Termination Fees. (a) [Reserved]. (b) In the event that: (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”; (ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal]; (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or (iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee. (c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received. (d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Noble Corp PLC), Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Diamond Offshore Drilling, Inc.)
Termination Fees. (a) [Reserved].
(b) In The Company shall pay the event thatTermination Fee to Parent if the Agreement is terminated as follows:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by either the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company (Requisite Stockholder Approval]; then) at a time when this Agreement was terminable by Parent pursuant to Section 8.1(d)(ii) (Adverse Recommendation Change) or terminated by Parent pursuant to Section 8.1(d)(ii) (Adverse Recommendation Change), then the Company shallshall pay the Termination Fee on the second (2nd) Business Day following such termination;
(ii) If this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) (Superior Proposal), then the Company shall pay the Termination Fee concurrently with such termination; and
(iii) (x) If this Agreement is terminated (A) pursuant to Section 8.1(b)(iii) (Requisite Stockholder Vote), (B) pursuant to Section 8.1(d)(i) (Company Breach) or (C) pursuant to Section 8.1(b)(i) (Termination Date), (y) in any such case a Competing Proposal shall have been publicly announced or, in the case of a termination pursuant to clause (B) or (C), otherwise communicated to the Company Board (and not withdrawn) after the date of this Agreement and prior to the date of the Stockholders’ Meeting, in the case of clause (i) aboveA), upon or the earlier date of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposaltermination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause clauses (iiB) above, concurrently withand (C), and as a condition to (z) if within twelve (12) months after the effectiveness date of such termination, pay (a transaction in respect of such Competing Proposal is consummated or cause to be paid) Parent (or one or more of its designees) the Company enters into a definitive agreement in respect of such Competing Proposal, then the Company shall pay the Termination Fee; Fee on the second (C) in the case of clause (iii) above, within two (22nd) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) Day following the date the Company Termination Fee; and enters into such transaction (D) provided, that solely for purposes of this Section 8.3(a)(iii), the term “Competing Proposal” shall have the meaning ascribed thereto in the case of clause Section 6.5(g)(i), except that all references to 20% shall be changed to 50%).
(iv) above, within two (2Any Termination Fee due by the Company under this Section 8.3(a) Business Days of such termination, pay (or cause to shall be paid) Parent (or one or more of its designees) paid by the No Vote Termination Fee; in each case Company by wire transfer of immediately available funds to one or more accounts designated by Parent; (it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion).
(b) Parent shall pay the Reverse Termination Fee to the Company on the second (2nd) Business Day following such termination if (i) the Agreement is terminated pursuant to Section 8.1(b)(i) (Termination Date) or Section 8.1(b)(ii) (Legal Restraint) (with respect to Section 8.1(b)(ii), solely to the extent the applicable Law or Order arises under the HSR Act or any other Antitrust Law or Foreign Investment Law) and (ii) all of the conditions to Closing set forth in Article VII shall have been satisfied or validly waived (except for those conditions that by their terms must be satisfied at the Closing; provided that such conditions would have been so satisfied if the Closing would have occurred on or before the date of termination), other than the conditions to Closing set forth in Section 7.1(b) or Section 7.1(c) (with respect to Section 7.1(c), solely to the extent that such Law or Order arises under the HSR Act or any other Antitrust Law or Foreign Investment Law). The Reverse Termination Fee due by Parent under this Section 8.3(b) shall be paid by Parent by wire transfer of immediately available funds (it being understood that in no event shall Parent be required to pay the Reverse Termination Fee on more than one occasion).
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.9, (x) Parent’s receipt in full of the Termination Fee pursuant to Section 8.3(a), in circumstances where the event the Company Termination Fee becomes payable is owed pursuant to Section 8.3(a), shall constitute the sole and exclusive monetary remedy of Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited and Merger Subs against the Company Termination Fee. Following receipt by Parent and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of any breach or one or more failure to perform hereunder giving rise to such termination, and upon payment of its designees) such amount, none of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein thereby with respect to Parent such breach or failure to perform; and (y) the Company’s receipt in full of the Reverse Termination Fee pursuant to Section 8.3(b), in circumstances where the Reverse Termination Fee is owed pursuant to Section 8.3(b), shall constitute the sole and exclusive monetary remedy of the Company and its Subsidiaries against Parent and Merger Subs and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any other Personof the foregoing (collectively, other than in respect the “Parent Related Parties”) for all losses and damages suffered as a result of Willful any breach or failure to perform hereunder giving rise to such termination, and Material Breach upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or Fraud orthe transactions contemplated thereby with respect to such breach or failure to perform; provided, further, that notwithstanding the foregoing, the Company, Parent and Merger Subs shall be entitled to the extent the Company Termination Fee becomes payable to Parent following payment pursue an injunction, or other appropriate form of the No Vote Termination Feespecific performance or equitable relief, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feesolely as provided in Section 9.9.
(cd) If Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee and Reverse Termination Fee are not penalties, but are liquidated damages, in a reasonable amount that will compensate Parent or the Company, as applicable, in the circumstances in which such fees are 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 transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would not enter into this Agreement. Accordingly, if the Company or Parent, as applicable, fails to timely pay an any amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent or the Company, as applicable, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, then Parent or the Company Company, as applicable, shall pay Parent the other party its costs and expenses in connection with such suit, together with interest on such amount at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Matterport, Inc./De), Merger Agreement (Matterport, Inc./De), Merger Agreement (Costar Group, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of The parties hereto agree that if this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent Acquirors pursuant to Section 8.1(b)(iii8.1(b) [Failure to Obtain Company Stockholder Approval]; then, or by the Company shallpursuant to Section 8.1(e), (A) then the Company shall pay to the Acquirors, in such amounts and to such accounts as shall be directed by the Acquirors, prior to or concurrently with such termination, in the case of clause (i) abovea termination by the Company, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such terminationthereafter, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause a termination by the Acquirors, the Termination Fee.
(ivb) aboveThe parties hereto agree that if this Agreement is terminated either (i) by the Company, on the one hand, or the Acquirors, on the other hand, (A) pursuant to Section 8.1(c), if the relevant Order permanently restraining, enjoining or otherwise prohibiting or Law preventing or making illegal the consummation of the Merger relates to a failure to obtain the necessary clearances under the HSR Act or any Requisite Gaming Approval or (B) pursuant to Section 8.1(d) as a result of the failure to satisfy the conditions set forth in Section 7.1(d) or Section 7.1(e), or (ii) by the Company pursuant to Section 8.1(g), then the Acquirors shall jointly and severally be liable for and shall pay to the Company prior to or concurrently with such termination, in the case of a termination by the Acquirors, or within two (2) Business Days thereafter, in the case of such terminationa termination by the Company, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Reverse Termination Fee; in each case .
(c) All payments under this Section 8.3 shall be made by wire transfer of immediately available funds to one such accounts as shall be designated in writing by the Acquirors or more accounts designated by Parent; it being understood that the Company, as applicable, or in no the absence of such designation, an account established for the sole benefit of the Acquirors in the event shall of the Company be required to pay payment of the Company Termination Fee or an account established for the No Vote Termination Fee on more than one occasion and, sole benefit of the Company in the event of the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Reverse Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The Each of the parties acknowledge acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, the Real Estate Purchase Agreement and that without these agreements, the parties Acquirors, Merger Sub and the Company would not enter into this Agreement or, as applicable, the Real Estate Purchase Agreement. For the avoidance of doubt, in no event shall the Company be required to pay the Termination Fee on more than one occasion or the Acquirors be required to pay the Reverse Termination Fee on more than one occasion.
(e) The parties hereby agree that any and all remedies, including, but not limited to, the payment of the Termination Fee or the Reverse Termination Fee, provided in this Agreement will be deemed cumulative with, and not exclusive of, any other remedy conferred hereby, or at Law or in equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.
Appears in 3 contracts
Samples: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Termination Fees. (a) [Reserved].Section 9.2(b) of the Agreement is hereby amended to read in its entirety as follows: "
(b) In the event that:
If this Agreement is terminated: (i) by the Acquiror pursuant to clause (1i) This of Subsection 9.1(i) hereof (except if circumstances exist that would allow the Company to terminate this Agreement pursuant to Subsection 9.1(c) hereof as a result of a Material Adverse Effect on the Acquiror); (ii) by the Acquiror pursuant to Subsection 9.1(i) hereof under any circumstances other than those described in clause (i) of this Subsection 9.2(b); (iii) by Acquiror or Company pursuant to Subsection 9.1(f) hereof because of the failure to obtain the required approval from the Company stockholders and at the time of such termination or prior to the Company Stockholders' Meeting there shall have been terminated pursuant an Acquisition Proposal (whether or not such offer, proposal, announcement or agreement shall have been rejected or shall have been withdrawn prior to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain the time of such termination or of the Company Stockholder Approval] Stockholders' Meeting); or (ziv) by Acquiror as a result of Company's material breach of Section 8.1(d)(ii7.3 or Subsection 7.1(a) [Company Breach of Reps and Warranties or Covenants]hereof, (2) the Company shall promptly pay to Acquiror or any other Person shall have publicly disclosed or announced a the Company Alternative Proposal made on or by wire transfer of same day funds not later than two Business Days after the date of this Agreement but prior to such termination a termination fee of $4,528,000 (the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination"Termination Fee"), any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, thathowever, for purposes of that if this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by Acquiror or the Company or Parent pursuant to Section 8.1(b)(iiiSubsection 9.1(f) [Failure hereof under the circumstances described in Subsection 9.2(b)(iii) hereof, and at the time of such termination the stockholders of the Acquiror shall have failed to Obtain Company Stockholder Approval]; thenapprove the issuance of Acquiror Common Stock pursuant to this Agreement, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to Acquiror shall not be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition entitled to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement."
