) by SBS pursuant to Sections 8.01(d) or 8.01(e), then BMHC shall reimburse SBS for its Eligible Expenses by wire transfer of same-day funds to an account designated by SBS within two Business Days of receipt from SBS of a detailed invoice therefor. Any amount so received by SBS shall be credited against any BMHC Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i8.02(b)(iv), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(ie) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, SBS and BMHC acknowledge and agree that in no event shall (1) the Company SBS or BMHC be required to pay the Company SBS Termination Fee or BMHC Termination Fee, respectively, on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both . SBS and BMHC acknowledge and agree that the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary agreements contained in this Agreement or otherwise, (i) the Company’s receipt Section 8.02 are an integral part of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of that, without these agreements, neither BMHC nor SBS would enter into this Agreement. Accordingly, if SBS or BMHC fails promptly to pay the Company Termination Fee, as the case may be, amount due pursuant to Section 8.03(a)8.02, Section 8.03(b)and, Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (togetherin order to obtain such payment, the “Company Representatives”party owed such payment commences a Proceeding that results in a judgment in its favor for such payment, the party owing such payment shall pay to the party owed such payment its costs and expenses (including reasonable attorneys’ fees and expenses) for any loss suffered as a result in connection with such Proceeding, together with interest on the amount of any breach of any representation, warranty, covenant or agreement in this Agreement or such payment from the failure of the Offer date such payment was required to be consummatedmade until the date of payment at the prime rate of JPMorgan Chase Bank, and upon N.A. in effect on the date such payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating was required to or arising out of this Agreement or the transactions contemplated by this Agreementbe made.
Appears in 1 contract
Samples: Merger Agreement (Stock Building Supply Holdings, Inc.)
Termination Fees and Expenses. (a) If Parent shall pay to the Company the Reverse Termination Fee if any of the following occur:
(i) this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d7.1(b) (Outside Date) or by the Company pursuant to Section 7.1(c) (Outside Date) if at the time of, or prior to, such termination pursuant to Section 7.1(b) or Section 7.1(c), then the Company shall pay would have been entitled to Buyer a sum of US$12,500,000 terminate this Agreement pursuant to Section 7.1(j) (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.Failure to Close When Required);
(bii) If this Agreement is terminated by the Company pursuant to Section 8.01(f7.1(j) (Failure to Close When Required), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.; or
(ciii) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated by Parent pursuant to Section 7.1(b) (AOutside Date) or terminated by Buyer or the Company pursuant to Section 8.01(b)7.1(c) (Outside Date) and, or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after in either case, at the time of such termination, (x) the condition set forth in Section 6.1(c) has not been satisfied solely because any of the approvals, consents and consultations required to consummate the transactions contemplated by this Agreement pursuant to the Antitrust Laws of any jurisdiction listed on Section 7.2(a)(iii)1 of the Company enters into Disclosure Schedule have not been obtained or any applicable waiting period thereunder has not expired or been terminated (a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made“Specified Regulatory Requirement”), thenand Parent has not waived such condition with respect to such Specified Regulatory Requirement prior to the Outside Date, and (y) all other conditions set forth in Article 6 have been satisfied or waived (or, in any such casethe case of conditions that by their terms are to be satisfied at the Closing, are capable of being satisfied at the Closing).
(b) The Company shall pay or cause to Buyer be paid to Parent the Company Termination Fee by wire transfer if any of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).following occur:
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g7.1(d) due (Superior Proposal);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(e) (Change in Recommendation); or
(iii) (A) (1) the Company Meeting has not occurred prior to the Outside Date and either Parent or the Company terminates this Agreement pursuant to Section 7.1(b) (Outside Date) or Section 7.1(c) (Outside Date) or (2) either Parent or the Company terminates this Agreement pursuant to Section 7.1(f) (Company Stockholder Approval) or Section 7.1(h) (Company Breach), (B) a Knowing and Material Breach bona fide Acquisition Proposal (provided, that for purposes of this clause (iii), all references to “25%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) made by a Third Party has been publicly disclosed after the date of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than and prior to the conditions specified in clauses (ii) or (iii) date of such termination and has not been withdrawn prior to the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or ParentOutside Date, and (ivC) within twelve (12) months after such termination, the financing provided for by the Debt Financing Commitments Company and/or its Subsidiaries consummate an Acquisition Proposal.
(c) Any Reverse Termination Fee or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will Company Termination Fee due under this Section 7.2 shall be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay paid to the Company the Nonclearance Termination Fee appropriate party by wire transfer of same-day funds as promptly as reasonably practicable on the second (and, in any event, within two business days 2nd) Business Day immediately following the date of termination of this Agreement).
(f) If this Agreement is terminated by the , except that any Company Termination Fee payable pursuant to Section 8.01(g7.2(b)(i) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of be paid concurrently with such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances it being understood that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1i) Parent be required to pay the Reverse Termination Fee on more than one occasion or (ii) the Company be required to pay the Company Termination Fee on more than one occasion; or ).
(2d) Buyer be required to pay a Buyer Fee on more than one occasion; or The parties hereto acknowledge that (3i) Buyer be required to pay both the Buyer agreements contained in this Section 7.2 are an integral part of the Transactions, and that without these agreements, the parties would not enter into this Agreement, and (ii) each of the Reverse Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Company Termination Fee, as applicable, if, as and when required to be paid pursuant to this Section 8.03(d7.2, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. Accordingly, (x) if Parent fails to promptly pay the amounts due pursuant to this Section 7.2 and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for any amounts due pursuant to this Section 7.2, Parent shall pay to the Company the Company’s and its affiliates’ out-of-pocket, documented costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee, cost or expense was required to be paid to (but excluding) the payment date (collectively, “Termination Fee Collection Costs”) and (y) if the Company fails to promptly pay the amounts due pursuant to this Section 7.2 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amounts due pursuant to this Section 7.2, the Company shall pay or cause to be paid to Parent Parent’s and its affiliates’ Termination Fee Collection Costs; provided that in no event shall any party be required to pay Termination Fee Collection Costs in an aggregate amount exceeding $5,000,000.
(e) Notwithstanding anything to the contrary in this Agreement, if Parent or Merger Sub breaches or fails to perform hereunder (whether willfully (including a Willful and Material Breach), 8.03(eintentionally, unintentionally or otherwise), 8.03(f) or 8.03(h) shall be then the sole and exclusive remedy of the Company, its Subsidiariesaffiliates and each of its and its affiliates’ respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers and employees, and their respective shareholdersassignees (collectively, directorsthe “Company Related Parties”), officerswhether at law, employeesin equity, advisors and representatives in contract, in tort or otherwise, against Buyerany of Parent, Parent and Merger Sub, any Guarantor, any Debt Financing Source, any of their respective formeraffiliates, any of their and their affiliates’ respective direct or indirect current, former or future shareholders, controlling persons, managerspartners, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, managers and employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing and their respective assignees (togethercollectively, the “Buyer RepresentativesParent Related Parties”) for any loss breach, loss, Liability or damage in connection with this Agreement, any other agreements and instruments contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be the Company’s right (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Reverse Termination Fee, if applicable, plus, if applicable, the Termination Fee Collection Costs, if any, plus receipt of expense reimbursement and indemnity payments (if any) (up to an aggregate amount not exceeding $2,000,000) under Sections 5.5(b)(ii), 5.5(c) and 5.16(f), and (iii) to seek recovery of damages incurred or suffered as a result of a Willful and Material Breach of, or Fraud with respect to, any breach of any representationParent’s representations, warrantywarranties, covenant covenants or agreement other agreements set forth in this Agreement where such Willful and Material Breach or Fraud is the principal cause of a condition contained in Section 6.1 or Section 6.2 to (x) be incapable of being satisfied by the Outside Date or (y) if capable of being satisfied by the Outside Date, to not have been satisfied by the Outside Date, provided, however, that in no event shall the aggregate amount of liabilities and damages recoverable from Parent pursuant to this clause (iii) exceed $108,000,000. In the event that Reverse Termination Fee is paid to the Company in accordance with Section 7.2(a), then the sole and exclusive remedy of the Company and the Company Related Parties, whether at law, in equity, in contract, in tort or otherwise, against any of Parent or the failure Parent Related Parties for any breach, loss or damage in connection with this Agreement, any other agreement or instrument contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be as set forth in clause (ii) of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, immediately preceding sentence. Except as applicable, by Buyer, none of Buyerexpressly contemplated hereby, Parent or will not (nor will any Buyer Representative shall other Parent Related Party) have any further other liability or obligation to the Company or any other Company Related Party relating to or arising out of this Agreement or any other agreement or instrument contemplated hereby, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, in each case, other than any obligations of any Guarantor under the Guaranty. Notwithstanding anything to the contrary herein, (x) this Section 7.2(e) shall not relieve Parent or Apollo Management IX, L.P. from any Liability for any breaches of the Confidentiality Agreement and (y) it is agreed and understood that, notwithstanding anything herein to the contrary, the Company shall be entitled, under all circumstances, to pursue claims for both specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as any Reverse Termination Fee or monetary damages hereunder, but shall not be entitled to receive both an award of monetary damages and the Reverse Termination Fee.
(f) Notwithstanding anything to the contrary in this Agreement, if the Company breaches or fails to perform hereunder (whether willfully (including a Willful and Material Breach), intentionally, unintentionally or otherwise), then the sole and exclusive remedy of Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against any of the Company or the Company Related Parties for any breach, loss or damage in connection with this Agreement, any other agreement or instrument contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be Parent’s right (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Company Termination Fee, if applicable, plus the Termination Fee Collection Costs, if any, and (iii) to seek recovery of damages incurred or suffered as a result of a Willful and Material Breach of, or Fraud with respect to, any of the Company’s representations, warranties, covenants or other agreements set forth in this Agreement where such Willful and Material Breach or Fraud is the principal cause of a condition contained in Section 6.1 or Section 6.3 to (x) be incapable of being satisfied by the Outside Date or (y) if capable of being satisfied by the Outside Date, to not have been satisfied by the Outside Date, provided, however, that in no event shall the aggregate amount of liabilities and damages recoverable from the Company pursuant to this clause (iii) exceed $108,000,000. In the event that Company Termination Fee is paid to Parent in accordance with Section 7.2(b), then the sole and exclusive remedy of Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against any of the Company or the Company Related Parties for any breach, loss or damage in connection with this Agreement, any other agreement or instrument contemplated hereby, or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination) shall be as set forth in clause (ii) of the immediately preceding sentence. Except as expressly contemplated hereby, the Company (or any other Company Related Party) will not have any other liability or obligation to Parent or any other Parent Related Party relating to or arising out of this Agreement or any other agreement or instrument contemplated hereby, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. Notwithstanding anything to the contrary herein, (x) this Section 7.2(f) shall not relieve the Company from any liability for any breaches of the Confidentiality Agreement and (y) it is agreed and understood that, notwithstanding anything herein to the contrary, Parent shall be entitled, under all circumstances, to pursue claims for both specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as any Company Termination Fee or monetary damages hereunder, but shall not be entitled to receive both an award of monetary damages and the Company Termination Fee.
(g) Notwithstanding anything herein to the contrary, the Company (on behalf of itself and the Company Related Parties) hereby waives any rights or claims against any Debt Financing Source or any affiliate of any Debt Financing Source or any of its or their respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers, employees, agents, advisors or other Representatives, or their respective assignees (collectively, including the Debt Financing Sources, the “Financing Source Related Parties”) in connection with this Agreement, the Debt Financing or the Debt Financing Commitment Letters, whether at law or equity, in contract, in tort or otherwise, and the Company (on behalf of itself and the Company Related Parties) agrees not to commence (and if commenced, agree to dismiss or otherwise terminate) any Proceeding against any Financing Source Related Party in connection with this Agreement, the Debt Financing or the Debt Financing Commitment Letters, other than, for the avoidance of doubt, from and after the Closing Date, under any definitive agreements executed in connection with the Debt Financing (but not, for the avoidance of doubt, under this Agreement) to the extent the Company and/or its affiliates are party thereto. In furtherance and not in limitation of the foregoing waiver, it is agreed that no Financing Source Related Party shall have any liability for any claims, losses, settlements, damages, costs, expenses, fines or penalties to the Company or the Company Related Parties in connection with this Agreement or the transactions contemplated by this Agreement, other than, for the avoidance of doubt, from and after the Closing Date, under any definitive agreements executed in connection with the Debt Financing (iibut not, for the avoidance of doubt, under this Agreement) Buyer’s receipt of to the extent the Company Termination Feeand/or its affiliates are party thereto. Notwithstanding the foregoing, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement nothing in this Agreement Section 7.2 shall in any way limit or modify the failure rights and obligations of Parent (or its permitted assignee) under the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this AgreementDebt Financing Commitment Letters.
Appears in 1 contract
Samples: Merger Agreement (Tenneco Inc)
Termination Fees and Expenses. (a) If The Company agrees that:
(i) In the event this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d9.01(d)(i) or Section 9.01(d)(ii) or by the Company pursuant to Section 9.01(c)(iii), the Company shall pay the Termination Fee to Parent or its designee, but in any event no later than two (2) Business Days after the date of such termination, by wire transfer of same day funds to one or more accounts designated by Parent or its designee;
(ii) In the event that (x) this Agreement is terminated by either Parent or the Company pursuant to Section 9.01(b)(i) or Section 9.01(b)(iii), and (y) after the date of this Agreement and within twelve (12) months of the termination of this Agreement, a Competing Transaction is consummated (provided that for purposes of this Section 9.03(a)(ii), all references to “20%” in the definition of “Competing Transaction” shall be deemed to be references to “50%”), then the Company shall shall, on the date such Competing Transaction is consummated, pay the Termination Fee to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) Parent or its designee by wire transfer of same-same day funds within two business days following to one or more accounts designated by Parent or its designee;
(iii) For the date avoidance of such termination of this Agreementdoubt, in no event shall the Company be obligated to pay, or cause to be paid, the Termination Fee on more than one occasion.
(b) If Parent agrees that in the event that this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(c)(i) or Section 9.01(c)(ii), then the Company Parent shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within promptly, but in any event no later than two business days following (2) Business Days after the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) pay or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed cause to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer paid to the Company pursuant to or its designees the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Parent Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided (it being understood that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company Parent be required to pay the Company Parent Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee).