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Unitrode Corp), Agreement and Plan of Merger (Unitrode Corp), Agreement and Plan of Merger (Unitrode Corp)
Termination Fees. (a) [Reserved].
(b) In the event that:
that this Agreement is terminated: (i) (1) This Agreement shall have been terminated by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated Parent terminates this Agreement pursuant to Section 8.1(c)(ii7.1(d)(ii) [due to an intentional breach by the Company Superior and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal];
(iii) ; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then7.1(d)(i), the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the No Vote Termination Fee on more Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than one occasion and, in those conditions that by their nature are to be satisfied at the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(bClosing), the Company shall have no further liability pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with respect to this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the transactions contemplated herein Company pursuant to Parent or its Subsidiaries or Affiliates or any other PersonSection 7.1(b)(iii), other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due consummates a transaction pursuant to this Section 8.3any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on Company Termination Fee less any Expense Reimbursement previously paid by the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedCompany.
(dc) The parties acknowledge Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 8.3 7.3 are an integral part of Transactions. In the transactions contemplated by this Agreement and that, without these agreementsevent that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the parties would not enter into Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this AgreementSection 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 3 contracts
Samples: Merger Agreement (Ulticom, Inc), Merger Agreement (Ulticom, Inc), Merger Agreement (Ulticom, Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated If Parent terminates this Agreement pursuant to Section 8.1(c)(ii9.1(a)(ii), then the Company shall pay to Parent promptly, but in no event later than one (1) [business day after the date of such termination, a termination fee of $9,450,000 in cash (the “Company Superior Proposal];Termination Fee”).
(iiiii) Parent shall have terminated If the Company terminates this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant 9.1(b)(ii), prior to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, the Company shall pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; .
(iii) If (A) Parent or the Company shall have terminated this Agreement pursuant to Section 9.1(c)(iii), and (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement an Acquisition Proposal (whether or not a continuation or renewal of, or otherwise relating to, an Acquisition Proposal that was publicly announced or became publicly known prior to the execution and delivery of this Agreement) shall have been publicly announced or shall have become publicly known and not publicly withdrawn, and (C) in the case of clause concurrently with, or within twelve (iii12) above, within two (2) Business Days of months following such termination, a definitive agreement is entered into relating to a Third Party Acquisition Event or a Third Party Acquisition Event is otherwise consummated, then the Company shall pay (to Parent promptly, but in no event later than the date of signing such definitive agreement or cause to be paid) Parent (or one or more consummation of its designees) such Third Party Acquisition Event, as the case may be, the Company Termination Fee; and (D) in the case of clause .
(iv) aboveIf (A) Parent shall have terminated this Agreement pursuant to Section 9.1(a)(i) as a result of a breach of a covenant or agreement of the Company under this Agreement or an intentional breach of a representation or warranty of the Company under this Agreement, within two and (2B) Business Days following the execution and delivery of this Agreement and prior to the breach forming the basis for such termination, an Acquisition Proposal (whether or not a continuation or renewal of, or otherwise relating to, an Acquisition Proposal that was known to the Company prior to the execution and delivery of this Agreement) is known to the Company, and (C) concurrently with, or within twelve (12) months following such termination, a definitive agreement is entered into relating to a Third Party Acquisition Event or a Third Party Acquisition Event is otherwise consummated, then the Company shall pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that promptly, but in no event shall later than the Company be required to pay date of signing such definitive agreement or consummation of such Third Party Acquisition Event, as the Company Termination Fee or the No Vote Termination Fee on more than one occasion andcase may be, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following .
(v) Notwithstanding anything to the contrary in this Agreement, if the Company shall have terminated this Agreement pursuant to Section 9.1(b)(iii), the Company’s receipt by of payment of a termination fee of $9,450,000 (the “Parent (or one or more of its designees) Termination Fee”), shall be the sole and exclusive remedy of the Company Termination Fee and the Company Subsidiaries against Parent or Purchaser or any of their respective former, current or future directors, officers, employees, agents, affiliates, stockholders, assignees or representatives of any of the No Vote foregoing (each a “Specified Person”) for any loss or damage suffered as a result of the termination of this Agreement and the failure of the Merger to be consummated, and upon payment of the Parent Termination Fee in accordance with this Section 8.3(b9.2(b)(v), the Company none of Parent or Purchaser or any of their respective Specified Persons shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeTransactions.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (World Air Holdings, Inc.), Merger Agreement (Global Aero Logistics Inc.)
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii) or the Company pursuant to Section 7.1(d)(ii), then the Company shall pay to Parent, no later than the second (2nd) Business Day following termination in the case of Section 7.1(c)(ii) and concurrently with termination in the case of Section 7.1(d)(ii), by wire transfer of same-day funds (i) a termination fee of $12,600,000 (the “Termination Fee”) and (ii) all out-of-pocket expenses, actually documented and incurred or payable by or on behalf of Parent or Purchaser in connection with or in anticipation of the Transactions (whether before or after the date of this Agreement), including all attorneys’ fees, financial advisor’s fees, accountants’ fees and filing fees (the “Expense Payment”); provided that in no circumstance shall the Expense Payment exceed $1,000,000 in the aggregate.
(b) In the event that:
that (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] Parent or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) 7.1(b)(iii), or Parent shall have terminated terminate this Agreement pursuant to Section 8.1(d)(i7.1(c)(i) [as a result of a breach of Section 5.2, and (ii) in each case prior to the time of such termination a bona fide Takeover Proposal or an intention (whether or not conditional) to make a Takeover Proposal has been publicly made or otherwise made known to the Company Change Board or generally to the Company Stockholders and not withdrawn at least five (5) Business Days prior to termination, and (iii) if, within 12 months after the date of Recommendation]; or
(iv) This Agreement such termination, a definitive agreement is terminated entered into by the Company or Parent pursuant any of its Affiliates with respect to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; thenany Takeover Proposal or any Takeover Proposal is consummated, then the Company shallshall pay to Parent, (A) in on the case of clause (i) abovedate such agreement is entered into or on the date that such Takeover Proposal is consummated, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposalwhichever is earlier, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andsame-day funds, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less and the No Vote Termination Fee.
(c) If Expense Payment; provided, however, that for the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part purpose of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.this
Appears in 2 contracts
Samples: Merger Agreement (Galderma Laboratories, Inc.), Merger Agreement (Collagenex Pharmaceuticals Inc)
Termination Fees. (a) [Reserved]In the event that (i) this Agreement is terminated by EUA pursuant to Section 9.01(e) or (ii) any person or group shall have made an Alternative Proposal that has not been withdrawn and this Agreement is terminated by (A) NEES pursuant to Sectxxx 9.01(c) or Section 9.01(g) or (B) by EUA pursuant to Section 9.01(b) and, in the case of this clause (ii) only, a definitive agreement with respect to such Alternative Proposal is executed within two years after such termination, then EUA shall pay to NEES, by wire transfex xx same day funds, either on the date contemplated in Section 9.01(e) if applicable, or otherwise, within five (5) business days after such termination, a termination fee of $20 million, plus an amount equal to all documented out-of-pocket expenses and fees incurred by NEES arising out of, xx xn connection with or related to, the Merger and other transactions contemplated hereby, not in excess of $5 million in the aggregate.
(b) In the event that:
that this Agreement is terminated by either NEES or EUA pursuant xx Xection 9.01(b) and at the time of such termination (i) (1the conditions to the Closing set forth in Section 8.01(d) This Agreement shall not have been terminated pursuant to (x) Section 8.1(b)(i) [End Date]fulfilled, (yii) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) if the Company or date o f termination is any date other Person shall have publicly disclosed or announced than a Company Alternative Proposal made date which is on or after the date Extended Termination Date, all conditions contained in Article VIII other than Sections 8.01(d) or 8.03(c) shall have been fulfilled or are capable of this Agreement but prior to the earlier being fulfilled as of such date, and (xiii) the Company Meeting and merger contemplated by the National Grid Merger Agreement has not yet been consummated, then NEES shall pay to EUA, xx wire transfer of same day funds, within five (y5) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of business days after such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provideda termination fee of $10 million, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) plus an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3all documented out-of-pocket expenses and fees incurred by EUA arising out of, or in connection with or related to, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the Merger and other transactions contemplated by this Agreement and thathereby, without these agreements, not in excess of $5 million in the parties would not enter into this Agreementaggregate.
Appears in 2 contracts
Samples: Merger Agreement (Eastern Utilities Associates), Merger Agreement (Eastern Edison Co)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1) This (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) and, at the time of such termination, any of the conditions set forth in Section 7.01(b) or Section 7.03(e) or, in connection with the Required Statutory Approvals, Section 7.01(c) shall have not been satisfied, (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if, and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Statutory Approvals or in connection with the assertion that the approval of a state regulatory commission other than that of the KCC is required) or (C) the Company terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a), Section 7.03(a), Section 7.03(b) and Section 7.03(c) shall have been terminated pursuant satisfied or waived (except for (I) those conditions that by their nature are to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination or (zII) Section 8.1(d)(ii) [Company Breach those conditions that have not been satisfied as a result of Reps and Warranties a breach of this Agreement by Parent or Covenants]Merger Sub), or (2) the Company terminates this Agreement pursuant to Section 8.01(c)(iii), then Parent shall pay to the Company a fee of $380,000,000 in cash (the “Parent Termination Fee”). Parent shall pay the Parent Termination Fee to the Company (to an account designated in writing by the Company) prior to or any other Person shall have publicly disclosed concurrently with such termination of this Agreement by Parent or announced a Company Alternative Proposal made on or no later than three (3) Business Days after the date of the applicable termination by the Company.
(ii) If the Company terminates this Agreement but pursuant to Section 8.01(c)(i) or Parent terminates this Agreement pursuant to Section 8.01(d)(i), the Company shall pay to Parent a fee of $280,000,000 in cash (the “Company Termination Fee”). The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to the earlier of (x) the Company Meeting and (y) the or concurrently with such termination of this Agreement by the Company pursuant to Section 8.01(c)(i) or no later than three (3) Business Days after the date of such termination of this Agreement by Parent pursuant to Section 8.01(d)(i).
(iii) If the Company terminates this Agreement pursuant to Section 8.01(c)(iv), Parent shall pay to the Company a fee of $180,000,000 in cash (the “Parent Fiduciary Out Termination Fee”). Parent shall pay the Parent Fiduciary Out Termination Fee to the Company (to an account designated in writing by the Company) no later than three (3) Business Days after the date of such termination of this Agreement by the Company pursuant to Section 8.01(c)(iv).
(iv) If (1) either (A) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) or Section 8.01(b)(iii) or (B) Parent terminates this Agreement pursuant to Section 8.01(d)(ii), (2) a Company Takeover Proposal shall have been publicly disclosed or made to the Company after the date hereof (x) in the circumstances set forth case of a termination pursuant to Section 8.01(b)(i) or Section 8.01(d)(ii), prior to the date of such termination, or (y) in clause (i)(1) above the case of a termination pursuant to Section 8.01(b)(iii), prior to the date of the Company Shareholders Meeting, and (3) within twelve (12) months after the termination of this Agreement, the Company shall have entered into a Company Acquisition Agreement which is subsequently consummated, or consummated a Company Takeover Proposal, then the Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) within three (3) Business Days after the earlier of the date the Company enters into such termination, any transaction constituting any Company Alternative Proposal is consummated Acquisition Agreement or an agreement providing for any consummates such Company Alternative Proposal is executed; provided, that, for Takeover Proposal. For purposes of this clause (i3) of this Section 8.02(b)(iv), the references term “Company Takeover Proposal” shall have the meaning assigned to “20% or more” such term in Section 5.03, except that the applicable percentage in the definition of “Company Alternative Takeover Proposal” shall be deemed to be references to “5050.1%” rather than “20% or more”;.
(iiv) The If (1) either (A) Parent or the Company shall have terminated terminates this Agreement pursuant to Section 8.1(c)(ii8.01(b)(i) [or Section 8.01(b)(iv) or (B) the Company Superior Proposal];
(iii) Parent shall have terminated terminates this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall8.01(c)(ii), (A2) a Parent Takeover Proposal shall have been publicly disclosed or made to Parent after the date hereof (x) in the case of clause (ia termination pursuant to Section 8.01(b)(i) aboveor Section 8.01(c)(ii), upon prior to the earlier date of (x) the execution of an agreement providing for any Company Alternative Proposal and such termination, or (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) abovea termination pursuant to Section 8.01(b)(iv), concurrently withprior to the date of the Parent Shareholders Meeting, and as (3) within twelve (12) months after the termination of this Agreement, Parent shall have entered into a condition Parent Acquisition Agreement which is subsequently consummated, or consummated a Parent Takeover Proposal, then Parent shall pay the Parent Fiduciary Out Termination Fee to the effectiveness Company (to an account designated in writing by the Company) within three (3) Business Days after the earlier of the date Parent enters into such termination, pay (Parent Acquisition Agreement or cause to be paid) consummates such Parent (or one or more of its designees) the Company Termination Fee; (C) in the case Takeover Proposal. For purposes of clause (iii3) aboveof this Section 8.02(b)(v), within two the term “Parent Takeover Proposal” shall have the meaning assigned to such term in Section 5.04, except that the applicable percentage in the definition of “Parent Takeover Proposal” shall be “50.1%” rather than “20% or more”.
(2vi) Business Days of such termination, pay (If either Parent or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; terminates this Agreement pursuant to Section 8.01(b)(iv) and no fee is then payable pursuant to Section 8.02(b)(i), Section 8.02(b)(iii) or Section 8.02(b)(v), then Parent shall pay to the Company a fee of $80,000,000 in cash (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) “Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event ”). Parent shall the Company be required to pay the Company Termination Fee or the Parent No Vote Termination Fee on more than one occasion and, to Company (to an account designated in the event the Company Termination Fee becomes payable writing by Company) prior to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance concurrently with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach such termination of this Agreement by Parent pursuant to Section 8.01(b)(iv) or Fraud or, to no later than three (3) Business Days after the extent date of such termination of this Agreement by the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received8.01(b)(iv).
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Westar Energy Inc /Ks), Merger Agreement (Kansas City Power & Light Co)
Termination Fees. (a) [Reserved].
(bi) In the event that:
that this Agreement is terminated by Buyer or Sellers under (i) (1) This Agreement shall have been terminated pursuant to (xA) Section 8.1(b)(i) [End Date]10.01(b), (yB) Section 8.1(b)(iii10.01(c), (C) [Failure to Obtain Company Stockholder Approval] Section 10.01(d), (D), Section 10.01(f), (E) Section 10.01(g), (F) Section 10.01(j) or (zG) Section 8.1(d)(ii) [Company Breach 10.01(k); and all of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances conditions set forth in clause Sections 9.02(a), (i)(1b) above and (3c) within twelve (12) months have been satisfied as of the date of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” then in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of each such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) abovecase, within two three (23) Business Days after termination of such terminationthis Agreement, Buyer shall pay (or cause to be paid) Parent (or one or more of its designees) Sellers the Company Buyer Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case Fee by wire transfer of immediately available funds to one or more accounts an account designated by ParentSellers as promptly as possible (but in any event within three (3) Business Days) following termination of this Agreement; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andprovided, in the event case of (A) through (G) hereof, that the Company Termination Fee becomes payable event, action or inaction giving rise to Parent following payment of such termination was primarily related to a failure to obtain the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent Gaming Approvals and that Sellers’ (or one or more the Company’s) failure to fulfill any obligation of its designees) of the Company Termination Fee Sellers (or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to Company) under this Agreement or did not materially contribute to such failure to obtain the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeGaming Approvals.
(ii) In the event that this Agreement is terminated by Buyer or Sellers (as applicable) under (A) Section 10.01(c) and any of the conditions set forth in Sections 9.02(a), (b) and (c) If have not been satisfied as of the Company fails to timely pay an amount due pursuant to this date of such termination, (B) Section 8.310.01(e), (C) Section 10.01(h), (D) Section 10.01(i), or (E) Section 10.01(g) and the Company Gaming Approvals have been obtained and all of the conditions set forth in Sections 9.03 have been satisfied as of the date of such termination, then Sellers shall pay Parent interest on to Buyer the Seller Termination Fee by wire transfer of immediately available funds to an account designated by Buyer as promptly as possible (but in any event within three (3) Business Days) following termination of this Agreement; provided, in the case of (A) through (E) hereof, that Buyer’s failure to fulfill any obligation of Buyer under this Agreement did not materially contribute to the events or circumstances that gave rise to the right of such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedtermination.
(diii) The parties acknowledge Each of Sellers and Buyer acknowledges that the agreements contained in this Section 8.3 10.02(c) are an integral part of the transactions contemplated by this Agreement and thatAgreement, that without these agreements, the parties agreements Sellers and Buyer would not enter have entered into this Agreement, and that any amounts payable pursuant to this Section 10.02(c) do not constitute a penalty. If Buyer (in the case of Section 10.02(c)(i)) or Sellers (in the case of Section 10.02(c)(ii)) fail(s) to pay the termination fee required under such Section within three (3) Business Days following termination of this Agreement (i) the breaching party shall promptly upon written request reimburse the non-breaching party(ies) all reasonable costs and expenses (including reasonable legal fees and expenses) incurred by the non-breaching party(ies) to enforce this Section 10.02(c) and (ii) shall pay interest on the amount of the applicable termination fee at the rate of ten percent (10%) per annum, compounded annually, from the day immediately following such third Business Day through and including the date of payment.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (OCM HoldCo, LLC), Membership Interest Purchase Agreement (Gaming & Leisure Properties, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
that this Agreement is terminated by (i) (1) This Agreement shall have been terminated Company pursuant to (xA) Section 8.1(b)(i6.1(d)(ii) [End DateParent Adverse Recommendation Change], or (B) Section 6.1(d)(iii) [Parent Non-Solicit Breach], (yii) Parent or Company pursuant to Section 8.1(b)(iii6.1(b)(iv) [Failure Parent Downvote] at a time when Company had the right to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii6.1(d)(ii) [Company Superior ProposalParent Adverse Recommendation Change];
, or (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i6.1(c)(iv) [Parent Superior Proposal], then Parent shall pay to Company Change of Recommendation]; or
the Parent Termination Fee (iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (Ax) in the case of clause (i) aboveor clause (ii), upon the earlier of as promptly as possible (xbut in any event within three (3) the execution of an agreement providing for any Company Alternative Proposal Business Days) following such termination and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above), within two (2) Business Days of prior to or concurrently with such termination, pay .