(jc) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, The Company and Parent acknowledge that (i) the Company’s receipt agreements contained in this Section 9.03 are an integral part of the Buyer Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Termination Fee or Nonclearance Parent Termination FeeFee is payable are uncertain and incapable of accurate calculation and therefore, as applicable, the amounts payable pursuant to Section 8.03(d), 8.03(e), 8.03(f) 9.03 are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Parent or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without the agreements contained in this Section 9.03, the parties would not have entered into this Agreement. In the event that any party shall fail to Section 8.03(a)pay the Termination Fee or Parent Termination Fee when due, Section 8.03(b)and, Section 8.03(c) in order to obtain the payment, Parent or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, as the case may be, commences an Action which results in a judgment against the other party for such payment, such paying party shall pay the other party its Subsidiaries reasonably documented costs and any expenses (including reasonable legal fees and expenses) in connection with such Action, together with interest on such amount at the annual rate of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of five percent (5%) plus the foregoing (together, prime rate as published in the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement Wall Street Journal in this Agreement or effect on the failure of the Offer date such payment was required to be consummated, and upon made through the date such payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementis actually received.
Appears in 1 contract
Samples: Merger Agreement (SKY-MOBI LTD)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d9.01(e), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Sponsor the Company Termination Fee”) Fee by wire transfer of same-day funds within two (2) business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(f), then the Company shall pay to Buyer the Sponsor the Company Termination Fee by wire transfer of same-day funds within two business days following funds, concurrently with, and as a condition to the date of effectiveness of, such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition a Takeover Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreementwithdrawn, (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b9.01(b)(i), (B) by Parent or the Company pursuant to Section 9.01(b)(iii), or (BC) by Buyer Parent pursuant to Section 8.01(h9.01(c) (unless the termination fee provided in Section 9.03(e) has already been paid pursuant to the terms thereof), and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Takeover Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Takeover Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Sponsor the Company Termination Fee (less the amount of expenses paid pursuant to Section 9.03(f)) by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c9.03(c), the term “Acquisition ‘‘Takeover Proposal” shall have the meaning assigned to such term in Section 1.016.02(a), except that all references to 2520% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g9.01(d) due to a Knowing and Material Breach breach by Parent of any of its representations or warranties or the failure by Parent to perform any of its covenants or agreements set forth in this Agreement by Buyer Agreement, which breach or Parentfailure to perform is the principal factor in the failure of the Offer or the Merger to be consummated, (ii) all Offer Conditions (other than the conditions specified in clauses (iiSection 9.01(g) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the ClosingSection 9.01(h), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parenteach case, then Buyer Parent shall pay to the Company the Nonclearance Parent Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two (2) business days following the date of termination of this Agreement).
(e) If this Agreement is terminated by Parent pursuant to Section 9.01(c) due to a breach by the Company of any of its representations or warranties or the failure by the Company to perform any of its covenants or agreements set forth in this Agreement, which breach or failure to perform is the principal factor in the failure of the Offer or the Merger to be consummated, then the Company shall pay a termination fee to Sponsor in an amount equal to $175,000,000 by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two (2) business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by Parent or the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable9.01(b)(iii), then Buyer shall pay to the Company shall reimburse Parent for all documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources (including commitment fees), experts, consultants and the Buyer Termination Fee costs of all filing fees and printing costs) incurred by Sponsor, Parent or its Affiliates in connection with this Agreement or the transactions contemplated hereby by payment to Sponsor of the amount thereof by wire transfer of same-same day funds as promptly as reasonably practicable (and, in any event, within two (2) business days following request therefor); provided, however, that the date maximum aggregate amount of termination of this Agreement)fees and expenses for which the Company shall be required to reimburse Sponsor is $15,000,000.
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure Each of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” Parent acknowledges and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided agrees that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary agreements contained in this Agreement or otherwise, (i) the Company’s receipt Section 9.03 are an integral part of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of that, without these agreements, neither the Company Termination Feenor Parent would have entered into this Agreement; accordingly, if the Company or Parent, as the case may be, fails promptly to pay the fee or reimbursement amount due pursuant to Section 8.03(a)9.03, Section 8.03(b)and, Section 8.03(c) in order to obtain such payment, Parent or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent Company commences arbitration that results in an award against the Companyother party for such fee, the Company or Parent, as the case may be, shall pay to the other party its Subsidiaries costs and any of their respective formerexpenses (including attorneys’ fees and expenses) in connection with such arbitration, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any together with interest on the amount of the foregoing (together, applicable fee from the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer date such payment was required 52 to be consummated, and upon made until the date of payment of at the prime lending rate as published in The Wall Street Journal in effect on the date such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating payment was required to or arising out of this Agreement or the transactions contemplated by this Agreementbe made.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d9.01(e) or is terminated by the Company pursuant to Section 9.01(b)(iii) at a time when the termination of this Agreement by Parent is permitted pursuant to Section 9.01(e), then the Company shall pay to Buyer a sum of US$12,500,000 Sponsor (or any other Person designated by Parent in writing) the “Company Termination Fee”) Fee by wire transfer of same-day funds within two business days (2) Business Days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f9.01(f), then the Company shall pay to Buyer Sponsor (or any other Person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds within two business days following funds, concurrently with, and as a condition to the date of effectiveness of, such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreementpublicly withdrawn, (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b9.01(b)(i) (other than in the event such termination requires Parent to pay the Company the Parent Termination Fee pursuant to the terms hereof), (B) by Parent or the Company pursuant to Section 9.01(b)(iii), or (BC) by Buyer Parent pursuant to Section 8.01(h9.01(c) due to a breach by the Company of any of its representations, warranties, covenants or agreements set forth in this Agreement, and (iii) within 12 months after of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal is consummated (regardless of when made), then, in any such case, the Company shall pay to Buyer the Sponsor (or any other Person designated by Parent in writing) the Company Termination Fee (less the amount of the payment previously paid pursuant to Section 9.03(e)) by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c9.03(c), all references to “15%” in the term definition of “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).”
(d) If this Agreement is terminated by the Company or Buyer pursuant to (i) Section 8.01(e9.01(d) due to a breach by Parent or Sub of its representations or warranties or the failure by Parent or Sub to perform any of its covenants or agreements set forth in this Agreement, which breach or failure to perform has caused the failure of the Offer or the Merger to be consummated, (ii) Section 9.01(g) or (iii) Section 9.01(h), then Buyer Parent shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Parent Termination Fee”) Fee by wire transfer of same-same day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days) following the date of termination of this Agreement).
(e) If (i) after the date of this Agreement, an Acquisition Proposal shall have become publicly known and not publicly withdrawn and (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.01(g9.01(b)(i) (other than in the event such termination requires Parent to pay the Company the Parent Termination Fee pursuant to the terms hereof), or (B) by Parent pursuant to Section 9.01(c) due to a Knowing breach by the Company of any of its representations, warranties, covenants or agreements set forth in this Agreement, then the Company shall, as compensation for the substantial amount of fees and Material Breach of expenses incurred by Sponsor, Parent, Sub and their Affiliates in connection with this Agreement and the transactions contemplated hereby, pay Merger Sub the amount of $1,500,000 by Buyer or Parent, wire transfer of same day funds within two (ii2) Business Days following any such termination pursuant to this Section 9.03(e).
(f) If (i) (A) all the Offer Conditions shall have been satisfied or waived as of the expiration of the Offer (other than (x) the conditions specified in clauses Financing Proceeds Condition and (iiy) the delivery of the certificate contemplated by the fifth to last paragraph of Annex I which, by its terms, may only be delivered as of the Offer Closing, but only so long as it is capable of being satisfied as of the Offer Closing) or (iiiB) all of the first paragraph of Annex Iconditions set forth in Section 8.01 (other than Section 8.01(d), to the extent the Offer Termination has occurred) and Section 8.02 shall have been satisfied (or, with respect to certificates other than those conditions that by their terms are to be delivered satisfied by actions taken at the Closing pursuant to Annex IMerger Closing, are each of which is capable of being satisfied upon at the Merger Closing), (iii) the conditions specified in clauses and (ii) (A) Parent and the Company terminate this Agreement pursuant to Section 9.01(a) or (iiiB) of Parent or the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of Company terminate this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of pursuant to Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent9.01(b)(i), then Buyer Parent shall pay to the Company the Nonclearance Parent Termination Fee by wire transfer of same-same day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days) following the date of any such termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure Each of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” Parent acknowledges and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided agrees that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary agreements contained in this Agreement or otherwise, (i) the Company’s receipt Section 9.03 are an integral part of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of that, without these agreements, neither the Company Termination Feenor Parent would have entered into this Agreement; accordingly, if the Company or Parent, as the case may be, fails promptly to pay the fee or reimbursement amount due pursuant to Section 8.03(a)9.03, Section 8.03(b)and, Section 8.03(c) in order to obtain such payment, Parent or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent Company commences an Action that results in an award against the Companyother Party for such fee or reimbursement, the Company or Parent, as the case may be, shall pay to the other Party its Subsidiaries costs and any of their respective formerexpenses (including reasonable attorneys’ fees and expenses) in connection with such Action, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any together with interest on the amount of the foregoing (together, applicable fee or reimbursement from the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer date such payment was required to be consummated, and upon made until the date of payment of at the prime lending rate as published in The Wall Street Journal in effect on the date such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating payment was required to or arising out of this Agreement or the transactions contemplated by this Agreementbe made.
Appears in 1 contract
Samples: Merger Agreement (Talbots Inc)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer Parent pursuant to Section 8.01(d8.01(e), then the Company shall pay or cause to Buyer a sum of US$12,500,000 (be paid to Parent the “Company Termination Fee”) , by wire transfer (to an account designated by Parent) of same-day immediately available funds within two business days (2) Business Days following the date of any such termination of this Agreementby Parent.
(b) If the Company terminates this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay or cause to Buyer be paid to Parent the Company Termination Fee Fee, by wire transfer (to an account designated by Parent) of same-day funds within two business days following the date of immediately available funds, immediately before or concurrently with such termination of this Agreementtermination.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If If: (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.01(g8.01(b)(i), Section 8.01(b)(iii) due or, prior to the receipt of the Company Stockholder Approval, by Parent pursuant to Section 8.01(c)(ii) in respect of a Knowing material breach of Section 5.02 and Material Breach (ii) (A) at any time after the date of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied and prior to such termination (or, in the case of a termination pursuant to Section 8.01(b)(iii), prior to the Vote Date), an Acquisition Proposal shall have been publicly announced or publicly made known to the stockholders of the Company and not publicly withdrawn, and (B) within twelve (12) months after such termination, the Company shall have entered into a definitive agreement with respect to certificates to be delivered at any Acquisition Proposal or any Acquisition Proposal shall have been consummated (in each case, whether or not such Acquisition Proposal (or the Closing pursuant to Annex I, are capable of being satisfied upon person making such Acquisition Proposal) is the Closingsame as the original Acquisition Proposal (or person making the original Acquisition Proposal) publicly made known or publicly announced), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (andthen, in any such event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay or cause to Buyer be paid to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) of same-day immediately available funds as promptly as reasonably practicable (and, in any event, within two business days following prior to or on the date of termination the Company consummates such Acquisition Proposal; provided that for purposes of this Agreementclause (B) the references to“25%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”; provided, however that clause (c) in the definition of “Acquisition Proposal” shall be disregarded in all respects for purposes of this clause (B).
(hd) If this Agreement is terminated by Each of Parent and the Company acknowledges and agrees that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither the Company nor Parent would have entered into this Agreement; accordingly, if the Company fails promptly to pay or Buyer cause to be paid the fee due pursuant to this Section 8.01(b8.03, and, in order to obtain such payment, Parent makes a claim against the Company that results in a judgment against the Company, the Company shall pay or cause to be paid to Parent its costs and expenses (including attorneys’ fees and expenses) or Section 8.01(c)(ii)in connection with such claim, or by Buyer pursuant together with interest on the amount of the applicable fee from the date such payment was required to Section 8.01(c)(i), and be made until the date of payment at the time of prime lending rate as published in The Wall Street Journal in effect on the date such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only payment was required to be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealablemade.
(ie) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and The Parties agree that in no event shall (1) the Company be required to pay or cause to be paid the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(jf) Subject to Section 9.09 but notwithstanding Notwithstanding anything else to the contrary set forth in this Agreement or otherwiseAgreement, (i) the Company’s receipt in any circumstance in which Parent receives payment of the Buyer Company Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to this Section 8.03(d)8.03, 8.03(e)the Company Termination Fee shall, 8.03(f) or 8.03(h) shall be subject to the last sentence of Section 8.02, constitute the sole and exclusive remedy of Parent, Silk USA and Merger Sub against the Company, any of its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) Company Related Party for any loss all losses and damages suffered as a result of any breach of any representationthis Agreement, warranty, covenant or agreement in this Agreement or the failure of the Offer transactions contemplated by this Agreement to be consummatedconsummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, neither the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none Company nor any of Buyer, Parent its Subsidiaries or any Buyer Representative Company Related Party shall have any further liability or obligation to Parent, Silk USA, Merger Sub or any Parent Related Party relating to or arising out of this Agreement or Agreement, the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) hereby or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents in respect of any other document, theory of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant law or agreement in this Agreement equity or the failure of the Offer oral representations made or alleged to be consummatedmade in connection herewith or therewith, and upon payment of such amountsin contract, none of the Company, its Subsidiaries in tort or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementotherwise.
Appears in 1 contract
Samples: Merger Agreement (Harman International Industries Inc /De/)
Termination Fees and Expenses. (a) If this Agreement is terminated (i) by Buyer Parent pursuant to Section 8.01(d8.01(e) or (ii) by Parent or the Company pursuant to Section 8.01(b)(iii) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.01(e), then then, in each case, the Company shall pay to Buyer a sum of US$12,500,000 (Parent the “Tier I Company Termination Fee”) Fee by wire transfer of same-day funds within two business days (2) Business Days following the date of such termination of termination; provided, however, with respect to clause (i) above, if the Company shall have approved an Acquisition Proposal with a Qualified Pre-Existing Bidder and shall have terminated this AgreementAgreement and entered into an Acquisition Agreement with such Qualified Pre-Existing Bidder prior to the Pre-Existing Bid End Date, then the Company shall pay to Parent the Tier II Company Termination Fee in lieu of, and not in addition to, the Tier I Company Termination Fee.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), to accept a Superior Proposal, (i) on or before the Pre-Existing Bid End Date, from any Qualified Pre-Existing Bidder, then the Company shall pay Parent the Tier II Company Termination Fee or (ii) (A) on or after the date hereof, from any person (other than a Qualified Pre-Existing Bidder) or (B) after the Pre-Existing Bid End Date, from a Qualified Pre-Existing Bidder, then the Company shall pay Parent the Tier I Company Termination Fee, in each case by wire transfer of same-day funds, concurrently with, and as a condition to Buyer the effectiveness of, such termination.
(c) If (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.01(b)(i) or Section 8.01(b)(iii) or (B) by Parent pursuant to Section 8.01(c), and (ii) (A) at any time after the date hereof and prior to such termination, an Acquisition Proposal shall have been made or communicated to the senior management of the Company or the Company Board or shall have been publicly announced or publicly made known to the shareholders of the Company, and (B) within nine (9) months after such termination, the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal which is later consummated, or, within 12 months after such termination, any Acquisition Proposal shall have been consummated (in each case, whether or not such Acquisition Proposal is the same as the original Acquisition Proposal made, communicated, publicly made known or publicly announced), then, in any such event, the Company shall pay to Parent the Tier I Company Termination Fee by wire transfer of same-day funds within two business days (2) Business Days following the date of the Company consummates such termination Acquisition Proposal; provided that for purposes of this Agreementclause (B) the references to “25%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”.
(cd) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated pursuant to Section 8.01 (Aother than (i) by Buyer Parent or the Company pursuant to Section 8.01(b8.01(a), (ii) by Parent pursuant to Section 8.01(c) or Section 8.01(e), (iii) by Parent or the Company pursuant to Section 8.01(b)(iii) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.01(e), or (Biv) by Buyer the Company pursuant to Section 8.01(h8.01(f)) and (iii) within 12 months after such terminationa Willful Breach by Parent or Merger Sub is the primary cause of the failure of the Closing to occur, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company then Parent shall pay to Buyer the Company the Parent Termination Fee by wire transfer of same-day funds on within two (2) Business Days following the date of such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)termination.
(de) If this Agreement is terminated (i) by Parent or the Company or Buyer pursuant to Section 8.01(e)8.01(b)(ii) and the primary cause therefor is a final and non-appealable Order relating to Antitrust Law, then Buyer shall pay to (ii) by Parent or the Company a sum of US$30,000,000 (a “Buyer Fee” pursuant to Section 8.01(b)(i) and the “Buyer Termination Fee”primary cause therefor is the failure of any Regulatory Condition (other than the CFIUS Condition) by wire transfer of same-day funds as promptly as reasonably practicable to be satisfied or (and, in any event, within two business days following the date of termination of this Agreement).
(eiii) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g8.01(d) due to a Knowing and Material Breach the primary cause therefor or result thereof is the failure of this Agreement by Buyer or Parent, (ii) all Offer Conditions any Regulatory Condition (other than the conditions specified in clauses (iiCFIUS Condition) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex Isatisfied, are capable of being satisfied upon the Closing)then, (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parenteach case, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer Parent shall pay to the Company the Nonclearance Parent Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days following the date of such termination; provided, however, that in the case of each of clauses (ii) and (iii) above, Parent shall not be obligated to pay the Parent Termination Fee if (A) Parent has waived any unsatisfied Regulatory Condition (other than U.S. Antitrust Laws) and (B) the Company has declined to waive such Regulatory Condition (other than U.S. Antitrust Laws) after receiving Parent’s request for such waiver; and provided further, that, in the case of each of clauses (i), (ii) and (iii) above, it shall not be a defense to a finding of “primary cause” that there may be another cause for termination arising from circumstances that would also give rise to the payment of this Agreement)a Parent Termination Fee.
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable), then Buyer Parent shall pay to the Company the Buyer Parent Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days (2) Business Days following the date of termination of this Agreement)such termination.
(g) If Each of the Company and Parent acknowledges and agrees that the agreements contained in this Agreement is terminated Section 8.03 are an integral part of the transactions contemplated by Buyer this Agreement, and that, without these agreements, neither the Company nor Parent would have entered into this Agreement; accordingly, if the Company or Parent, as the case may be, fails promptly to pay the fee due pursuant to this Section 8.01(h) due 8.03, and, in order to a Knowing and Material Breach of this Agreement by the Companyobtain such payment, then Parent or the Company makes a claim against the other party that results in a judgment against such other party, the Company or Parent, as the case may be, shall pay to Buyer the Company Termination Fee by wire transfer other party its costs and expenses (including attorneys’ fees and expenses) in connection with such claim, together with interest on the amount of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the applicable fee from the date such payment was required to be made until the date of termination of this Agreement)payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances The Parties agree that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1i) the Company be required to pay the Tier I Company Termination Fee or Tier II Company Termination Fee on more than one occasion; occasion or (2ii) Buyer Parent be required to pay a Buyer the Parent Termination Fee on more than one occasion; or (3) Buyer be required to pay both . Each of the Buyer Parties hereto acknowledges that neither the Tier I Company Termination Fee, Tier II Company Termination Fee nor the Parent Termination Fee is a penalty, but rather are liquidated damages in a reasonable amount that will compensate Parent and the Nonclearance Termination FeeCompany, respectively, in the circumstances in which such fee is due and payable and which do not involve Willful Breach, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision.
(ji) Subject to Section 9.09 but notwithstanding Notwithstanding anything else to the contrary set forth in this Agreement Agreement, except in the case of fraud or otherwiseWillful Breach by Parent or Merger Sub, (i) in any circumstance in which the Company’s receipt Company receives payment of the Buyer Parent Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d8.03(e) or Section 8.03(f), 8.03(e)the Parent Termination Fee shall, 8.03(f) or 8.03(h) shall be subject to Section 8.02 and Section 10.10, constitute the sole and exclusive remedy of the Company, any of its SubsidiariesSubsidiaries or any Company Related Party against Parent, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent Merger Sub and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) Parent Related Party for any loss all losses and damages suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer transactions contemplated by this Agreement to be consummatedconsummated or for a breach or failure to perform hereunder or otherwise arising out of, or directly or indirectly relating to, this Agreement, the Financing Agreements, the negotiation, execution or performance hereof or thereof or the transactions contemplated hereby or thereby, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyersuch amount, none of BuyerParent, Parent Merger Sub or any Buyer Representative Parent Related Party shall have any further liability or obligation to the Company, any of its Subsidiaries or any Company Related Party relating to or arising out of this Agreement Agreement, the Financing Agreements, the transactions contemplated hereby or thereby or in respect of any other document, theory of law or equity or oral representations made or alleged to be made in connection herewith or therewith, in contract, in tort or otherwise. Except as expressly provided in the immediately preceding sentence, following the payment of the Parent Termination Fee (A) none of the Company, any of its Subsidiaries or any Company Related Party shall be entitled to bring, maintain or support any Legal Proceedings against Parent, Merger Sub or any Parent Related Party arising out of or in connection with this Agreement, the Financing Agreements, the negotiation, execution or performance hereof or thereof or the transactions contemplated by hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and (B) the Company shall use its reasonable best efforts to cause any Legal Proceedings pending in connection with this Agreement, and the Financing Agreements, the negotiation, execution or performance hereof or thereof or the transactions contemplated hereby or thereby, to the extent maintained by the Company, any of its Subsidiaries or any Company Related Party against Parent, Merger Sub or any Parent Related Party to be dismissed with prejudice promptly.
(iij) Buyer’s receipt Notwithstanding anything to the contrary set forth in this Agreement, in any circumstance in which Parent receives payment of the Company Termination Fee, as the case may be, Fee pursuant to pursuant to Section 8.03(a), Section 8.03(b), or Section 8.03(c) or ), the Company Termination Fee shall, subject to Section 8.03(g) shall be 8.02 and Section 10.10, constitute the sole and exclusive remedy of Buyer Parent and Parent Merger Sub against the Company, any of its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) Related Party for any loss all losses and damages suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer transactions contemplated by this Agreement to be consummatedconsummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amountsamount, none neither the Company nor any of the Company, its Subsidiaries or any Company Representatives Related Party shall have any further liability or obligation to Parent, Merger Sub or any Parent Related Party relating to or arising out of this Agreement or Agreement, the transactions contemplated by this Agreementhereby or in respect of any other document, theory of law or equity or oral representations made or alleged to be made in connection herewith or therewith, in contract, in tort or otherwise.
Appears in 1 contract
Termination Fees and Expenses. (a) If In addition to any other amounts which may be payable pursuant to any other paragraph of this Section 7.3, the Company shall, following the termination of this Agreement pursuant to Section 7.1(e) promptly, but in no event later than one business day following written notice thereof, together with reasonable supporting documentation, reimburse Parent, for all out-of-pocket expenses and fees (including fees payable to all counsel, accountants, financial advisors, financial printers, experts and consultants), whether incurred prior to, concurrently with or after the execution of this Agreement, in connection with the Merger and the consummation of all transactions contemplated by this Agreement (collectively, the "Expenses").
(b) In the event that this Agreement is terminated by Buyer Parent pursuant to Section 8.01(dSections 7.1(e), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) Parent by wire transfer of same-immediately available funds to an account designated by Parent on the next business day funds within two business days following the date of such termination of this Agreement.
an amount equal to $1,500,000 (b) If this Agreement is terminated by the Company pursuant to Section 8.01(f"Termination Fee"), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If all of the following events have occurred:
(i) a Transaction Proposal is publicly disclosed, publicly proposed or otherwise communicated to the Company at any time on or after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of hereof, and either (A) Parent or the Company terminates this Agreement, Agreement pursuant to Sections 7.1(c) or 7.1(d) or (B) Parent terminates this Agreement pursuant to Section 7.1(f)(ii); and
(ii) thereafter, this Agreement is terminated (A) by Buyer or within 18 months of the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after date of such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition with respect to, or consummates, such Transaction Proposal (regardless or any other Transaction Proposal commenced in response to and during the pendency of when madea Transaction Proposal noted in subpart (i) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when madeabove), ; then, in any such case, the Company shall in the event not already paid pay to Buyer Parent an amount equal to the Company Termination Fee by wire transfer and Expenses concurrently with the earlier of same-day funds on the date execution of such transaction is consummateddefinitive agreement or the consummation of such Transaction Proposal. Solely for purposes of this Section 8.03(c), In the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except event that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If subpart (i) this Agreement above is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parentnot applicable, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i)enters into a definitive agreement with respect to, the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii)consummates, any Governmental Authority shall have issued an orderTransaction Proposal, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance then no Termination Fee or monetary damages Expenses shall be payable by the Company, Buyer or Company to Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Igo Corp)
Termination Fees and Expenses. (a) If The Company shall promptly pay a break-up fee to Parent in the amount of $500,000 plus all of Parent's documented reasonable out-of-pocket expenses incurred in connection with this Agreement is terminated by Buyer pursuant to Section 8.01(dand the transactions contemplated hereby, including, without limitation, Parent's due diligence examination of the Company and its business, assets and operations (collectively, the "TERMINATION FEE"), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following of written demand by Parent if:
(i) Parent terminates this Agreement pursuant to Section 8.1(d), other than for a Company Triggering Event set forth in Section 8.1(f)(iii); or
(ii) (A) Parent terminates this Agreement pursuant to Section 8.1(b), (B) the date Company shall have received a proposal for an Alternate Acquisition, and such proposal shall not have been withdrawn prior to the Termination Date and (C) within twelve (12) months of such termination of this Agreement, the Company enters into or consummates a transaction involving an Alternate Acquisition with any third party other than Parent or any of its Affiliates.
(b) If In the event the Company terminates this Agreement is terminated by the Company pursuant to Section 8.01(f8.1(e), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds Parent will promptly (i.e., within two business days following of written demand) pay to the date Company all of such termination of the Company's documented reasonable out-of-pocket expenses incurred in connection with this AgreementAgreement and the transactions contemplated hereby.
(c) If (i) after In the date of event Parent terminates this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B8.1(d) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the because of a Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term Triggering Event set forth in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c8.1(f)(iii), the Company Termination Fee shall not be payable if will promptly pay to Parent (i.e., within two business days of written demand) all of Parent's documented reasonable out-of-pocket expenses incurred in connection with this Agreement and the Nonclearance Termination Fee is payable by Buyer to transactions contemplated hereby, including, without limitation, Parent's due diligence examination of the Company pursuant to the terms of Section 8.03(h)and its business, assets and operations.
(d) If this Agreement is terminated by In the event the Company or Buyer pays to Parent the Termination Fee pursuant to this Section 8.01(e)8.3, then Buyer such payment shall pay to constitute Parent's sole and exclusive remedy unless the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) payment of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee was occasioned by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a Parent's termination of this Agreement pursuant to because of a Company Triggering Event defined in Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c8.1(f)(iv) or Section 8.03(g8.1(f)(v) under circumstances where such termination right of Parent was occasioned by an intentional act or omission by the Company (in which case Parent shall also be entitled to any and all remedies available at law or in equity, and the same shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementcumulative).
Appears in 1 contract
Samples: Merger Agreement (Illumina Inc)
Termination Fees and Expenses. (a) If In the event that (i) this Agreement is terminated by Buyer Vivendi pursuant to Section 8.01(d8.1(e), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”ii) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company Activision pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
8.1(f) or (ciii) If (iA) after the date of this Agreement but prior to the date of termination of this AgreementActivision Stockholder Meeting, an Activision Acquisition Proposal shall have been made directly to the stockholders of Activision generally and not withdrawn or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make an Activision Acquisition Proposal, (B) after any of the events referenced in the preceding clause (A), this Agreement is terminated by either Vivendi or Activision pursuant to Section 8.1(b)(i) or 8.1(b)(iv), and (C) within twelve (12) months after such termination, Activision enters into a definitive Contract to consummate, or consummates, a transaction constituting an Activision Acquisition Proposal (whether or not withdrawn such Activision Acquisition Proposal is the transaction contemplated by the Activision Acquisition Proposal referenced in the preceding clause (A)), then Activision shall (1) pay Vivendi a fee equal to $180,000,000 (the “Termination Fee”) and (2) reimburse Vivendi for all of Vivendi’s, VGAC LLC’s and Games’ actual and reasonably documented out-of-pocket expenses (including reasonable attorneys’ fees) actually incurred by Vivendi, VGAC LLC and Games on or prior to the termination of this Agreement, (ii) thereafter, Agreement in connection with this Agreement is terminated (A) by Buyer or and the Company pursuant transactions contemplated not to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), thenexceed $15,000,000, in any such each case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the first business day following (x) in the case of a payment required by clause (i) or (ii) above, the date such transaction is consummated. Solely for purposes of termination of this Section 8.03(c)Agreement and (y) in the case of a payment required by clause (iii) above, the term “Acquisition Proposal” shall date of the first to occur of the events referred to in clause (iii)(C); provided, however, in event that the Termination Fee and expenses become payable to Vivendi pursuant to clause (iii) above, then that the amount of expenses, if any, for which Vivendi may have the meaning assigned been reimbursed previously pursuant to such term in Section 1.01, except that all references to 25% therein 8.3(b) below shall be deemed to be references to 50%; provided that notwithstanding anything to credited against the contrary in payment of the expenses by Activision under this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h8.3(a).