(or cause to be paidb) In the event that this Agreement is terminated by (i) Parent pursuant to (A) Section 6.1(c)(ii) [Company Adverse Recommendation Change] or one (B) Section 6.1(c)(iii) [Company Non-Solicit Breach], (ii) Parent or more of its designeesCompany pursuant to Section 6.1(b)(iii) [Company Downvote] at a time when Parent had the right to terminate this Agreement pursuant to Section 6.1(c)(ii) [Company Adverse Recommendation Change], or (iii) Company pursuant to Section 6.1(d)(iv) [Company Superior Proposal], then Company shall pay to Parent the Company Termination Fee; and Fee (Dx) in the case of clause (ivi) aboveor clause (ii), as promptly as possible (but in any event within two three (23) Business Days Days) following such termination and (y) in the case of clause (iii), prior to or concurrently with such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If In the Company fails to timely pay an amount due event that this Agreement is terminated by either Party pursuant to Section 6.1(b)(i) [Termination Date] and at the time of such termination, (i) the Parent Stockholder Approval shall not have been obtained and (ii) Company would have been permitted to terminate this Agreement pursuant to Section 8.36.1(d)(ii) [Parent Adverse Recommendation Change], and in each case of clauses (i) and (ii) a Parent Acquisition Proposal has been publicly proposed or otherwise publicly communicated to Parent’s stockholders or the Company Parent Board and remains outstanding at the time of the Parent Meeting, then Parent shall pay to Company the Parent interest on Termination Fee as promptly as possible (but in any event within three (3) Business Days) following such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedtermination.
(d) The parties acknowledge In the event that this Agreement is terminated by either Party pursuant to Section 6.1(b)(i) [Termination Date] and at the agreements contained time of such termination, (i) the Company Requisite Shareholder Vote shall not have been obtained and (ii) Parent would have been permitted to terminate this Agreement pursuant to Section 6.1(c)(ii) [Company Adverse Recommendation Change], and in each case of clauses (i) and (ii) a Company Acquisition Proposal has been publicly proposed or otherwise publicly communicated to Company’s shareholders or the Company Board and remains outstanding at the time of the Company Meeting, then Company shall pay to Parent the Company Termination Fee as promptly as possible (but in any event within three (3) Business Days) following such termination.
(e) In the event that (i) prior to the Company Meeting, a Company Acquisition Proposal is publicly proposed or otherwise publicly communicated to Company’s shareholders or the Company Board and remains outstanding three (3) Business Days prior to the time of the Company Meeting and (ii) this Agreement is terminated by Parent or Company pursuant to Section 6.1(b)(i) [Termination Date] or Section 6.1(b)(iii) [Company Downvote] or by Parent pursuant to Section 6.1(c)(i) [Company Terminable Breach] and concurrently with or within 12 months after any such termination described in clause (ii), Company or any Subsidiary of Company enters into a definitive agreement with respect to, or otherwise consummates, any Company Acquisition Proposal (substituting 50% for the 20% threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 6.3(e)), then Company shall pay to Parent the Company Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the earlier of the entry into such definitive agreement or consummation of such Company Acquisition Proposal.
(f) In the event that (i) prior to the Parent Meeting, a Parent Acquisition Proposal is publicly proposed or otherwise publicly communicated to Parent’s stockholders or the Parent Board and remains outstanding three (3) Business Days prior to the time of the Parent Meeting and (ii) this Agreement is terminated by Parent or Company pursuant to Section 6.1(b)(i) [Termination Date] or Section 6.1(b)(iv) [Parent Downvote] or by Company pursuant to Section 6.1(d)(i) [Parent Terminable Breach] and concurrently with or within 12 months after any such termination described in clause (ii), Parent or any Subsidiary of Parent enters into a definitive agreement with respect to, or otherwise consummates, any Parent Acquisition Proposal (substituting 50% for the 20% threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 6.3(f)), then Parent shall pay to Company the Parent Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the earlier of the entry into such definitive agreement or consummation of such Parent Acquisition Proposal.
(g) As used in this Section 8.3 are an integral part of the transactions contemplated by this Agreement Agreement, (i) “Company Termination Fee” shall mean a cash amount equal to $127,000,000, and that, without these agreements, the parties would not enter into this Agreement(ii) “Parent Termination Fee” shall mean a cash amount equal to $240,000,000.
Appears in 2 contracts
Samples: Arrangement Agreement (Chord Energy Corp), Arrangement Agreement (ENERPLUS Corp)
Termination Fees. (a) [Reserved]If this Agreement is terminated by the Company pursuant to Section 6.1(e), by Parent pursuant to Section 6.1(d), or by either Parent or the Company pursuant to Section 6.1(b) or Section 6.1(f) at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 6.1(d), then, within two (2) Business Days after the termination of this Agreement (or, in the case of a termination pursuant to Section 6.1(e), at or prior to termination), the Company shall cause to be paid to Parent the Termination Fee.
(b) In the event that:
(i) (1) This If this Agreement shall have been is terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] by Parent or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) 6.1(f), or by Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i6.1(g) [Company Change of Recommendation]; or
(iv) This Agreement is terminated or by the Company or Parent pursuant to Section 8.1(b)(iii6.1(b) [Failure at any time when this Agreement could have been terminated pursuant to Obtain Company Stockholder Approval]; then, the Company shall, (ASection 6.1(f)) in the case of clause and: (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (at or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition prior to the effectiveness date of such termination, pay any Person shall have publicly announced an intention to make a Company Acquisition Proposal, or a Company Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made and shall not have been publicly withdrawn at least five (5) Business Days prior to the date of such termination; and (ii) on or cause prior to the date that is twelve (12) months following the termination of this Agreement, either (A) a Company Acquisition Transaction is consummated or (B) a definitive agreement relating to a Company Acquisition Transaction is entered into by the Company (it being understood that, for purposes of this clause “(B),” each reference to “twenty percent (20%)” in the definition of “Company Acquisition Transaction” in Exhibit A shall be deemed to be paid) Parent a reference to “fifty percent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above50%)”), then, within two (2) Business Days after the earlier of the consummation of such terminationCompany Acquisition Transaction or entering into a definitive agreement relating to a Company Acquisition Transaction, pay (or the Company shall cause to be paidpaid to Parent the Termination Fee.
(c) Parent (or one or more of its designees) Any Termination Fee due and payable by the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to under this Section 6.3 shall be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case paid by wire transfer of immediately available funds to an account designated in writing by Parent. For the avoidance of doubt, the Termination Fee shall be payable by the Company only once and not in duplication even though the Termination Fee may be payable by the Company under one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Feeprovisions hereof. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount the Termination Fee when due pursuant to this Section 8.3and payable by the Company, then the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent) at a rate per annum equal to the “prime rate rate” (as published in The Wall Street Journal Journal) in effect on the date such payment amount was originally required to be made plus 3% per annum through paid, and the date Company shall pay the costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken by Parent to collect payment. The parties agree that if the Termination Fee becomes payable by, and is paid by, the Company, then such payment is actually receivedTermination Fee shall be Parent’s sole and exclusive remedy for damages against the Company and its Affiliates and its and their Representatives in connection with this Agreement; provided, that nothing contained herein shall relieve any party from liability for fraud with respect to the representations and warranties of the Company expressly set forth in Section 2.
(d) The Each of the parties acknowledge acknowledges that the agreements contained in this Section 8.3 6.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, agreements the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Viasat Inc), Merger Agreement (RigNet, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement a bona fide Alternative Proposal, whether or not conditional, shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Alternative Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by Parent pursuant to Section 7.1(b)(i), Section 7.1(b)(iii) (xso long as the Alternative Proposal was publicly disclosed prior to, and had not been withdrawn at, the time of the Company Meeting) or Section 8.1(b)(i) [End Date]7.1(d)(i), and (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on (whether or after not such Alternative Proposal was the date of this Agreement but prior same Alternative Proposal referred to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in foregoing clause (i)(1) above and (3A)) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal the date this Agreement is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, terminated (provided that for purposes of this clause (iSection 7.2(a)(i), the references to “20% or more%” in the definition of “Company Alternative Proposal” Proposal shall be deemed to be references to “50% or more%”;); or
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 7.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii7.1(d)(i) [Failure on the basis of a willful breach or willful failure to Obtain Company Stockholder Approval]perform by the Company, 7.1(d)(ii) or 7.1(d)(iii); thenthen in any such event under clause (i), (ii) or (iii) of this Section 7.2(a), the Company shallshall pay to Parent a termination fee of $33 million in cash, less any Parent Expenses, if any, previously paid in accordance with Section 7.2(b) (A) in such net amount the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company “Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in occasion.
(b) In the event that this Agreement is terminated by Parent under the Company provisions referred to in clause (B) of Section 7.2(a)(i) and the circumstances referred to in clause (A) of Section 7.2(a)(i) shall have occurred prior to such termination but the Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designeesany portion thereof) has not been paid and is not payable because the circumstances referred to in clause (C) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b)7.2(a)(i) shall not have occurred, then the Company shall have no further liability with respect pay, to an account or accounts designated by Parent, as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor all of Parent’s and Merger Sub’s actual and reasonably documented out-of-pocket fees and expenses (including legal fees and expenses) actually incurred by Parent, Merger Sub and their Affiliates on or prior to the termination of this Agreement or in connection with the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of by this Agreement or Fraud or(“Parent Expenses”), which amount shall not be greater than $5 million; provided, that the existence of circumstances which could require the Termination Fee to the extent become subsequently payable by the Company Termination Fee becomes payable pursuant to Section 7.2(a)(i) shall not relieve the Company of its obligations to pay the Parent following Expenses pursuant to this Section 7.2(b); and provided, further that the payment by the Company of Parent Expenses pursuant to this Section 7.2(b) shall not relieve the No Vote Termination Fee, Company of any subsequent obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feepursuant to Section 7.2(a)(i).