(db) If In the event that this Agreement is terminated by the Company or Buyer Vivendi pursuant to Section 8.01(e8.1(c) (provided, that the conditions to Closing set forth in Sections 7.1 (other than Section 7.1(f)) and 7.3 have been satisfied or are capable of being satisfied as of the date such termination), then Buyer Activision shall promptly pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) Vivendi by wire transfer of same-day funds as promptly as an aggregate amount equal to Vivendi’s, VGAC LLC’s and Games’ actual and reasonably practicable documented out-of-pocket expenses (andincluding reasonable attorneys’ fees) actually incurred by Vivendi, in any event, within two business days following VGAC LLC and Games on or prior to the date of termination of this Agreement)Agreement in connection with this Agreement and the transactions contemplated not to exceed $15,000,000.
(ec) If (i) In the event that this Agreement is terminated by the Company Activision pursuant to Section 8.01(g8.1(d) due to a Knowing and Material Breach of this Agreement by Buyer or Parent(provided, (ii) all Offer Conditions (other than that the conditions specified to Closing set forth in clauses (ii) or (iii) of the first paragraph of Annex I) Sections 7.1 and 7.2 have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, or are capable of being satisfied upon as of the Closingdate such termination), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer Vivendi shall promptly pay to the Company the Nonclearance Termination Fee Activision by wire transfer of same-day funds as promptly as an aggregate amount equal to Activision’s and Merger Sub’s actual and reasonably practicable documented out-of-pocket expenses (and, in any event, within two business days following the date of termination of this Agreement).
(fincluding reasonable attorneys’ fees) If this Agreement is terminated actually incurred by the Company pursuant to Section 8.01(g) due to a Knowing Activision and Material Breach by Buyer Merger Sub on or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay prior to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant in connection with this Agreement and the transactions contemplated not to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealableexceed $15,000,000.
(id) No Company Termination FeeThe Parties hereto acknowledge and agree that the agreements contained in Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, Buyer Termination Feewithout these agreements, Nonclearance Termination Fee or monetary damages shall be payable by none of the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) Parties would have entered into this Agreement. Payment of the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary expenses described in this Agreement or otherwiseSection 8.3 shall not be in lieu of damages incurred in the event of a breach of Section 6.3 of this Agreement, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be but is otherwise the sole and exclusive remedy of the Companyparties for termination on the bases specified in Sections 8.3(a), its Subsidiaries, 8.3(b) and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, 8.3(c). If either Activision or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination FeeVivendi, as the case may be, fails promptly to pay the amount due pursuant to this Section 8.03(a8.3 (when and if payable), Section 8.03(b)and, Section 8.03(c) in order to obtain such payment, Vivendi or Section 8.03(g) shall be Activision, as the sole and exclusive remedy of Buyer and Parent case may be, commences a suit which results in a judgment against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any other party for the payment of the foregoing (together, the “Company Representatives”) for any loss suffered Termination Fee and/or expenses as a result of any breach of any representation, warranty, covenant or agreement set forth in this Agreement Section 8.3, Vivendi or Activision, as the failure of case may be, shall pay to the Offer to be consummated, other party its costs and upon payment of expenses (including attorneys’ fees and expenses) in connection with such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementsuit.
Appears in 1 contract
Samples: Business Combination Agreement (Activision Inc /Ny)
Termination Fees and Expenses. (a) If Notwithstanding the provisions of SECTION 8.6 hereof, if this Agreement is validly terminated by Buyer pursuant to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination SECTION 7.1 of this Agreement, Acquiror shall reimburse Acquiree Bank its reasonable fees and expenses incurred by it in connection with this Agreement and the transactions contemplated hereby in an amount not to exceed $90,000 in the aggregate, subject to the following:
(i) Acquiree Bank shall furnish Acquiror with reasonable documentation in support of its request for reimbursement of fees and expenses at the time such request is made hereunder; and
(ii) Acquiror shall have no obligation to reimburse Acquiree Bank for its fees and expenses as contemplated by this SECTION 7.2 if this Agreement is validly terminated (i) by Acquiror pursuant to SECTION 7.1(E) hereof, or (ii) by Acquiree Bank or Acquiror pursuant to SECTION 7.1(H) hereof.
(b) If Notwithstanding the provisions of SECTION 7.2(A) hereof, if this Agreement is validly terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company Acquiror pursuant to Section 8.01(b), or (BSECTION 7.1(E) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered hereof as a result of Acquiree Bank's willful or intentional breach, in any breach material respect, of any representation, warranty, covenant its representations or agreement in this Agreement warranties or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of Acquiree Bank's willful or intentional failure to perform, in any breach material respect, any of any representation, warranty, covenant its covenants or agreement other agreements contained in this Agreement Agreement, or the failure (ii) by Acquiree Bank or Acquiror pursuant to SECTION 7.1(H) hereof, Acquiree Bank shall pay Acquiror a termination fee of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement$125,000.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d)a Company Payment Event occurs, then the Company shall pay to Buyer a Parent (by wire transfer of immediately available funds) simultaneously with the occurrence of such Company Payment Event, the sum of US$12,500,000 (i) a fee equal to $3,100,000 (the “Company Termination Fee”) by wire transfer of sameand (ii), unless previously paid, Parent’s reasonable out-day funds within two business days following of-pocket expenses incurred since January 15, 2012 not to exceed $2,000,000 (the date of such termination of this Agreement“Parent Expenses”).
(b) If this Agreement is terminated by the Company or Parent pursuant to Section 8.01(f10.01(b)(i), by the Company or Parent pursuant to Section 10.01(b)(iii) or by Parent pursuant to Section 10.01(c)(iii), then the Company shall pay to Buyer the Company Termination Fee Parent (by wire transfer of same-day funds within two business days following immediately available funds) simultaneously with the date occurrence of such termination event the Parent Expenses; provided, however, that Parent shall in no event be entitled to the Parent Expenses under this Section 10.03(b) if this Agreement is terminated pursuant to Section 10.01(b)(i) due to failure of this Agreementthe conditions set forth in Sections 9.01(b) or (c) to have been satisfied on or prior to the End Date.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreementa Parent Payment Event occurs, an Acquisition Proposal Parent shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or pay the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of sameimmediately available funds) simultaneously with the occurrence of such Parent Payment Event, the sum of (i) a fee equal to $3,100,000 (the “Financing Termination Fee”) and (ii), unless previously paid, the Company’s reasonable out-day funds on of-pocket expenses incurred since January 15, 2012 not to exceed $2,000,000 (the date such transaction is consummated. Solely for purposes of “Company Expenses”).
(d) The Company acknowledges that the agreements contained in this Section 8.03(c)10.03 are an integral part of the transactions contemplated by this Agreement and that, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01without these agreements, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding Parent and Merger Subsidiary would not enter into this Agreement. Notwithstanding anything to the contrary in this Section 8.03(c)Agreement, the Company acknowledges and agrees on behalf of itself and its Affiliates that (i) neither the Termination Fee shall not be payable if nor the Nonclearance Parent Expenses are a penalty, but rather constitute liquidated damages in a reasonable amount to compensate Parent and Merger Subsidiary (in the circumstances in which the Termination Fee is payable by Buyer and/or Parent Expenses are payable) for the efforts and resources expended and opportunity forgone while negotiating this Agreement, which amount would otherwise be impossible to calculate with precision, and (ii) in the event that the Financing Termination Fee and the Company Expenses become payable and are paid by Parent pursuant to this Section 10.03, the terms right to receive the Financing Termination Fee and Company Expenses shall constitute each of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum Company’s and each of US$30,000,000 (a “Buyer Fee” its Affiliates’ and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement)Representatives’ sole and exclusive remedy.
(e) If Parent and Merger Subsidiary acknowledge that the agreements contained in this Section 10.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Company would not enter into this Agreement. Notwithstanding anything to the contrary in this Agreement, each of Parent and Merger Subsidiary acknowledges and agrees on behalf of itself and its Affiliates that (i) neither the Financing Termination Fee nor the Company Expenses are a penalty, but rather constitute liquidated damages in a reasonable amount to compensate the Company (in the circumstances in which the Financing Termination Fee and/or the Company Expenses are payable) for the efforts and resources expended and opportunity forgone while negotiating this Agreement is terminated Agreement, which amount would otherwise be impossible to calculate with precision, and (ii) in the event that the Termination Fee and Parent Expenses become payable and are paid by the Company pursuant to this Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in10.03, the failure right to satisfy any of receive the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the CompanyParent Expenses shall constitute each of Parent’s receipt and Merger Subsidiary’s and each of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the their Affiliates’ and Representatives’ sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementremedy.
Appears in 1 contract
Samples: Merger Agreement
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the The Company shall pay or cause to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant be paid to Section 8.01(f), then the Company shall pay to Buyer Parent the Company Termination Fee by wire transfer if any of same-day funds within two business days the following the date of such termination of this Agreement.occur:
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g7.1(d) due (Superior Proposal);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(e) (Change in Recommendation; Acquisition Proposal); or
(iii) (A)(1) either Parent or the Company terminates this Agreement pursuant to Section 7.1(b) (Outside Date) or Section 7.1(c) (Outside Date), respectively, (2) either Parent or the Company terminates this Agreement pursuant to Section 7.1(f) (Requisite Company Stockholder Approval), or (3) Parent terminates this Agreement pursuant to Section 7.1(h) (Company Breach) following a Knowing and Material Breach material breach by the Company of Section 5.3, 5.4 or 5.5 (or this Agreement is terminated pursuant to another provision at a time that it is terminable pursuant to any of the foregoing provisions), (B) a bona fide Acquisition Proposal (provided, for purposes of this clause (iii), all references to “25%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) by a Third Party or group of Third Parties has been publicly disclosed (or, in the case of a termination pursuant to clause (A)(1) or (A)(3), made known to the Company Board or the Company Special Committee) after the date of this Agreement by Buyer or Parentand has not been publicly and irrevocably withdrawn at least four Business Days prior to (1) the Outside Date (in the case of clause (A)(1)), (ii2) all Offer Conditions the Company Meeting (other than in the conditions specified in clauses case of clause (iiA)(2)) or (iii3) the applicable breach (in the case of clause (A)(3)) and (C) within twelve (12) months after such termination, the first paragraph of Annex ICompany and/or its Subsidiaries (x) have been satisfied consummate any Acquisition Proposal or (or, y) enter into an agreement with respect to certificates to any Acquisition Proposal.
(b) Any Company Termination Fee due under this Section 7.2 shall be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay paid to the Company the Nonclearance Termination Fee appropriate party by wire transfer of same-day funds as promptly as reasonably practicable on the second (and, in any event, within two business days 2nd) Business Day immediately following the date of termination of this Agreement).
(f) If this Agreement is terminated by the , except that any Company Termination Fee payable pursuant to Section 8.01(g7.2(a)(i) due to a Knowing shall be paid concurrently with such termination and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Company Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer payable pursuant to Section 8.01(h7.2(a)(iii) due shall be paid concurrently with consummation of or entry into an agreement with respect to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay Acquisition Proposal referred to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (ivC) of Annex I hereto thereof (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances it being understood that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee), in each case, in accordance with wire instructions for such payment provided by Parent.
(jc) Subject The parties hereto acknowledge that (i) the agreements contained in this Section 7.2 are an integral part of the Transactions, and that without these agreements, the parties would not enter into this Agreement, and (ii) the Company Termination Fee, if, as and when required to be paid pursuant to this Section 7.2, shall not constitute a penalty but, subject to Section 9.09 7.3, will be liquidated damages, in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. Accordingly, if the Company fails to promptly pay the amounts due pursuant to this Section 7.2 and, in order to obtain such payment, Parent commences a suit that results in a judgment against Parent for any amounts due pursuant to this Section 7.2, the Company shall pay to Parent its and its affiliates’ out-of-pocket, documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee, cost or expense was required to be paid to (but notwithstanding excluding) the payment date (collectively, “Termination Fee Collection Costs”).