(c) If In the Company fails to timely pay an amount due pursuant to this Section 8.3, event that (i) (x) the Company shall pay terminate this Agreement pursuant to Section 7.1(c)(i) on the basis of a willful breach or willful failure to perform by Parent interest on such amount or Merger Sub and (y) at the prime rate as published time of such termination there is no state of facts or circumstances that would reasonably be expected to cause the conditions in The Wall Street Journal in effect Section 6.1, Section 6.3(a) or Section 6.3(b) not to be satisfied on the date End Date assuming the Closing were to be scheduled on the End Date, or (ii) Parent or the Company shall terminate this Agreement pursuant to Section 7.1(b)(i) and the conditions set forth in Section 6.1, Section 6.3(a) and Section 6.3(b) shall have been satisfied either (A) at the time of such payment was termination, or (B) if earlier, on the last day of the Marketing Period if the Merger shall not have been consummated as of the end of the Marketing Period, then Parent shall pay to the Company a termination fee of $33 million in cash (the “Parent Termination Fee”), it being understood that in no event shall Parent be required to be made plus 3% per annum through pay the date such payment is actually receivedParent Termination Fee on more than one occasion.
(d) The Any payment required to be made pursuant to clause (i) of Section 7.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by an Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to clause (ii) of Section 7.2(a) shall be made to Parent concurrently with, and as a condition to the effectiveness of, the termination of this Agreement by the Company pursuant to Section 7.1(c)(ii); any payment required to be made pursuant to clause (iii) of Section 7.2(a) shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(d)(i), (ii) or (iii), as applicable (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment), and such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent. Any payment required to be made pursuant to Section 7.2(b) shall be made to the Company promptly following termination of this Agreement by the Company or Parent, as the case may be (and in any event not later than two Business Days after delivery to Parent of notice of demand for payment), and such payment shall be made by wire transfer of immediately available funds to an account to be designated by the Company.
(e) In the event that the Company shall fail to pay the Termination Fee, or Parent shall fail to pay the Parent Termination Fee, required pursuant to this Section 7.2 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. In addition, if either party shall fail to pay such fee when due, then such owing party shall also pay to the owed party all of the owed party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee.
(f) Each of the parties acknowledge hereto acknowledges that the agreements contained in this Section 8.3 7.2 are an integral part of the transactions contemplated by this Agreement and thatthat neither the Termination Fee nor the Parent Termination Fee is a penalty, without these agreementsbut rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, as the case may be, 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. Notwithstanding anything to the contrary in this Agreement, the parties would not enter into payment of the Parent Termination Fee by Parent or the Guarantors pursuant to this Section 7.2 and the Limited Guarantees shall be the sole and exclusive remedy available to the Company, its Affiliates and its Subsidiaries against Parent, Merger Sub, the Guarantors and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents with respect to this Agreement and the transactions contemplated hereby, including for any loss suffered as a result of the failure of the Merger to be consummated, under any theory or for any reason, and upon payment of such amount in full by Parent, none of Parent, Merger Sub, the Guarantors or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided, however, that the Company shall also be entitled to payment of the amounts contemplated by Sections 5.10 and 7.2(d) of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Court Square Capital Partners II LP), Merger Agreement (Leever Daniel H)
Termination Fees. (a) [Reserved]Except as set forth in Section 5.3(h) and this Section 8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys’ fees, incurred in connection with the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust or competition law or regulation.
(b) In the event that:
If: (i) (1) This this Agreement shall have been is terminated by Parent or the Company pursuant to Section 8.1(b) or Section 8.1(d); (xii) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but hereof and at or prior to the earlier time of (x) the Company Meeting and (y) the termination of this Agreement (in the circumstances set forth case of Section 8.1(b)) or prior to the time of the Company Members’ Meeting (in clause the case of Section 8.1(d)), an Acquisition Proposal shall have been disclosed, announced, commenced, submitted (i)(1in the case of Section 8.1(d), publicly) above or made (in the case of Section 8.1(d), publicly); and (3iii) within twelve (12) 12 months after the date of any such termination, any transaction constituting any Company Alternative Proposal an Acquisition Transaction (whether or not related to such Acquisition Proposal) is consummated or a definitive agreement contemplating an agreement providing for any Acquisition Transaction (whether or not related to such Acquisition Proposal) is executed and subsequently consummated, then the Company Alternative Proposal is executedshall pay to Parent a non-refundable fee in the amount of $98,350,000 in cash (the “Termination Fee”); provided, thathowever, that for purposes of this clause “(ib)”, the references to “2015% or more” in the definition of “Company Alternative Proposal” Acquisition Transaction shall be deemed to be references to “50% or more”;40%.
(c) If this Agreement is terminated by: (i) Parent pursuant to Section 8.1(e); (ii) The by the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
8.1(h); or (iii) Parent shall have terminated if this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by Parent or the Company pursuant to any other provision of Section 8.1 at any time after the occurrence of a Triggering Event but prior to the Company Members’ Meeting, then (unless the Company is required to pay to Parent the fee referred to in Section 8.3(d)) the Company shall pay to Parent the Termination Fee.
(d) If this Agreement is terminated by Parent or the Company at any time after the Company Board Recommendation has been withdrawn or modified in accordance with clause “(ii)” of Section 5.2(d) but prior to the Company Members’ Meeting, then the Company shall pay to Parent a non-refundable fee in the amount of $131,140,000 in cash.
(e) Any fee required to be paid to Parent pursuant to Section 8.1(b)(iii8.3(b) [Failure to Obtain Company Stockholder Approval]; then, shall be paid by the Company shall, contemporaneously with the consummation of the Acquisition Transaction contemplated by Section 8.3(b). Any fee required to be paid to Parent pursuant to Section 8.3(c) or Section 8.3(d) shall be paid by the Company: (A) in the case of clause (i) abovea termination of this Agreement by the Company, upon at or prior to the earlier time of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (such termination; or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness termination of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) abovethis Agreement by Parent, within two (2) Business Days of business days after such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(df) The parties acknowledge Company acknowledges and agrees that the agreements covenants and obligations contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement Contemplated Transactions, and that, without these agreementscovenants and obligations, Parent would not have entered into this Agreement. Other than for Willful Breach of Section 4.3 or Section 5.2, the parties would not enter into agree that the payment of the Termination Fee (or the fee referred to in Section 8.3(d)), if paid by the Company and accepted by Parent, shall be the sole and exclusive monetary remedy available to Parent and Merger Sub with respect to this AgreementAgreement and the Merger and the other Contemplated Transactions in the event any such payment becomes due and payable, and, upon payment of the Termination Fee (or the fee referred to in Section 8.3(d)), the Acquired Companies (and their respective former, current or future officers, directors, partners, shareholders, managers, members, employees, Affiliates and Representatives) shall have no further liability to Parent, Merger Sub, Sponsor or their respective Affiliates under, arising out of or related to this Agreement or the Contemplated Transactions. In no event shall the Company be obligated to pay the Termination Fee (which for these purposes shall also include the fee payable pursuant to Section 8.3(d)) on more than one occasion.
(g) If the Company fails to pay when due any amount payable under this Section 8.3, then: (i) the Company shall reimburse Parent for all reasonable and documented out-of-pocket costs and expenses (including fees and disbursements of counsel) actually incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.3; and (ii) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum 300 basis points over the “prime rate” (as announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid.
(h) Any fee or other amount payable to Parent pursuant to this Section 8.3 shall be paid by the Company free and clear of all deductions and withholdings, except as required by applicable Legal Requirements.
Appears in 2 contracts
Samples: Merger Agreement, Agreement and Plan of Merger (Fortress Investment Group LLC)
Termination Fees. (a) [Reserved].
(bIf this Agreement is terminated by Parent or the Company pursuant to Section 10.01(d) In the event that:
and: (i) (1) This Agreement at or prior to the time of such termination an Acquisition Proposal shall have been terminated pursuant to disclosed, announced, commenced, submitted or made; and (xii) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or within 12 months after the date of this Agreement but prior any such termination, the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or any Acquisition Proposal is consummated (regardless of whether it is the same Acquisition Proposal), then the Company shall pay, or cause to be paid, to Parent, in cash at the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of time such termination, any transaction constituting any Company Alternative Proposal is consummated or an the time such definitive agreement providing for any Company Alternative Proposal is executed, a non-refundable fee in the amount of $20,625,000 (the “Termination Fee”); provided, thathowever, for purposes of this clause (i)ii) above, the all references to “20% or more15%” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “50% or more%.”;
(iib) The Company shall have terminated If this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or by: (i) Parent pursuant to Section 8.1(b)(iii10.01(f); (ii) [Failure by the Company pursuant to Obtain Section 10.01(g); or (iii) by the Company Stockholder Approval]; thenpursuant to Section 10.01(d) and the Company Board or any committee thereof made a Company Adverse Recommendation Change, then in each case, the Company shall, (A) in shall pay to Parent the Termination Fee. In the case of clause termination of this Agreement in the manner set forth in clauses (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) aboveof this Section 10.03(b), the Termination Fee shall be paid by or on behalf of the Company within two (2) Business Days after such termination; and in the case of termination of this Agreement in the manner set forth in clause (ii) of this Section 10.03(b), the Termination Fee shall be paid by the Company immediately prior to or concurrently with such termination.
(c) If this Agreement is terminated by:
(i) Parent pursuant to Section 10.01(d) and: (A) at the time of such termination, pay each of the Offer Conditions has been satisfied or waived in accordance with the terms of this Agreement (or cause other than (1) those Offer Conditions that by their nature are to be paidsatisfied immediately prior to the consummation of the Offer, but provided that those Offer Conditions would be satisfied if the time of the consummation of the Offer were the time of such termination, and (2) the condition set forth in clause (i) and/or (k) of Annex I); (B) at the time of such termination, the Financing is not available to Parent and Merger Sub; and (C) the failure of Parent and Merger Sub to receive the Financing or one the unavailability thereof is not attributable to a breach of any covenant or more obligation of its designeesthe Company contained in this Agreement; or
(ii) the Company Termination Feepursuant to Section 10.01(e) and: (A) Merger Sub’s failure to accept for payment and pay for the Shares in accordance with Section 2.01 within three (3) Business Days following delivery of the written notice required by Section 10.01(e)(ii) is not attributable to a breach of any covenant or obligation of the Company contained in this Agreement; and (DB) the Company shall have given Parent written notice at least three (3) Business Days prior to termination stating the Company’s intention to terminate this Agreement pursuant to Section 10.01(e) and its claims pursuant to this Section 10.03(c); then Parent shall pay to the Company, a non-refundable fee in the amount of $35,750,000 (the “Reverse Termination Fee”) at the time of such termination (in the case of clause (ivSection 10.03(c)(i)) above, or within two (2) Business Days after such termination if this Agreement is terminated by the Company.
(d) Each of such termination, pay the Company and Parent acknowledges and agrees that (or cause to be paid) Parent (or one or more of its designeesi) the No Vote Termination Fee; agreements contained in each case by wire transfer this Section 10.03, are an integral part of immediately available funds the Transactions, (ii) without these agreements, Parent, Merger Sub and the Company would not have entered into this Agreement and (iii) any amount payable pursuant to this Section 10.03 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, on the one hand, or more accounts designated by Parent; it being understood the Company, on the other hand, in the circumstances in which such amount is payable. The Parties acknowledge and agree that in no event shall the Company or Parent be required to pay the Termination Fee or Reverse Termination Fee, respectively, on more than one occasion. If: (i) the Company fails to pay when due any amount payable under this Section 10.03, then: (A) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 10.03; and (B) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to 300 basis points over the “prime rate” (as reported by Bloomberg L.P. on the date such overdue amount was originally required to be paid); and (ii) Parent fails to pay when due any amount payable under this Section 10.03, then: (A) Parent shall reimburse the Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 10.03; and (B) Parent shall pay to the Company interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the Company in full) at a rate per annum equal to 300 basis points over the “prime rate” (as reported in by Bloomberg L.P. on the date such overdue amount was originally required to be paid).
(e) Notwithstanding anything to the contrary contained in this Agreement, except in the case of a willful and material breach by the Company, Parent or Merger Sub (and subject to Section 10.03(d)), (i) if this Agreement is terminated under circumstances where the Termination Fee or the No Vote Reverse Termination Fee on more than one occasion andwould be payable pursuant to this Section 10.03, in the event payment by the Company or Parent of such Termination Fee becomes payable to Parent following payment of the No Vote or Reverse Termination Fee, the amount of the No Vote Termination Fee actually paid as applicable, shall be credited the sole and exclusive remedy of Parent and its Related Persons, and the Company and its Related Persons, respectively, against the Company or Parent and their respective Representatives and Affiliates, as applicable, for (A) any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement (including relating to the Financing), (ii) in no event will Parent or any other Person being paid the Termination Fee. Following receipt by Parent , or the Company or any other Person being paid the Reverse Termination Fee, seek to recover any other money damages or seek any other remedy (including any remedy for specific performance, except solely in compliance with Section 11.11) based on a claim in law or one equity with respect to, (A) any loss suffered, directly or more of its designees) indirectly, as a result of the Company failure of the Merger or the Offer to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement (including relating to the Financing), and (iii) upon payment of any Termination Fee or the No Vote Reverse Termination Fee in accordance with this Section 8.3(b)10.03, none of the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or any Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment Representatives of the No Vote Company, in the case of the Termination Fee, and none of Parent or any Affiliates or Representatives of Parent, in the case of the Reverse Termination Fee, shall have any further liability or obligation to pay (another Party relating to or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part arising out of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)
Termination Fees. (a) [Reserved]This Agreement may be terminated in accordance with the next two sentences. This Agreement may be terminated by (i) by mutual agreement of the parties at any time, (ii) by either party if the Stockholder Approval is not obtained on or prior to the seventh month anniversary of the date hereof, or (iii) by either party, if the Company's stockholders vote against this Agreement and the transactions contemplated hereby at the Stockholders' Meeting. Termination pursuant to the foregoing clauses (i), (ii) or (iii) notwithstanding, Sections 3, 4, (for the purposes of Section 9.1), 5, 6.4, 8 and 9 hereof shall remain in effect. No termination of this Agreement shall affect any party's liability for willful breach of this Agreement.
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) Purchaser in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause accordance with clauses (ii) above, concurrently withor (iii) of Section 9.4(a), and the Purchaser shall have voted in favor of this Agreement and the transactions contemplated hereby at the Stockholders' Meeting, all securities of the Company held by it (and eligible to vote, it being understood that the Purchaser shall have no obligation to exercise any Warrants) as a condition to of the effectiveness record date for such Stockholders' Meeting, on the day next succeeding the date of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; shall (Cx) reimburse the Purchaser in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall for the Company be required to pay out-of-pocket expenses of the Company Termination Fee or the No Vote Termination Fee on more than one occasion andPurchaser (including, in the event the Company Termination Fee becomes without limitation, printing fees, filing fees and fees and expenses of its legal and financial advisors and all fees and expenses payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designeesany financing sources) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect related to this Agreement or the other Documents, the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or hereby and thereby and any other Person, other than in respect of Willful related financing and Material Breach of this Agreement or Fraud or, (y) pay to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) Purchaser in immediately available funds an amount equal to the Company Termination Fee less the No Vote Termination Fee$1,000,000.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Royal Ahold), Purchase Agreement (Peapod Inc)
Termination Fees. (a) [Reserved].
(b) In the event thatIf:
(i) (1) This Parent terminates this Agreement shall have been terminated pursuant to clauses (xi) or (iii) of Section 8.1(b)(i7.1(g);
(ii) [End Date]Company terminates this Agreement pursuant to Section 7.1(h); or
(iii) Parent or Company terminates this Agreement pursuant to Section 7.1(b) or Section 7.1(d) or Parent terminates this Agreement pursuant to clause (ii) of Section 7.1(g) and, in the case of such termination, (yA) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or at any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or time after the date of this Agreement but and prior to such termination an Acquisition Proposal shall have been publicly announced or otherwise publicly communicated to the Company Board or shareholders of Company and not publicly withdrawn (such Acquisition Proposal, the “Outstanding Proposal”) and (B) prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within date that is twelve (12) months after the effective date of such termination, any transaction constituting any Company Alternative enters into a definitive agreement with respect to the Outstanding Proposal and the Outstanding Proposal is subsequently consummated (whether or an agreement providing for any Company Alternative Proposal is executednot such consummation occurs within such twelve-month period); provided, that, for purposes of this clause (i), the provided that references to “20% or moremore than fifteen percent (15%)” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “more than fifty percent (50% or more%)”;
(ii) The , then Company shall have terminated this Agreement pursuant pay to Section 8.1(c)(ii) [Company Superior Proposal];
Parent a termination fee equal to $9,000,000 (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the “Company Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated in writing by Parent; it being understood that , (x) in the case of termination pursuant to clause (i) above, within two (2) Business Days of the date of such termination, (y) in the case of clause (ii) above, concurrently with or prior to the date of such termination and (z) in the case of clause (iii) above, not later than the second Business Day following the date on which Company consummates the transaction with respect to the Outstanding Proposal.
(b) In no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event whether or not the Company Termination Fee becomes may be payable to Parent following payment at the same or at different times and/or based upon the occurrence of different events.
(c) In the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against circumstances in which the Company Termination Fee. Following Fee is paid in accordance with Section 7.3(a), Parent’s receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee from Company pursuant to Section 7.3(a) shall, subject to Section 7.3(d), be deemed to be liquidated damages and not a penalty; provided, however, that nothing in accordance with this Section 8.3(b)7.3(c) shall limit the rights of Parent, the Merger Sub or Company under Section 8.11 and in no event shall have no further a party’s liability with respect to this Agreement for fraud or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful willful and Material Breach material breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedso limited.
(d) The parties acknowledge that the agreements contained in this Section 8.3 7.3 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 Company fails to promptly pay the amount due pursuant to Section 7.3(a) and, to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against Company for the amount set forth in Section 7.3(a), then Company shall pay Parent’s or Merger Sub’s reasonable costs and expenses (including reasonable attorneys’ fees) in connection with such suit. All amounts payable pursuant to this Section 7.3(d) shall accrue interest at the prime lending rate published in the Wall Street Journal and in effect on the date of payment, with such interest being payable in respect of the period from the date that payment was originally required to be made pursuant to Section 7.3(a) through the date of payment.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated or deemed terminated as described in Section 7.3(a), Parent’s receipt of the Company Termination Fee pursuant to Section 7.3(a) shall, subject to Section 7.3(d), be the sole and exclusive remedy of Parent, Merger Sub and their respective Affiliates against Company, its Subsidiaries and any of their respective former, current, or future shareholders, directors, officers, Affiliates or agents for any loss or damages suffered as a result of any breach of any representation, warranty, covenant or agreement or the failure of the Merger to be consummated; provided, however, that nothing in this Section 7.3(e) shall limit the rights of Parent, Merger Sub or Company under Section 8.11 and in no event shall a party’s liability for fraud or willful and material breach of this Agreement be so limited.
Appears in 2 contracts
Samples: Merger Agreement (Journal Media Group, Inc.), Merger Agreement (Gannett Co., Inc.)
Termination Fees. (a) [Reserved].