(d) Notwithstanding anything else to the contrary in this Agreement or otherwiseAgreement, each of the parties hereto expressly acknowledges and agrees that the Company’s right to (i) terminate this Agreement, (ii) seek a damages award against Parent and Merger Sub solely in accordance with the Company’s receipt provisions of, and subject to the limitations in, this Agreement (including the Parent Liability Limitation) and the Guaranties, or (iii) seek specific performance of the Buyer Termination Fee or Nonclearance Termination Feeobligations of Parent and Merger Sub under this Agreement (and of the Guarantors under their respective Equity Commitment Letters) solely in accordance with, as applicableand subject to the limitations in, pursuant to this Agreement (including Section 8.03(d), 8.03(e), 8.03(f9.11) or 8.03(h) and the Equity Commitment Letters shall be constitute the sole and exclusive remedy remedy, whether at law, in equity, in contract, in tort or otherwise, of the Company, its Subsidiariesaffiliates, any of its and its affiliates’ respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers and employees, and their respective assignees (collectively, the “Company Related Parties”), and under no circumstances will the collective Liability of Parent, Merger Sub and the Guarantors for any breach, loss or damage under this Agreement (including a Willful and Material Breach) or the Equity Commitment Letters or the Guaranties, or otherwise relating to or arising out of this Agreement, the Equity Commitment Letters, the Guaranties or the Transactions (including in respect of any written or oral representation made or alleged to be made in connection therewith), the termination of this Agreement (or any matter forming the basis for such termination), the failure to consummate the Merger or any claims or actions under applicable Law arising out of any such breach, termination or failure (whether in contract or in tort, in Law or in equity or otherwise) exceed an amount equal to $31.9 million (the “Parent Liability Limitation”). In no event will the Company Related Parties be entitled to seek or obtain any monetary remedy of any kind (i) in excess of the Parent Liability Limitation or (ii) against any Guarantor, any affiliate of any Guarantor or of Parent or Merger Sub, any of the respective direct or indirect current, former or future clients, shareholders, equity holders, partners, members, officers, directors, officersmanagers and employees of any of the foregoing, employeesand their respective assignees (collectively, advisors and representatives against Buyerthe “Parent Related Parties”) for, or with respect to, this Agreement, the Equity Commitment Letters, the Guaranties or the Transactions (including any breach by the Guarantors, Parent and any or Merger Sub), the termination of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents this Agreement (or any formermatter forming the basis for such termination), current the failure to consummate the Transactions or future general any claims or limited partnersactions under applicable Law arising out of any such breach, stockholderstermination or failure and none of the Company Related Parties shall seek any other remedy, controlling personswhether based on a claim at law or in equity, managersin contract, memberstort or otherwise, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of with respect to any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result including in respect of any breach written or oral representation made or alleged to be made in connection herewith), other than, in the case of any representationthis clause (ii), warranty, covenant claims permitted against the Guarantors pursuant the Guaranties or agreement the Equity Commitment Letters as expressly set forth therein. Other than the obligations of the Guarantors expressly set forth in the Guaranties and the Equity Commitment Letters and other than the obligations of Parent and Merger Sub expressly set forth in this Agreement Agreement, in no event will Parent, Merger Sub, any Parent Related Party or any other Person other than the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of BuyerGuarantors, Parent or any Buyer Representative shall and Merger Sub have any further liability or obligation to the Company or any other Person relating to or arising out of this Agreement or the transactions contemplated by Transactions (including in respect of any written or oral representation made or alleged to be made in connection herewith). For the avoidance of doubt, while the Company may plead in the alternative to pursue specific performance of Parent and Merger Sub’s obligation to consummate the Merger solely in accordance with, and subject to the limitations in, this Agreement (including Section 9.11) and the Equity Commitment Letters or a monetary damages award solely in accordance with, and subject to the limitations in, this Agreement (including this Section 7.2(d)) and the Guaranties, in no event will (A) the Company or any Company Related Party be entitled to receive such monetary damages award if the Company or any Company Related Party has received a grant of specific performance or any other equitable remedy pursuant to Section 9.11 that specifically enforces Parent’s and Merger Sub’s obligation to consummate the Merger or any Guarantor to fund any amount under any Equity Commitment Letter or (B) the Company or any Company Related Party be entitled a grant of specific performance or any other equitable remedy, whether pursuant to Section 9.11 or otherwise, following any award of monetary damages in accordance with this Agreement.
(e) Subject to Section 7.3, and (ii) Buyer’s receipt of in the event the Company Termination Fee, as the case may be, pursuant Fee is paid to Parent in accordance with Section 8.03(a7.2(a), Section 8.03(b), Section 8.03(c) or Section 8.03(gthen the payment thereof (and any Termination Fee Collection Costs) shall be the sole and exclusive remedy of Buyer Parent and the Parent Related Parties, whether at law, in equity, in contract, in tort or otherwise, against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, Company or the “Company Representatives”) Related Parties for any breach, loss suffered as a result of any breach of any representationor damage under this Agreement, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation otherwise relating to or arising out of this Agreement or the transactions contemplated by Transactions (and the termination of this AgreementAgreement or any matter forming the basis for such termination) and the Company (or any other Company Related Party) will not have any other liability or obligation to Parent or any other Parent Related Party relating to or arising out of this Agreement or the Transactions (including in respect of any written or oral representation made or alleged to be made in connection herewith). Notwithstanding anything to the contrary herein, (i) this Section 7.2(e) shall not relieve the Company or its affiliates from any liability for any breaches of the Governance Agreement or the Registration Rights Agreement and (ii) it is agreed and understood that, notwithstanding anything herein to the contrary, in addition to any other remedies Parent may have hereunder (including without limitation claims for damages), Parent shall be entitled, under all circumstances, to pursue claims for both specific performance or other injunctive or equitable relief under Section 9.11 (Specific Performance) as well as any Company Termination Fee hereunder.
Appears in 1 contract
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.)
Termination Fees and Expenses. (a) If Except as set forth in this Section 7.5, all Expenses incurred in connection with this Agreement is terminated and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.13. For purposes of this Agreement, “Expenses” consist of all out-of-pocket expenses (including all fees, commitment fees and expenses of counsel, accountants, commercial and investment bankers, lenders, experts and consultants to a party hereto and its affiliates) incurred by Buyer a party or on its behalf to the extent directly related to the authorization, preparation, negotiation, execution and performance of this Agreement, the Shareholder Agreements, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of shareholder approvals and all other matters related to the closing of the transactions contemplated hereby.
(b) The Company agrees that, if
(i) the Company shall terminate this Agreement pursuant to Section 8.01(d7.1(h);
(ii) Parent shall terminate this Agreement pursuant to Section 7.1(d), or Section 7.1(i);
(iii) (A) the Company or Parent shall terminate this Agreement pursuant to Section 7.1(e) or Section 7.1(b), and (B) at the time of such termination, any person shall have made a public announcement or otherwise communicated to the Company and its shareholders with respect to a Takeover Proposal with respect to the Company, and (C) within twelve (12) months after such termination, any definitive agreement providing for a Takeover Proposal shall have been executed or a Takeover Proposal (which need not be the same Takeover Proposal made prior to termination) consummated by any person; or
(iv) Parent shall terminate this Agreement pursuant to Section 7.1(f) and within twelve (12) months after such termination, any definitive agreement providing for a Takeover Proposal shall have been executed or a Takeover Proposal shall be consummated by any person; then in accordance with Section 7.5(c), concurrently with such termination in the case of clause (i), within two (2) business days after such termination in the case of clause (ii), or in the case of clause (iii) or (iv) within two (2) business days after the execution of a definitive agreement providing for, or the consummation of, such Takeover Proposal, whichever shall first occur, the Company shall pay to Buyer Parent a sum termination fee in the amount of US$12,500,000 $3,000,000 in cash (subject to the provisions below)(such fee, the “Company Termination FeeAmount”), plus an amount equal to Parent’s and Merger Sub’s and their affiliates’ documented Expenses (as defined) by wire transfer of same-day funds within two business days following the date up to an aggregate amount of such termination Expenses of this Agreement.
(b) If $250,000; provided, however, if this Agreement is terminated by the Company pursuant to Section 8.01(f7.1(f) as a result of a Pre-Closing Breach (as defined), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds (x) within two (2) business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into shall pay an amount equal to Parent’s and Merger Sub’s and their affiliates’ documented Expenses up to an aggregate amount of such Expenses of $1,500,000 (the “Increased Expenses”) and (y) the “Termination Amount” thereunder payable under Section 7.5(b)(iv) shall mean $3,250,000 minus the Increased Expenses: provided, further, however, that if this Agreement is terminated pursuant to Section 7.1(f) other than as a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless result of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such casea Pre-Closing Breach, the Company “Termination Amount” thereunder payable under Section 7.5(b)(iv) shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummatedmean $1,250,000. Solely for For purposes of this Section 8.03(c7.5(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.,
Appears in 1 contract
Termination Fees and Expenses. (a) If this Engility terminates the Merger Agreement is terminated by Buyer pursuant to Section 8.01(d), then the fifth bullet point under “Termination Prior to Effective Time” or (ii) if (x) DRC or Engility terminates the Merger Agreement pursuant to the second bullet point under “Termination Prior to Effective Time” and (y) (A) prior to such termination DRC shall have made an Adverse Company Recommendation Change or an Acquisition Proposal shall pay have been publicly disclosed or otherwise communicated to Buyer a sum of US$12,500,000 DRC’s shareholders and not withdrawn and (the “Company Termination Fee”B) by wire transfer of same-day funds within two business days twelve (12) months following the date of such termination, DRC shall have entered into a definitive agreement with respect to or recommended to its shareholders an Acquisition Proposal with the same party who made the Acquisition Proposal prior to such termination of this Agreement.
(b) If this Agreement is terminated by or an Acquisition Proposal with such party shall have been consummated, in which case the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer shall be paid contemporaneously with the entering into or consummation of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreementa definitive agreement for, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement(provided, (ii) thereafterhowever, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely that for purposes of this Section 8.03(cclause (ii), each reference to “15%” in the term “definition of Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein Proposal shall be deemed to be references a reference to 50“50.1%; provided that notwithstanding anything to the contrary in this Section 8.03(c”), or (iii) if DRC terminates the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company Merger Agreement pursuant to the terms of Section 8.03(h).
sixth bullet under “Termination Prior to Effective Time”, then DRC will pay Engility (d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(eits designee), then Buyer shall pay to a fee in the Company a sum amount of US$30,000,000 $3,030,250 (a “Buyer Fee” and the “Buyer Termination Fee”) payable in cash by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day immediately available funds to an account designated in writing by Engility. If the Merger Agreement is terminated pursuant to Buyer by (A) the Company at least fourth bullet point under “Termination Prior to Effective Time” (but only if the breach or failure of performance that caused such termination is willful), (B) the fifth bullet point under “Termination Prior to Effective Time”, or (C) the sixth bullet point under “Termination Prior to Effective Time”, then DRC shall pay Engility, without limiting any of the other obligations or liabilities of DRC under the Merger Agreement, an amount equal to all of the documented out of pocket expenses (the “Termination Expenses”) of Engility within two (2) business days after delivery to Engility of an itemization setting forth in reasonable detail all such terminationreimbursable expenses; provided that the Nonclearance Termination Fee aggregate payments by DRC for such expenses shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required not exceed $600,000. If DRC fails to pay the Company Termination Fee when due, (a) such fee shall accrue interest for the period commencing on more than one occasion; or the date such fee became past due through the date such fee is actually paid, at a rate equal to the “prime rate” as published from time to time by The Wall Street Journal, Eastern Edition, at large U.S. money center banks during the period from the date that payment is due to the date of payment plus two percent (2%) Buyer be required and (b) DRC, shall also pay to pay a Buyer Fee on more than one occasion; or Engility all of Engility’s reasonable costs and expenses (3including reasonable attorneys’ fees) Buyer be required in connection with all actions to pay both collect the Buyer past due fee. If Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwiseexpenses reimbursement become payable, (i) the CompanyDRC’s receipt payment of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) and expenses reimbursement shall be together constitute the sole and exclusive remedy of Engility and Purchaser for damages under the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Merger Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as except in the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) of fraud or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreementwillful breach.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Parent shall pay to the Company the Reverse Termination Fee if any of the following occur:
(i) This Agreement is terminated by Buyer the Company pursuant to Section 8.01(d), then 7.1(h) (Parent Breach) with respect to a breach or failure to perform that is the Company shall pay principal cause of the failure of the Closing to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.be consummated; or
(bii) If this Agreement is terminated by the Company pursuant to Section 8.01(f7.1(i) (Failure to Close When Required), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.; or
(ciii) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b), or 7.1(b) (BOutside Date) by Buyer and at the time of such termination the Company would have been entitled to terminate this Agreement pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made7.1(h) (which transaction Parent Breach) with respect to a breach or failure to perform that is thereafter consummatedthe principal cause of the failure of the Closing to be consummated or Section 7.1(i) or consummates any Acquisition Proposal (regardless of when madeFailure to Close When Required), then, in any such case, the .
(b) The Company shall pay or cause to Buyer be paid to Parent (or its designee) the Company Termination Fee by wire transfer of same-day funds on (minus the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable Parent Expense Reimbursement Amount if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated previously paid by the Company to Parent (or Buyer its designee) pursuant to Section 8.01(e7.2(c), then Buyer shall pay to ) if any of the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).occur:
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g7.1(c) due (Superior Proposal);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d) (Change in Recommendation); or
(iii) (A) either Parent or the Company terminates this Agreement pursuant to Section 7.1(b) (Outside Date) or Section 7.1(e) (Requisite Company Stockholder Approval), or Parent terminates this Agreement pursuant to Section 7.1(g) (Company Breach) (or this Agreement is terminated pursuant to another provision at a Knowing and Material Breach time that it is terminable pursuant to any of the foregoing provisions), (B) a bona fide Acquisition Proposal (provided, for purposes of this clause (iii), all references to “20%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) has been publicly disclosed or (in the case of termination pursuant to Section 7.1(b) (Outside Date) or Section 7.1(g) (Company Breach)) made known to the Company Board after the date of this Agreement by Buyer or Parent, and has not been publicly withdrawn at least four (ii4) all Offer Conditions (other than Business Days prior to the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied Outside Date (or, with respect to certificates to be delivered at in the Closing case of termination pursuant to Annex I, are capable of being satisfied upon the ClosingSection 7.1(e), (iii) the conditions specified in clauses (ii) or (iii) date of the first paragraph Company Meeting, or in the case of Annex I have been satisfied or would have been satisfied but for termination pursuant to Section 7.1(g), the Knowing and Material Breach date of Section 7.01 of this Agreement by Buyer or Parentthe applicable breach), and (ivC) within twelve (12) months after such termination, the financing provided for by Company and/or its Subsidiaries enter into a definitive agreement with respect to, or consummate, any Acquisition Proposal.
(c) If either Parent or the Debt Financing Commitments Company terminates this Agreement pursuant to Section 7.1(e) (Requisite Company Stockholder Approval), then the Company shall pay Parent (or any Alternative Financingits designee) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach equal to $6,325,000.00 in respect of Section 5.05 or Section 7.08 of expenses in connection with this Agreement by Buyer (the “Parent Expense Reimbursement Amount”).
(d) Any Reverse Termination Fee, Company Termination Fee or Parent, then Buyer Parent Expense Reimbursement Amount due under this Section 7.2 shall pay be paid to the Company the Nonclearance Termination Fee appropriate party (or its designee) by wire transfer of same-day funds as promptly as reasonably practicable on the second (and, in any event, within two business days 2nd) Business Day immediately following the date of termination of this Agreement).
(f) If this Agreement is terminated by the , except that any Company Termination Fee payable pursuant to Section 8.01(g7.2(b)(i) due to a Knowing shall be paid concurrently with such termination and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Company Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer payable pursuant to Section 8.01(h7.2(b)(iii) due shall be paid concurrently with consummation of or entry into a definitive agreement with respect to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay Acquisition Proposal referred to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (ivC) of Annex I hereto Section 7.2(b)(iii) (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances it being understood that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1i) Parent be required to pay the Reverse Termination Fee on more than one occasion or (ii) the Company be required to pay the Company Termination Fee or the Parent Expense Reimbursement Amount on more than one occasion).
(e) The parties hereto acknowledge that (i) the agreements contained in this Section 7.2 are an integral part of the Transactions, and that without these agreements, the parties would not enter into this Agreement, and (ii) each of the Reverse Termination Fee, Company Termination Fee and the Parent Expense Reimbursement Amount, as applicable, if, as and when required to be paid pursuant to this Section 7.2, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. Accordingly, (i) if Parent fails to promptly pay the Reverse Termination Fee when due pursuant to this Section 7.2 and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the Reverse Termination Fee pursuant to this Section 7.2, Parent shall pay to the Company its and its affiliates’ out-of-pocket, documented costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee, cost or expense was required to be paid to (but excluding) the payment date (collectively, whether in relation to the Reverse Termination Fee pursuant to this clause (i) or the Company Termination Fee or the Parent Expense Reimbursement amount pursuant to clause (ii), “Termination Fee Collection Costs”) and (ii) if the Company fails to promptly pay the Company Termination Fee or the Parent Expense Reimbursement Amount when due pursuant to this Section 7.2 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Company Termination Fee or the Parent Expense Reimbursement Amount pursuant to this Section 7.2, the Company shall pay or cause to be paid to Parent (or its designee) its and its affiliates’ Termination Fee Collection Costs; or (2) Buyer provided that in no event shall any party be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination FeeCollection Costs in an aggregate amount exceeding $2,000,000.00.
(jf) Subject Notwithstanding anything to the contrary in this Agreement, the sole and exclusive remedies, whether at law, in equity, in contract, in tort or otherwise, of the Company, its affiliates and each of its and its affiliates’ respective direct or indirect current, former or future stockholders, partners, members, officers, directors, managers, employees and other Representatives, and their respective assignees (collectively, the “Company Related Parties”) and any other Person against any of Parent, Merger Sub, any Guarantor, any Debt Financing Entity, any of their respective affiliates, any of their and their affiliates’ respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers, employees and other Representatives, and their respective assignees (collectively, the “Parent Related Parties”) for any breach (whether willful (including a Willful and Material Breach), intentional, unintentional or otherwise), loss, Liability or damage in connection with, relating to or arising out of (A) this Agreement, the Transaction Documents or any of the other agreements, instruments, and documents contemplated hereby or thereby or executed in connection herewith or therewith and the Transactions and the transactions contemplated thereby, (B) the Transactions, (C) the negotiation, execution or performance or non-performance of any of the foregoing, (D) the failure of the Closing to occur (including the funding of the Financing and, in any case, whether willfully, intentionally, unintentionally or otherwise), or the termination of any Transaction Document or any matter forming the basis for such termination, (E) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement, the Transaction Documents or any certificate or other document delivered herewith or therewith or executed in connection herewith or therewith or (F) any oral or written representation made or alleged to have been made in connection herewith or therewith (collectively, the “Transaction Claims”), shall be the Company’s rights (i) to specific performance if and to the extent permitted by Section 9.09 but notwithstanding 9.11 (Specific Performance) and the Equity Commitment Letter, (ii) to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Reverse Termination Fee, if applicable, plus, if applicable, the Termination Fee Collection Costs, if any, plus receipt of expense reimbursement and indemnity payments, if any, under the final sentence of Section 5.16(b) and the final sentence of Section 5.15(g) (up to an aggregate amount for both such sentences not to exceed $1,000,000.00) (such expense reimbursement and indemnity payments, as so limited to such aggregate amount, collectively, the “Reimbursement Obligations”), in each case, in accordance with this Agreement and the Guaranty, or (iii) to seek recovery of damages incurred or suffered as a result of Parent’s fraud or Willful and Material Breach of any of Parent’s representations, warranties, covenants or other agreements set forth in this Agreement (up to an aggregate amount not to exceed $87,300,000.00), plus receipt of the Reimbursement Obligations, if any, in each case, in accordance with this Agreement and the Guaranty, and, in the case of each of the foregoing clauses (i) through (iii), Parent will not (nor will any other Parent Related Party) have any other Liability to the Company or any other Company Related Party in connection with, relating to or arising out of any of the Transaction Claims. For the avoidance of doubt, in the event that the Reverse Termination Fee is paid to the Company in accordance with Section 7.2(a), then the only other remedies, whether at law, in equity, in contract, in tort or otherwise, of the Company and the Company Related Parties against Parent or the Parent Related Parties for any breach (whether willful (including a Willful and Material Breach), intentional, unintentional or otherwise), loss, Liability or damage in connection with, relating to or arising out of any of the Transaction Claims shall be to receive the Termination Fee Collection Costs, if any, plus receipt of the Reimbursement Obligations, if any. Notwithstanding anything else to the contrary in this Agreement or otherwisethe Transaction Documents, (i) but subject to the Company’s receipt right to obtain specific performance of the Buyer type referred to in, and if permitted by, Section 9.11(c), the maximum aggregate Liability, whether at law, in equity, in contract, in tort or otherwise, of the Parent Related Parties collectively (including in respect of the Reverse Termination Fee and any reimbursement, indemnity or Nonclearance Termination Feeother payment in connection with any Transaction Document or otherwise, as applicableand monetary damages for fraud or breach, pursuant to Section 8.03(dwhether willful (including Willful Breach), 8.03(e)intentional, 8.03(funintentional or otherwise) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of any of the Transaction Claims, will not exceed under any circumstances an amount equal to $87,300,000.00, plus the Termination Fee Collection Costs, if any, plus the Reimbursement Obligations, if any; provided that this Agreement or Section 7.2(f) shall not relieve Apollo Management Holdings, L.P. from any Liability for any breaches of the transactions contemplated by Confidentiality Agreement.
(g) Notwithstanding anything to the contrary in this Agreement, the sole and exclusive remedies, whether at law, in equity, in contract, in tort or otherwise, of Parent and the Parent Related Parties against the Company and the Company Related Parties for any breach (whether willful (including a Willful and Material Breach), intentional, unintentional or otherwise), loss, Liability or damage in connection with, relating to or arising out of the Transaction Claims, shall be Parent’s rights (i) to specific performance if and to the extent permitted by Section 9.11 (Specific Performance), (ii) Buyer’s receipt to terminate this Agreement in accordance with and subject to the terms of Section 7.1 and receive payment of the Company Termination Fee, as if applicable, plus, if applicable, the case may beTermination Fee Collection Costs, pursuant to Section 8.03(a)if any, Section 8.03(b)in each case, Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, currentin accordance with this Agreement, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, (iii) to seek recovery of damages incurred or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach the Company’s fraud or Willful and Material Breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company’s representations, its Subsidiaries warranties, covenants or other agreements set forth in this Agreement, in each case, in accordance with this Agreement, and, in the case of each of the foregoing clauses (i) through (iii), the Company will not (nor will any other Company Related Party) have any other Liability to Parent or any Company Representatives shall have any further liability or obligation other Parent Related Party in connection with, relating to or arising out of any of the Transaction Claims. For the avoidance of doubt, in the event the Company Termination Fee is paid to Parent in accordance with Section 7.2(b), then the only other remedy, whether at law, in equity, in contract, in tort or otherwise, of Parent and the Parent Related Parties against the Company or the Company Related Parties for any breach (whether willful (including a Willful and Material Breach), intentional, unintentional or otherwise), loss, Liability or damage in connection with, relating to or arising out of any of the Transaction Claims shall be to receive the Termination Fee Collection Costs, if any. Notwithstanding anything to the contrary in this Agreement or the transactions contemplated by Transaction Documents, the maximum aggregate Liability, whether at law, in equity, in contract, in tort or otherwise, of the Company Related Parties collectively (including monetary damages for fraud or breach, whether willful (including Willful Breach), intentional, unintentional or otherwise) relating to or arising out of any of the Transaction Claims, will not exceed under any circumstances an amount equal to $87,300,000.00, plus the Termination Fee Collection Costs, if any; provided that this Section 7.2(g) shall not relieve the Company from any Liability for any breaches of the Confidentiality Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If All costs and expenses incurred in connection with this Agreement and the consummation of the Transactions shall be paid by the party incurring such expenses. Without limitation, the expenses of preparing, duplicating and disseminating the Offer Documents shall be borne by the Purchaser, and the expenses of preparing, duplicating and disseminating the Schedule 14D-9 shall be borne by the Company, irrespective of which party disseminates such materials to the Company's stockholders. It is terminated by Buyer understood that all fees and other charges of Kilpatrick Stockton LLP are being incurred for the benefit xx xxx Xxxxxxx.
(b) Notwithstanding anything to the contrary herein, including, without limitation SECTION 7.3(A) herein, if (i) the Company shall enter into an agreement which accepts or implements a Superior Proposal; (ii) the Company shall terminate or abandon the Transactions pursuant to Section 8.01(dSECTION 7.1(C)(II), ; or (iii) Parent shall terminate or abandon the Transactions pursuant to SECTION 7.1(D)(II) (other than for reason of the failure of the condition set forth in paragraph (c)(iv) or (c)(ix) of ANNEX A hereto); then the Company shall pay to Buyer a sum Parent an amount equal to the Termination Fee plus an amount equal to Parent's actual and reasonably documented out-of-pocket fees and expenses (excluding any contingent fees and expenses of US$12,500,000 (financial advisors or brokers) incurred by Parent and Purchaser in connection with the “Company Offer, the Merger, this Agreement and the consummation of the Transactions in an amount not to exceed $600,000. The Termination Fee”) by wire transfer Fee and Parent's good faith estimate of same-its expenses shall be paid in same day funds within two business days following concurrently with the date execution of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant an agreement referred to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If in subsection (i) after the date of this Agreement but prior above or any termination or abandonment referred to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses subsections (ii) or (iii) above, whichever shall first occur, together with delivery of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for a written acknowledgment by the Debt Financing Commitments (or any Alternative Financing) Company of its obligation to reimburse Parent for its actual expenses in an amount no less than US$430,000,000 has been fundedexcess of such estimated expense payment. As promptly as practicable after receipt thereof, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer Parent shall pay deliver to the Company copies of all final invoices and bills related to Parent's and Purchaser's actual reasonable out-of-pocket fees and expenses incurred by them in connection with the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (andOffer, in any eventthe Merger, within two business days following the date of termination of and this Agreement).
(f) . If this Agreement is terminated such fees and expenses as documented in reasonable detail exceed the good faith estimate of fees and expenses paid by the Company pursuant prior to Section 8.01(g) due to a Knowing receipt of such invoices and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Companybills, then the Company shall pay to Buyer reimburse Parent for its actual fees and expenses in excess of such estimated expense payment in accordance with its written acknowledgement of such obligation. If such fees and expenses as documented in reasonable detail are less than the estimate of fees and expenses paid by the Company Termination Fee prior to receipt of the final invoices and bills, then Parent shall reimburse the Company for such excess payment. All payments required to be made hereunder shall be made by wire transfer of same-day immediately available funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both days of the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else event giving rise to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none . Each of Parent and the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out acknowledges that the agreements contained in this SECTION 7.3 are an integral part of this Agreement or the transactions contemplated by herein and that, without said agreements, neither Parent nor the Company would have entered into this Agreement; accordingly, if Company fails promptly to pay the amounts due pursuant to this SECTION 7.3, and, in order to obtain such payment, Parent commences an action that results in a judgment against the Company for failure to make such payments, the Company will pay Parent's reasonable expenses (including attorneys' fees and expenses) in connection with such action, together with interest on the amounts due hereunder at the prime rate of Bank of America in effect on the date the payment was due determined by the court rendering such judgment.
Appears in 1 contract
Samples: Merger Agreement (U S Realtel Inc)
Termination Fees and Expenses. (a) If Except as set forth in this Section 7.5, all Expenses incurred in connection with this Agreement is terminated and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.13. For purposes of this Agreement, "Expenses" consist of all out-of-pocket expenses (including all fees, commitment fees and expenses of counsel, accountants, commercial and investment bankers, lenders, experts and consultants to a party hereto and its affiliates) incurred by Buyer a party or on its behalf to the extent directly related to the authorization, preparation, negotiation, execution and performance of this Agreement, the Shareholder Agreements, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of shareholder approvals and all other matters related to the closing of the transactions contemplated hereby.
(b) The Company agrees that, if
(i) the Company shall terminate this Agreement pursuant to Section 8.01(d7.1(h);
(ii) Parent shall terminate this Agreement pursuant to Section 7.1(d), or Section 7.1(i);
(iii) (A) the Company or Parent shall terminate this Agreement pursuant to Section 7.1(e) or Section 7.1(b), and (B) at the time of such termination, any person shall have made a public announcement or otherwise communicated to the Company and its shareholders with respect to a Takeover Proposal with respect to the Company, and (C) within twelve (12) months after such termination, any definitive agreement providing for a Takeover Proposal shall have been executed or a Takeover Proposal (which need not be the same Takeover Proposal made prior to termination) consummated by any person; or
(iv) Parent shall terminate this Agreement pursuant to Section 7.1(f) and within twelve (12) months after such termination, any definitive agreement providing for a Takeover Proposal shall have been executed or a Takeover Proposal shall be consummated by any person; then in accordance with Section 7.5(c), concurrently with such termination in the case of clause (i), within two (2) business days after such termination in the case of clause (ii), or in the case of clause (iii) or (iv) within two (2) business days after the execution of a definitive agreement providing for, or the consummation of, such Takeover Proposal, whichever shall first occur, the Company shall pay to Buyer Parent a sum termination fee in the amount of US$12,500,000 $3,000,000 in cash (subject to the “Company provisos below) (such fee, the "Termination Fee”Amount"), plus an amount equal to Parent's and Merger Sub's and their affiliates' documented Expenses (as defined) by wire transfer of same-day funds within two business days following the date up to an aggregate amount of such termination Expenses of this Agreement.