(b) In the event thatIf, but only if, this Agreement is terminated by:
(i) (1) This Agreement shall have been terminated Parent pursuant to Section 8.1(d)(i) (but only if the breach giving rise to such termination under Section 8.1(d)(i) was an intentional breach), or either Parent or the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii)(A), and in either such case (x) Section 8.1(b)(i) [End Date], prior to such termination (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced Stockholders’ Meeting in the case of termination pursuant to Section 8.1(b)(iii)(A)), a Company Alternative Competing Proposal that has been made on or after the date of this Agreement but shall have been publicly disclosed and not withdrawn prior to the earlier of (x) the Company Meeting such date and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of after such termination, any transaction constituting any the Company Alternative enters into a definitive agreement with respect to a Competing Proposal with a Third Party, and such Competing Proposal is subsequently consummated (regardless of whether such consummation happens prior to or an agreement providing for any Company Alternative Proposal is executed; following such twelve (12)-month period) (provided, thathowever, that for purposes of this clause (iSection 8.3(a)(i), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 8.1(d)(ii), then, in any such case, the Company shallshall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 8.3(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (Ax) in the case of clause (i) above, upon on the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) same day as the consummation of any Company Alternative Proposalthe transaction contemplated therein, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (By) in the case of clause (ii) above, immediately prior to or substantially concurrently with, with such termination and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (Cz) in the case of clause (iii) above, within two promptly, but in no event later than three (23) Business Days after the date of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion.
(c) Notwithstanding anything to the contrary set forth in this Agreement, in the event but subject to Section 9.9, Parent’s right to receive payment from the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this pursuant to Section 8.3(b8.3(a), shall constitute the sole and exclusive monetary remedy of Parent and Acquisition Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Company Related Parties”) and any Financing Source for all losses and damages suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amounts, none of the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein hereby (except that the Company shall also be obligated with respect to Parent or its Subsidiaries or Affiliates or any other PersonSection 8.3(d) and Section 8.6).
(d) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent (ii) the Company Termination Fee becomes is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee or expenses are payable to Parent following payment 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 No Vote Termination Feeconsummation of the transactions contemplated hereby, any obligation which amount would otherwise be impossible to pay calculate with precision, and (or cause to be paidiii) an amount equal to without these agreements, the Company Termination Fee less the No Vote Termination Fee.
(c) If parties would not enter into this Agreement; accordingly, if the Company fails to timely pay an any amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the other for the payment of any amount set forth in this Section 8.3, the Company shall pay Parent its costs and expenses in connection with such suit, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by Applicable Law.
(de) The parties acknowledge that Notwithstanding anything to the agreements contrary contained herein, the Company (solely on behalf of itself) (i) waives any rights or claims and (ii) agrees not to commence any Proceeding, in each case against any Financing Source in connection with this Section 8.3 are an integral part Agreement, the Debt Financing or in respect of any other document or any of the transactions contemplated hereby or thereby or any theory of law or equity (whether in tort, contract or otherwise) or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith and agrees to cause any such Proceeding caused by the Company (solely on behalf of itself) to be dismissed and otherwise terminated. In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Financing Source shall have any liability for any claims or damages to the Company, its Subsidiaries or any Company Related Party in connection with this Agreement and that, without these agreementsAgreement, the parties would not enter into Debt Financing or the transactions contemplated hereby or thereby; provided, that nothing herein to the contrary shall prohibit Parent from enforcing its rights directly against the Financing Sources under the Debt Financing or causing the Financing Sources to fund (including by seeking specific performance thereunder) pursuant to the Debt Financing (and Parent agrees to do so consistent with its covenants and obligations in this Agreement).
Appears in 2 contracts
Samples: Merger Agreement (Crescent Capital BDC, Inc.), Merger Agreement (Alcentra Capital Corp)
Termination Fees. (a) [Reserved].
(b) In If, but only if, the event thatAgreement is terminated by:
(i) (1x) This Agreement shall have been terminated either Parent or the Company pursuant to (x) Section 8.1(b)(i) [End Date], (y) or Section 8.1(b)(iii), or by Parent pursuant to Section 8.1(d)(i), Section 8.1(d)(ii)(x) [Failure to Obtain Company Stockholder Approval] or (zSection 8.1(d)(ii)(z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in Company (A) receives or has received a Competing Proposal from a Third Party after the circumstances set forth in clause (i)(1) above date hereof, which Competing Proposal becomes publicly known, and (3B) within twelve (12) months of the termination of this Agreement, enters into, agrees to or consummates a transaction regarding such terminationCompeting Proposal or any Competing Proposal, any then the Company shall pay, or cause to be paid, to Parent an amount equal to Three Hundred Thirty Dollars ($330,000) (the “Termination Fee”), not later than the third (3rd) Business Day following the execution of the agreement relating to such transaction constituting any Company Alternative arising from such Competing Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; (provided, thathowever, that for purposes of this clause (iSection 8.1(c)(ii), the references to “20% or moretwenty-five percent (25%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “fifty percent (50% or more%)”;); or
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then8.1(d)(ii)(y), then the Company shallshall pay, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid, to Parent the Termination Fee;
(b) Parent Notwithstanding anything to the contrary set forth in this Agreement:
(or one or more of its designeesi) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion occasion; and
(ii) the parties agree that the Termination Fee shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law.
(c) Notwithstanding anything to the contrary set forth in this Agreement, in the event but subject to Section 9.9, Parent’s right to receive payment from the Company of the Termination Fee becomes payable pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited and Merger Sub against the Company Termination Fee. Following receipt and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by Parent (this Agreement to be consummated or one for a breach or more failure to perform hereunder or otherwise, and upon payment of its designees) such amount, none of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay thereby (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, except that the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required also be obligated with respect to be made plus 3% per annum through the date such payment is actually receivedSection 8.3(d)).
(d) The Each of the parties acknowledge hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and thatin 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, and (iii) without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Thestreet, Inc.), Merger Agreement (theMaven, Inc.)
Termination Fees. (a) [Reserved].
(bIf this Agreement is terminated by either the Company or Parent pursuant to Section 9.1(b)(i) In or Section 9.1(b)(iii) or by Parent pursuant to Section 9.1(c), and, after the event that:
date hereof and prior to the termination of this Agreement, the Company (i) (1) This Agreement shall have been terminated pursuant receives or has received an Acquisition Proposal with respect to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have Company Subsidiary that has been publicly disclosed announced or announced otherwise communicated to the Company Board prior to the time of the Company Stockholder Meeting (with respect to a Company Alternative Proposal made on termination under Section 9.1(b)(i)) or after prior to the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1with respect to a termination under Section 9.1(b)(iii) above or Section 9.1(c)), and (3ii) within before the date that is twelve (12) months after the date of such terminationtermination of this Agreement, any transaction constituting any Company Alternative or series of related transactions included within the definition of an Acquisition Proposal is consummated or the Company or a Company Subsidiary enters into an agreement providing for any Acquisition Agreement that is later consummated, then the Company Alternative shall pay, or cause to be paid, to Parent, subject to the provisions of Section 9.4(a), the Termination Fee by wire transfer of same day funds to an account designated by Parent, not later than the consummation of such transaction arising from such Acquisition Proposal is executedor such executed Acquisition Agreement; provided, thathowever, that for purposes of this clause (iSection 9.3(a), the references to “20% or more%” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “50% or more%.”;
(iib) The Company shall have terminated If this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by (i) the Company pursuant to Section 9.1(e) or (ii) Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 9.1(f), then, in each case, the Company shallshall pay, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent , to Parent, subject to the provisions of Section 9.4(a), the Termination Fee by wire transfer of same day funds to an account designated by Parent, either prior to or concurrently with the occurrence of such termination (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (iiSection 9.1(e)) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay termination (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause Section 9.1(f)).
(ivc) aboveNotwithstanding anything to the contrary set forth in this Agreement, within two the Parties agree that:
(2i) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in under no event circumstances shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion occasion; and,
(ii) if this Agreement is terminated under circumstances in the event which the Company is required to pay the Termination Fee becomes payable pursuant to Section 9.3(a) or Section 9.3(b) and the Termination Fee is paid to Parent following (or its designee), the payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall will be credited the Parent Parties’ sole and exclusive remedy against the Company Termination Fee. Following receipt by Parent (Parties arising out of or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect relating to this Agreement Agreement, except in the case of Fraud or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of a Willful and Material Breach of this Agreement or Fraud or, to the extent by any of the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedParties.
(d) The parties acknowledge Each of the Parties hereto acknowledges that (i) the agreements contained in this Section 8.3 9.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such amounts are due and payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and thatin reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amounts would otherwise be impossible to calculate with precision, and (iii) without these agreements, the parties Parent would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 9.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 9.3, such that the Company shall pay Parent its costs and expenses in connection with such suit, together with interest on such amount at the annual rate of the prime rate as published in The Wall Street Journal, Eastern Edition on the date of payment for the period from the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (CatchMark Timber Trust, Inc.), Merger Agreement (Potlatchdeltic Corp)
Termination Fees. (a) [Reserved].