(b) If $250,000; provided, however, if this Agreement is terminated by the Company pursuant to Section 8.01(f7.1(f) as a result of a Pre-Closing Breach (as defined), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds (x) within two (2) business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into shall pay an amount equal to Parent's and Merger Sub's and their affiliates' documented Expenses up to an aggregate amount of such Expenses of $1,500,000 (the "Increased Expenses") and (y) the "Termination Amount" thereunder payable under Section 7.5(b)(iv) shall mean $3,250,000 minus the Increased Expenses; provided, further, however, that if this Agreement is terminated pursuant to Section 7.1(f) other than as a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless result of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such casea Pre-Closing Breach, the Company "Termination Amount" thereunder payable under Section 7.5(b)(iv) shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummatedmean $1,250,000. Solely for For purposes of this Section 8.03(c7.5(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.,
Appears in 1 contract
Samples: Merger Agreement (Eppendorf INC)
Termination Fees and Expenses. (a1) If Despite any other provision in this Agreement is terminated by Buyer pursuant relating to Section 8.01(d)the payment of fees and expenses, then including the payment of brokerage fees, if a Termination Fee Event occurs, the Company shall pay to Buyer a sum the Guarantor the Termination Fee in accordance with Section 8.2(3) in consideration for the disposition by the Guarantor of US$12,500,000 its rights under this Agreement.
(2) For the purposes of this Agreement, “Company Termination Fee”” means $19,000,000, and “Termination Fee Event” means the termination of this Agreement: (a) by wire transfer the Purchaser, pursuant to Section 7.2(1)(d)(ii) [Change in Recommendation]; (b) by the Company, pursuant to Section 7.2(1)(c)(ii) [Superior Proposal]; (c) pursuant to any Subsection of same-day funds Section 7.2(1) if at such time the Purchaser is entitled to terminate this Agreement pursuant to Section 7.2(1)(d)(ii); or (d) by the Company or the Purchaser pursuant to Section 7.2(1)(b)(i) [Arrangement Resolution Not Approved] or Section 7.2(1)(b)(iii) [Outside Date] or by the Purchaser pursuant to Section 7.2(1)(d)(i) [Breach of Representation or Warranty or Failure to Perform Covenant] due, in the case of a termination by the Purchaser pursuant to Section 7.2(1)(d)(i) [Breach of Representation or Warranty or Failure to Perform Covenant] only, to any wilful breach or fraud by the Company, if prior to such termination: 57 (i) the Purchaser has obtained the SARB Approval; (ii) an Acquisition Proposal has been made to the Company or any of its Subsidiaries or any of their respective Representatives or publicly announced or otherwise publicly disclosed by any Person other than the Purchaser, the Guarantor or any of its affiliates or any Person (other than the Purchaser, the Guarantor or any of its affiliates) has publicly announced an intention to do so, and such Acquisition Proposal has not expired or been publicly withdrawn prior to the Company Meeting; and (iii) within two business 365 days following the date of such termination of this Agreement.
termination, (bA) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and (whether or not withdrawn prior such Acquisition Proposal is the same Acquisition Proposal referred to the termination of this Agreement, in clause (ii) thereafter, this Agreement above) is terminated (A) by Buyer consummated or the Company pursuant to Section 8.01(b)effected, or (B) by Buyer pursuant the Company or one or more of its Subsidiaries, directly or indirectly, in one or more transactions, enters into a contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to Section 8.01(hin clause (ii) above) and such Acquisition Proposal is later consummated or effected (iii) whether or not within 12 months 365 days after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for For purposes of this Section 8.03(c)the foregoing, the term “Acquisition Proposal” when used in this Section 8.2(2)(d) shall have the meaning assigned to such term in Section 1.011.1, except that all references to 25“20% therein or more” shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)% or more”.
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant AISI agrees to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 ESI (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee ESI is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any material breach of any representation, warranty, covenant or agreement contained in this Agreement or Agreement) promptly upon the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out termination of this Agreement (or such later date as may apply in the transactions contemplated case of (iii) below) by wire transfer, the sum of $3 Million in immediately available funds in the event that any of the following shall have occurred:
(i) this Agreement, and Agreement shall have been terminated pursuant to Section 7.2(b) hereof on the basis of failure of approval of the Merger by the AISI shareholders;
(ii) Buyer’s receipt of the Company Termination Fee, as the case may be, this Agreement shall have been terminated pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c7.2(d) or Section 8.03(g7.2(e) hereof; or
(iii) AISI shall be have terminated the sole Agreement pursuant to Section 7.2(f) hereof and exclusive remedy shall have agreed to an Acquisition Transaction which results in a change in the beneficial owners of Buyer and Parent against more than fifty percent (50%) of the Company, its Subsidiaries and voting power of the capital stock of AISI within one year after termination of this Agreement with any person other than ESI or any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, its affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing .
(together, the “Company Representatives”b) for any loss suffered as a result of any ESI agrees to pay AISI (provided that AISI is not then in material breach of any representation, warranty, covenant or agreement contained in this Agreement or Agreement) promptly upon the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out termination of this Agreement by wire transfer, the sum of $3 Million in immediately available funds in the event this Agreement shall have been terminated by ESI (other than pursuant to Section 7.1 and 7.2) and all conditions to the obligations of ESI and Merger Corp. in Sections 5.1 and 5.3 have been fulfilled.
(c) The right to the payment of the fees set forth in this Section 7.3 shall be the exclusive remedy at law or in equity to which ESI or AISI shall be entitled upon termination of this Agreement under the transactions contemplated conditions described in Section 7.3; provided, however, nothing in Sections 7.2 or 7.3 of this Agreement shall be deemed to limit a party's remedies in the event of breach of this Agreement by this Agreementthe other party.
Appears in 1 contract
Samples: Merger Agreement (Electro Scientific Industries Inc)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer The Purchaser shall pay to the Company a sum Seller the Termination Fee if any of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).occur:
(e) If (i) this Agreement is terminated by the Company Purchaser pursuant to Section 8.01(g9.01(b);
(ii) due this Agreement is terminated by the Purchaser pursuant to Section 9.01(c); provided, that the Purchaser shall not be required to pay the Termination Fee if at the time of such termination the condition set forth in Section 2.02(c) shall not have been satisfied;
(iii) this Agreement is terminated by the Seller pursuant to Section 9.01(d); provided that the Purchaser shall not be required to pay the Termination Fee if at the time of such termination the condition set forth in Section 2.02(c) shall not have been satisfied;
(iv) if (A) this Agreement is terminated by the Purchaser or the Seller pursuant to Section 9.01(e), (B) after the date hereof, but prior to the date of the Purchaser Stockholders Meeting, an Acquisition Proposal shall have been made to the Purchaser or directly to its stockholders generally (or shall have otherwise become publicly known or announced (whether or not conditional)) and (C) within twelve (12) months of such termination the Purchaser (or one of its Affiliates) shall have entered into a Knowing and definitive Acquisition Agreement with respect to such Acquisition Proposal (or any other Acquisition Proposal) or such Acquisition Proposal (or any Acquisition Proposal) is consummated; provided, that for purposes of this clause (iv), the references to “25%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(v) this Agreement is terminated by the Seller or the Purchaser pursuant to Section 9.01(f); or
(vi) this Agreement is terminated by the Seller pursuant to Section 9.01(h); provided, that in no event shall the Termination Fee be paid to the Seller in the event that the Seller is in Material Breach of this Agreement by Buyer or Parentwhen this Agreement is terminated; provided further, that prior to any such termination, the Purchaser shall have provided written notice of any such Material Breach to the Seller and the Seller shall have had thirty (ii30) all Offer Conditions Business Days during which to cure such Material Breach (other than and in the conditions specified event that the Termination Date shall otherwise have occurred during such thirty (30) Business Day cure period, the Termination Date shall automatically be extended until the expiration thereof; provided that in clauses (ii) or (iii) of no event shall the first paragraph of Annex I) have been satisfied (or, with respect to certificates to Termination Date be delivered at the Closing extended pursuant to Annex Ithis proviso to a date that is after July 5, are capable of being satisfied upon the Closing2019), .
(iiib) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Any Termination Fee due under this Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will 9.02 shall be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay paid to the Company the Nonclearance Termination Fee Seller by wire transfer of same-day funds as promptly as reasonably practicable (andx) in the case of Section 9.02(a)(i) above, concurrently with the termination of this Agreement, (y) in any eventthe case of Section 9.02(a)(iv), within two business days on the date of the first to occur of the events referred to in clause (C) thereof and (z) otherwise on the Business Day immediately following the date of termination of this Agreement).
Agreement (f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances it being understood that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company Purchaser be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee).
(jc) Subject The Parties acknowledge that the agreements contained in this Section 9.02 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, the Parties would not enter into this Agreement; accordingly, if the Purchaser fails to promptly pay the amounts due pursuant to this Section 9.09 9.02 and, in order to obtain such payment, the Seller commences a suit that results in a judgment against the Purchaser for any amounts due pursuant to this Section 9.02, the Purchaser shall pay to the Seller its out-of-pocket, documented costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A. from the date such fee, cost or expense was required to be paid to (but notwithstanding excluding) the payment date.
(d) Notwithstanding anything else to the contrary in this Agreement or otherwiseAgreement, (i) in the Company’s receipt of event the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant is paid to the Seller in accordance with Section 8.03(d9.02(a), 8.03(e), 8.03(f) or 8.03(h) such payment shall be the sole and exclusive remedy of the Company, Seller (and its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, future, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partnersformer Subsidiaries, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates and Representatives) against the Purchaser (or agents of any of the foregoing (togetherits current, the “Buyer future, or former Subsidiaries, stockholders, and Representatives”) for any loss losses or damages suffered as a result of any breach of any representation, warranty, covenant or agreement made by the Purchaser in this Agreement or in any certificate or other document delivered in connection herewith, except in the failure case of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out a Willful Breach of this Agreement or by the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this AgreementPurchaser.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tenneco Inc)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the Company MDL shall pay to Buyer a sum of US$12,500,000 (TSA the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Alternative Proposal Fee by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).TSA Expenses if:
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(gSubsections 10.1(c) due to a Knowing or 10.1(e) and Material Breach any Business Combination Transaction is thereafter consummated within nine (9) months of this Agreement by Buyer or Parent, such termination;
(ii) all Offer Conditions this Agreement is terminated pursuant to Subsection 10.1(f) as a result of the failure of the MDL Securityholders to approve the Arrangement and a Business Combination Transaction proposal shall have been made prior to such vote, and any Business Combination Transaction is thereafter consummated within nine (other than 9) months of such termination; or
(iii) this Agreement is terminated pursuant to Subsection 10.1(g) as a result of the conditions specified failure of the Court to issue an interim or final order approving this Agreement and the Arrangement and a Business Combination Transaction proposal shall have been made prior to such termination and any Business Combination Transaction is thereafter consummated within nine (9) months of such termination.
(b) MDL shall not be required to pay TSA Expenses in clauses excess of one million dollars (ii$1,000,000.00) pursuant to this Section 11.3.
(c) Payment of the TSA Expenses by MDL to TSA arising pursuant to the terms of Subsection 11.3(a)(i) shall be made prior to termination of this Agreement. Payment of the Alternative Proposal Fee by MDL to TSA arising pursuant to the terms of Subsection 11.3(a)(i) shall be made contemporaneously with the consummation of such Business Combination Transaction. For the sake of clarity, even if a Business Combination Transaction is not consummated within nine (9) months of a termination pursuant to Subsections 10.1(c) or 10.1(e), MDL shall be required to pay the TSA Expenses prior to such termination but shall not be required to pay the Alternative Proposal Fee.
(d) Payment of the Alternative Proposal Fee and the TSA Expenses by MDL to TSA arising pursuant to the terms of Subsection 11.3(a)(ii) or (iii) of shall be made contemporaneously with the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time consummation of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealableBusiness Combination Transaction.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Combination Agreement (Transaction Systems Architects Inc)
Termination Fees and Expenses. (a) If In the event that:
(i) (A) One or more of the conditions set forth in Section 7.1(c) or Section 7.1(d) (in each case solely in respect of an Order of a Governmental Body in the PRC or due to Laws of a Governmental Body in the PRC) has not been satisfied and (B) this Agreement is terminated by Buyer either the Company or Parent pursuant to Section 8.01(d9.2(a), then provided, that the Company shall pay is not then in material breach of the representations, warranties or covenants contained in this Agreement such that Parent would not be obligated to Buyer a sum of US$12,500,000 (close the “Company Termination Fee”transactions contemplated by this Agreement under Section 7.1(a) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.and Section 7.1(b);
(bii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(f9.2(c) (solely in respect of an Order of a Governmental Body in the PRC or due to Laws of a Governmental Body in the PRC), provided that the terminating party is not then in material breach of the representations, warranties or covenants contained in this Agreement such that Company shall pay or Parent would not be obligated to Buyer close the Company Termination Fee transactions contemplated by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.Agreement under Section 7.1(a) and Section 7.1(b) or Section 7.2(a) and Section 7.2(b), as applicable; or
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such case, the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii9.2(e) or (iii) of the first paragraph of Annex I) have been satisfied (orSection 9.2(f), with respect to certificates then Parent shall pay, or cause to be delivered at the Closing pursuant to Annex Ipaid, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company or its designee an amount equal to the Nonclearance Parent Termination Fee (provided, that in the event that the Parent Termination Fee becomes payable pursuant to Section 9.6(a)(i) or Section 9.6(a)(ii), the Parent Termination Fee shall be equal to US$60,000,000) either directly or out of the HK Escrow Account as promptly as possible (but in any event within two (2) Business Days after such termination), by wire transfer of same-day funds as promptly as reasonably practicable (andimmediately available funds; provided, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant that if Parent has paid or caused to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay be paid to the Company or its designee the Buyer Parent Termination Fee by wire transfer of same-day directly, the funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages HK Escrow Account shall be payable by the Company, Buyer simultaneously released and returned to Parent or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in its designee. In no event shall (1) the Company Parent be required to pay the Company Parent Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(jb) Subject In the event that Parent fails to pay the Parent Termination Fee when due and in accordance with the requirements of this Agreement, Parent shall reimburse the Company for costs and expenses actually incurred or accrued by the Company (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.09 but notwithstanding anything else 9.6, together with interest on such unpaid Parent Termination Fee commencing on the date that the Parent Termination Fee became due, at a rate equal to three percent (3%) per annum. Such collection expenses shall not otherwise diminish in any way the contrary in this Agreement or otherwisepayment obligations hereunder.
(c) Each of the Company, Parent and Merger Sub acknowledges that (i) the Company’s receipt agreements contained in this Section 9.6 are an integral part of the Buyer transaction contemplated hereby, (ii) the damages resulting from termination of this Agreement under circumstances where a Parent Termination Fee or Nonclearance Termination Feeis payable are uncertain and incapable of accurate calculation and, as applicabletherefore, the amounts payable pursuant to Section 8.03(d), 8.03(e), 8.03(f9.6(a) or 8.03(h) shall be are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate the sole Company for the efforts and exclusive remedy resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any consummation of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this AgreementMerger, and (iiiii) Buyer’s receipt of without the Company Termination Fee, as the case may be, pursuant to agreements contained in this Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together9.6, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall parties hereto would not have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by entered into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Aleris Corp)
Termination Fees and Expenses. (a) If Parent terminates this Agreement is terminated by Buyer pursuant to Section 8.01(d8.1(c) or (g), then the Company shall promptly pay to Buyer a sum Parent on demand all of US$12,500,000 (Parent's documented out-of-pocket expenses incurred in connection with this Agreement and the “transactions contemplated hereby, including, without limitation, Parent's due diligence examination of the Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreementand its business, assets and customers.
(b) If the Company terminates this Agreement is terminated by the Company pursuant to Section 8.01(f8.1(f), then Parent shall promptly pay to the Company shall pay to Buyer on demand, all of the Company Termination Fee by wire transfer Company's documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, but not in excess of same$500,000, including, without limitation, Company's due diligence examination of Parent, but not including its December 31, 2001 year-day funds within two business days following the date of such termination of this Agreementend audit expenses.
(c) If (iParent terminates this Agreement pursuant to Section 8.1(e) after and the Company closes an Alternative Acquisition or enters into an agreement, arrangement or understanding for an Alternative Acquisition within nine months of the date of this Agreement but prior and such Alternative Acquisition subsequently closes, the Company shall pay a break-up fee to Parent of $2,000,000 (the date "Termination Fee"), plus all of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, Parent's documented out-of-pocket expenses incurred in connection with this Agreement is terminated (A) by Buyer or and the transactions contemplated hereby, including, without limitation, Parent's due diligence examination of the Company and its business, assets and customers, within two business days of the close of an Alternative Acquisition.
(d) If Parent terminates this Agreement pursuant to Section 8.01(b), or (B) by Buyer pursuant to Section 8.01(h8.1(e) and (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for shall have breached any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such caseits obligations under Section 5.2, the Company shall pay to Buyer Parent all of Parent's documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, without limitation, Parent's due diligence examination of the Company Termination Fee by wire transfer of same-day funds on the date such transaction is consummated. Solely for purposes of this Section 8.03(c)and its business, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(e), then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” assets and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any eventcustomers, within two business days following the date of termination of this Agreement).
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph close of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any an Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement)Acquisition.
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Termination Fees and Expenses. (a) If this Agreement is terminated terminated: (i) by Buyer Parent pursuant to Section 8.01(d8.01(e); or (ii) by Parent or the Company pursuant to Section 8.01(b)(iii) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.01(e), then then, in each case, the Company shall pay (or cause to Buyer a sum of US$12,500,000 (be paid) to Parent the “Company Termination Fee”) , by wire transfer (to an account designated by Parent) of same-day immediately available funds within two business days (2) Business Days following the date of any such termination by Parent and prior to or concurrently with any such termination in the case of this Agreementtermination by the Company.
(b) If the Company terminates this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay (or cause to Buyer be paid) to Parent the Company Termination Fee Fee, by wire transfer of same-day funds within two business days following the date of (to an account designated by Parent) in immediately available funds, immediately before or concurrently with such termination of this Agreementtermination.
(c) If If: (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer Parent or the Company pursuant to Section 8.01(b8.01(b)(i) or Section 8.01(b)(iii), or (B) by Buyer Parent pursuant to Section 8.01(h) 8.01(c); and (iiiii) (A) at any time after the date of this Agreement and prior to such termination (or, in the case of a termination pursuant to Section 8.01(b)(iii), prior to the date of such Company Stockholders’ Meeting), an Acquisition Proposal shall have been publicly announced or publicly made known to the stockholders of the Company and not publicly withdrawn, and (B) within 12 twelve (12) months after such termination, the Company enters shall have entered into a definitive agreement providing for any transaction contemplated by with respect to any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) consummated or consummates any Acquisition Proposal shall have been consummated (regardless of when madein each case, whether or not such Acquisition Proposal (or the person making such Acquisition Proposal) is the same as the original Acquisition Proposal made (or person making the original Acquisition Proposal), publicly made known or publicly announced), then, in any such caseevent, the Company shall pay (or cause to Buyer be paid) to Parent the Company Termination Fee by wire transfer (to an account designated by Parent) of same-day immediately available funds prior to or on the date the Company consummates such transaction is consummated. Solely Acquisition Proposal; provided that for purposes of this Section 8.03(c), clause (B) the term references to “15%” in the definition of “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to “50%; provided that notwithstanding anything to the contrary in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h)”.
(d) If this Agreement is terminated by Each of Parent and the Company acknowledges and agrees that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither the Company nor Parent would have entered into this Agreement; accordingly, if the Company fails timely to pay (or Buyer cause to be paid) the fee due pursuant to this Section 8.01(e)8.03, then Buyer shall pay to the Company a sum of US$30,000,000 (a “Buyer Fee” and the “Buyer Termination Fee”) by wire transfer of same-day funds as promptly as reasonably practicable (and, in any eventorder to obtain such payment, within two business days following Parent makes a claim against the Company that results in a judgment against the Company, the Company shall pay (or cause to be paid) to Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such claim, together with interest on the amount of the applicable fee from the date such payment was required to be made until the date of termination of this Agreement)payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.
(e) If (i) this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach of this Agreement by Buyer or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances The Parties agree that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay or (cause to be paid) the Company Termination Fee on more than one occasion; or (2) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(jf) Subject to Section 9.09 but notwithstanding Notwithstanding anything else to the contrary set forth in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt in any circumstance in which Parent receives payment of the Company Termination Fee, as the case may be, Fee pursuant to Section 8.03(a), Section 8.03(b), or Section 8.03(c) ), the Company Termination Fee shall, subject to Section 8.02 and Section 10.09, and except for fraud or Section 8.03(g) shall be Willful Breach, constitute the sole and exclusive remedy of Buyer Parent, Silk USA and Parent Merger Sub against the Company, any of its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) Related Party for any loss all losses and damages suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer transactions contemplated by this Agreement to be consummatedconsummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amountsamount, none neither the Company nor any of the Company, its Subsidiaries or any Company Representatives Related Party shall have any further liability or obligation to Parent, Silk USA, Merger Sub or any Parent Related Party relating to or arising out of this Agreement or Agreement, the transactions contemplated by this Agreementhereby or in respect of any other document, theory of law or equity or oral representations made or alleged to be made in connection herewith or therewith, in contract, in tort or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Emagin Corp)
Termination Fees and Expenses. (a) If this Agreement is terminated by Buyer pursuant to Section 8.01(d), then the Company shall pay to Buyer a sum of US$12,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 8.01(f), then the Company shall pay to Buyer the Company Termination Fee 7.1(d)(ii) hereof or by wire transfer of same-day funds within two business days following the date of such termination of this Agreement.
(c) If (i) after the date of this Agreement but prior to the date of termination of this Agreement, an Acquisition Proposal shall have become publicly known and not withdrawn prior to the termination of this Agreement, (ii) thereafter, this Agreement is terminated (A) by Buyer or the Company BEC pursuant to Section 8.01(b), Sections 7.1(b)(iii) or (Biv) by Buyer pursuant to Section 8.01(hor 7.1(c)(i) and or (iii) within 12 months after such termination, the Company enters into a definitive agreement providing for any transaction contemplated by any Acquisition Proposal (regardless of when made) (which transaction is thereafter consummated) or consummates any Acquisition Proposal (regardless of when made), then, in any such casehereof, the Company shall pay to Buyer the Company Termination Fee BEC promptly (but in no event later than one (1) business day following such termination) by certified check or wire transfer to an account designated by BEC an amount equal to all actual out-of-pocket costs and expenses of same-day funds on BEC up to a maximum of $1,500,000 incurred in connection with this Agreement and the date such transaction is consummated. Solely for purposes of this Section 8.03(c)transactions contemplated hereby, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01including, except that all references to 25% therein without limitation, printing, legal, accounting, investment banking, professional and service fees and expenses ("Expenses") which amount shall be deemed to be references to 50%; provided that notwithstanding anything to the contrary payable in this Section 8.03(c), the Company Termination Fee shall not be payable if the Nonclearance Termination Fee is payable by Buyer to the Company pursuant to the terms of Section 8.03(h).
(d) same day funds. If this Agreement is terminated by the Company or Buyer BEC pursuant to Section 8.01(e)7.1(c)(ii) hereof or by the Company pursuant to Sections 7.1(b)(iii) or (iv) or 7.1(d)(i) or (iii) hereof, then Buyer BEC shall pay to the Company promptly (but in no event later than one (1) business termination) by certified check or wire transfer to an account designated by the Company an amount equal to the Expenses incurred by the Company which shall be payable in same day funds. Upon the occurrence of any event entitling a sum party to payment of US$30,000,000 (a “Buyer Fee” their Expenses, the party requesting Expenses shall promptly provide the other party with invoices or other reasonable evidence of the Expenses upon request, and the “Buyer Termination Fee”) party shall forthwith return any portion of Expenses reimbursed by wire transfer of same-day funds the other party as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement)to which such invoices or other evidence are not received.
(eb) If (i) In addition to the payment of expenses, as provided in Section 7.3(a), if this Agreement is terminated has been terminated: (x) either by the Company pursuant to Section 8.01(g7.1(d)(ii) due hereof or by BEC pursuant to a Knowing and Material Breach of this Agreement by Buyer Sections 7.1(b)(iii) or Parent, (ii) all Offer Conditions (other than the conditions specified in clauses (ii7.1(c)(i) or (iii) of the first paragraph of Annex I) have been satisfied (or, with respect to certificates to be delivered at the Closing pursuant to Annex I, are capable of being satisfied upon the Closing), (iii) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I have been satisfied or would have been satisfied but for the Knowing and Material Breach of Section 7.01 of this Agreement by Buyer or Parent, and (iv) the financing provided for by the Debt Financing Commitments (or any Alternative Financing) in an amount no less than US$430,000,000 has been funded, will be funded at the Closing if the Equity Financing is funded at the Closing, or would have been funded at the Closing but for the Knowing and Material Breach of Section 5.05 or Section 7.08 of this Agreement by Buyer or Parent, then Buyer shall pay to the Company the Nonclearance Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(f) If this Agreement is terminated by the Company pursuant to Section 8.01(g) due to a Knowing and Material Breach by Buyer or Parent in any circumstance where the Nonclearance Termination Fee is not payable, then Buyer shall pay to the Company the Buyer Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(g) If this Agreement is terminated by Buyer pursuant to Section 8.01(h) due to a Knowing and Material Breach of this Agreement by the Company, then the Company shall pay to Buyer the Company Termination Fee by wire transfer of same-day funds as promptly as reasonably practicable (and, in any event, within two business days following the date of termination of this Agreement).
(h) If this Agreement is terminated by the Company or Buyer pursuant to Section 8.01(b) or Section 8.01(c)(ii), or by Buyer pursuant to Section 8.01(c)(i), and at the time of such termination (i) the conditions specified in clauses (ii) or (iii) of the first paragraph of Annex I hereto shall not have been satisfied, (ii) the conditions specified in clause (iv) of Annex I hereto (other than those set forth in clause (iv)(a)(i) and (iv)(a)(iii) and those conditions which by their terms can only be satisfied at the Closing itself but as to which there is no state of facts or circumstances that would reasonably be expected to cause a failure of such conditions as of the Closing) have been satisfied, (iii) there has been no failure of the Company to fulfill its obligations or to comply with its covenants and other agreements under Section 7.01 of this Agreement that has been a significant factor in the cause of, or resulted in, the failure to satisfy any of the conditions set forth in sub-clause (i) of this clause (h), then Buyer shall pay a termination fee equal to US$50,000,000 (a “Buyer Fee” and the “Nonclearance Termination Fee”) on or before the fifth business day following such termination by wire transfer of same day funds to an account designated in writing to Buyer by the Company at least two business days after such termination; provided that the Nonclearance Termination Fee shall only be payable upon a termination of this Agreement pursuant to Section 8.01(c)(i) by Buyer or Section 8.01(c)(ii) by Buyer or the Company to the extent that (A) in the case of termination pursuant to Section 8.01(c)(i), the legal prohibition is based on applicable Antitrust Laws and such prohibition shall have become final and nonappealable or (B) in the case of termination pursuant to Section 8.01(c)(ii), any Governmental Authority shall have issued an order, decree or ruling enjoining or otherwise prohibiting the Offer pursuant to applicable Antitrust Laws, and such order, decree or ruling shall have become final and nonappealable.
(i) No Company Termination Fee, Buyer Termination Fee, Nonclearance Termination Fee or monetary damages shall be payable by the Company, Buyer or Parent, as applicable, other than as explicitly required by Section 8.03(a) through Section 8.03(h) above, and in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasionhereof; or (2y) Buyer be required to pay a Buyer Fee on more than one occasion; or (3) Buyer be required to pay both the Buyer Termination Fee and the Nonclearance Termination Fee.
(j) Subject to Section 9.09 but notwithstanding anything else to the contrary in this Agreement or otherwise, (i) the Company’s receipt of the Buyer Termination Fee or Nonclearance Termination Fee, as applicable, pursuant to Section 8.03(d), 8.03(e), 8.03(f) or 8.03(h) shall be the sole and exclusive remedy of the Company, its Subsidiaries, and their respective shareholders, directors, officers, employees, advisors and representatives against Buyer, Parent and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, Financing Sources or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Buyer Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of the Buyer Termination Fee or the Nonclearance Termination Fee, as applicable, either by Buyer, none of Buyer, Parent or any Buyer Representative shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) Buyer’s receipt of the Company Termination Fee, as the case may be, pursuant to Section 8.03(a), Section 8.03(b), Section 8.03(c) or Section 8.03(g) shall be the sole and exclusive remedy of Buyer and Parent against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates, or agents or any former, current or future general or limited partners, stockholders, controlling persons, managers, members, directors, officers, employees, assignees, subsidiaries, parents, affiliates or agents of any of the foregoing (together, the “Company Representatives”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Offer to be consummated, and upon payment of such amounts, none of the Company, its Subsidiaries or any Company Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.BEC
Appears in 1 contract
Samples: Merger Agreement (Bec Group Inc)