(b) In the event thatIf:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier termination of this Agreement, any Competing Proposal (xfor purposes of this subsection, substituting 50% for the 15% thresholds set forth in the definition of Competing Proposal) the Company Meeting is publicly proposed or publicly disclosed and not publicly withdrawn and (y) the termination of this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) (but in the circumstances set forth in clause (i)(1case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 8.1(b)) above or by Parent pursuant to Section 8.1(e) and (3z) within twelve (12) months after termination of such terminationthis Agreement, the Company enters into any transaction constituting any Company Alternative Proposal is consummated letter of intent, agreement in principle, acquisition agreement or an other definitive agreement providing for any Company Alternative Competing Proposal is executedor a transaction in respect of any Competing Proposal shall have been consummated; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;or
(ii) The Company shall have terminated this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii) [Company Superior Proposal];8.1(g); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]8.1(h); then, then in any such event the Company shallshall pay to Parent a fee payable in cash equal to $55,000,000 (the “Company Termination Fee”), and neither the Company nor any other person shall (Asubject to the provisions of Section 8.2) have any further liability to Parent or any other person with respect to this Agreement or the transactions contemplated hereby, such payment to be made (x) in the case of clause (i) aboveSection 8.3(a)(i), upon at the earlier of (xA) when the execution Company enters into a letter of an intent, agreement in principle, acquisition agreement or other definitive agreement providing for any Company Alternative a transaction in respect of such Competing Proposal and or (B) when a transaction in respect of such Competing Proposal is consummated; (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) aboveSection 8.3(a)(ii), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within no later than two (2) Business Days after the termination of such termination, pay this Agreement or (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (Dz) in the case of clause (iv) aboveSection 8.3(a)(iii), within two (2) Business Days upon the termination of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parentthis Agreement; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee fee referred to in this Section 8.3 on more than one occasion and, in the event occasion.
(b) If this Agreement is terminated by the Company Termination Fee becomes payable pursuant to Parent following payment Section 8.1(b), Section 8.1(d), Section 8.1(i)(ii), Section 8.1(i)(iii), or Section 8.1(j) and immediately prior to such termination (i) all of the No Vote Termination FeeOffer Conditions and the condition set forth in Section 7.1(b) have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Offer Closing or the Closing, provided that such conditions are reasonably capable of being satisfied) and the Company is prepared to complete the Offer Closing and the Closing and (ii) Parent and Acquisition Sub have failed to complete the Offer Closing or the Closing by the respective date the Offer Closing or the Closing is required to have occurred pursuant to this Agreement as a result of the full amount of the No Vote Termination Fee actually paid Debt Financing failing to be funded or prospectively funded at the Offer Closing or the Closing (clauses (i) and (ii) collectively, a “Funding Failure”), then Parent shall be credited against pay to the Company a fee payable in cash equal to $90,000,000 (the “Parent Termination Fee. Following receipt by ”), and neither Parent nor any other person shall (or one or more subject to the provisions of its designeesSection 8.2) of have any further liability to the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability any other person with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personhereby, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through no later than two (2) Business Days after the date such payment is actually received.
(d) The parties acknowledge termination of this Agreement; it being understood that in no event shall Parent be required to pay the agreements contained fee referred to in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreementon more than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (Valassis Communications Inc), Merger Agreement (Harland Clarke Holdings Corp)
Termination Fees. (a) [Reserved].
(b) In the event thatIf, but only if, this Agreement is terminated by:
(i) (1) This Agreement shall have been terminated Parent pursuant to Section 8.1(d)(i) (but only if the breach giving rise to such termination under Section 8.1(d)(i) was a willful breach), or either Parent or the Company pursuant to Section 8.1(b)(iii)(A), and in either such case (x) Section 8.1(b)(i) [End Date], prior to such termination (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced Stockholders’ Meeting in the case of termination pursuant to Section 8.1(b)(iii)(A)), a Company Alternative Competing Proposal that has been made on or after the date of this Agreement but shall have been publicly disclosed or otherwise communicated to the Company’s Board of Directors and not withdrawn prior to the earlier of (x) the Company Meeting such date and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of after such termination, the Company enters into a definitive acquisition agreement with respect to any transaction constituting any Company Alternative Competing Proposal with a Third Party, and such Competing Proposal is subsequently consummated (regardless of whether such consummation happens prior to or an agreement providing for any Company Alternative Proposal is executed; following such twelve (12)-month period) (provided, thathowever, that for purposes of this clause (iSection 8.3(a)(i), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 8.1(d)(ii), then, in any such case, the Company shallshall pay, or cause to be paid, to Parent the Company Termination Fee and the Expenses actually incurred by Parent and the Parent External Adviser. Any payments required to be made under this Section 8.3(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (Ax) in the case of clause (i) above, upon on the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) same day as the consummation of any Company Alternative Proposalthe transaction contemplated therein, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (By) in the case of clause (ii) above, immediately prior to or concurrently with, with such termination and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (Cz) in the case of clause (iii) above, within two promptly, but in no event later than three (23) Business Days after the date of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion.
(c) Notwithstanding anything to the contrary set forth in this Agreement, in the event but subject to Section 9.9, Parent’s right to receive payment from the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee and Expenses pursuant to Section 8.3(a) shall constitute the sole and exclusive monetary remedy of Parent, the Parent External Adviser and Acquisition Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the No Vote Termination Fee “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder or otherwise following a termination of this Agreement in accordance with this Section 8.3(b), its terms in a situation in which the Company Termination Fee and Expenses are required to be paid, and upon payment of such amounts, none of the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein hereby (except that the Company shall remain obligated to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach comply with the provisions of this Agreement or Fraud orthat survive termination pursuant to Section 8.3(d)).
(d) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, to the extent (ii) the Company Termination Fee becomes and Expenses are not a penalty, but are liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee and expenses are payable to Parent following payment 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 No Vote Termination Feeconsummation of the transactions contemplated hereby, any obligation which amount would otherwise be impossible to pay calculate with precision, and (or cause to be paidiii) an amount equal to without these agreements, the Company Termination Fee less the No Vote Termination Fee.
(c) If parties would not enter into this Agreement; accordingly, if the Company fails to timely pay an any amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 8.3, the Company shall pay Parent its reasonable costs and expenses in connection with such suit, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by Applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Barings BDC, Inc.), Merger Agreement (Sierra Income Corp)
Termination Fees. (a) [Reserved].
(bi) In the event that:
that (iA) (1) This Agreement Parent shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii7.1(g) [or (B) this Agreement shall be terminated pursuant to Section 7.1(b) or 7.1(d) and, at or prior to such termination, there shall exist or have been proposed a Company Superior Proposal];Acquisition Proposal (as defined in Section 5.4(b)) then, promptly after such termination, the Company shall pay to Parent $2,000,000 in cash (the "TERMINATION FEE"), provided, however, that such Termination Fee shall not be due until the earlier to occur of (C) one hundred eighty (180) days after the signing of a definitive agreement in connection with a Company Acquisition Transaction or (D) the closing of a Company Acquisition Transaction.
(iiiii) In the event that Parent shall have terminated terminate this Agreement pursuant to Section 8.1(d)(i) [7.1(f), then Company Change shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("PARENT'S EXPENSES"), and if, within twelve months of Recommendation]; or
(iv) This Agreement is terminated by the such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain any Company Stockholder Approval]; thenAcquisition involving Company shall be consummated, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) then concurrently with the execution of an a definitive agreement providing for any Company Alternative Proposal and (y) with respect to, or the consummation of any of, as applicable, such Company Alternative ProposalAcquisition, then Company shall pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition cash equal to the effectiveness amount by which the Termination Fee exceeds the amount of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Parent's Expenses previously reimbursed by Company Termination Fee; (C) in the case of clause pursuant hereto.
(iii) aboveThe Company acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, within two (2) Business Days of such terminationand that, pay (or cause to be paid) without these agreements, Parent (or one or more of its designees) would not enter into this Agreement; accordingly, if the Company Termination Fee; and (Dfails to deliver in a timely manner the amounts due pursuant to this Section 7.3(b) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable order to obtain such payment, Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited makes a claim that results in a judgment against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of for the Company Termination Fee or the No Vote Termination Fee amounts set forth in accordance with this Section 8.3(b7.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein pay to Parent or its Subsidiaries or Affiliates or any other Personcosts and expenses (including attorneys' fees and expenses) in connection with such suit, other than together with interest on the amounts set forth in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount 7.3(b) at the prime rate as published in The Wall Street Journal of Citibank, N.A. in effect on the date such payment was required to be made plus 3made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "COMPANY ACQUISITION" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than 70% per annum through of the date aggregate equity interests in the surviving or resulting entity of such payment is actually receivedtransaction, (ii) a sale or other disposition by the Company of assets representing in excess of 30% of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 30% of the voting power of the then outstanding shares of capital stock of the Company.
(div) In the event that (A) Company shall terminate this Agreement pursuant to Section 7.1(e) or (B) this Agreement is terminated pursuant to Section 7.1(d), then Parent shall promptly reimburse Company for Company's costs and expenses in connection with this Agreement and the transactions contemplated hereby.
(v) In the event that (A) this Agreement shall be terminated pursuant to Section 7.1(b) or 7.1(d) and, at or prior to such termination, there shall exist or have been proposed a Parent Acquisition Proposal (as defined below), or (B) Company shall terminate this Agreement pursuant to Section 7.1(e) for breach by Parent of any covenant set forth in Sections 4.2, 5.1, 5.2, 5.14, 5.15, 5.16 or 5.18 hereof, and if, within twelve months of any termination described in (A) or (B) above, Parent shall enter into a definitive agreement with respect to any Parent Acquisition (as defined below), then upon the earlier to occur of one hundred eighty (180) days after the execution of a definitive agreement with respect to, or the consummation of, as applicable, any Parent - 47 - 52 Acquisition, Parent shall pay to the Company $2,000,000 in cash (the "PARENT TERMINATION FEE") less any Company Expenses previously reimbursed by Parent pursuant hereto.
(vi) The parties acknowledge Parent acknowledges that the agreements contained in this Section 8.3 7.3(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the parties Company would not enter into this Agreement; accordingly, if Parent fails to deliver in a timely manner the amounts due pursuant to this Section 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Parent for the amounts set forth in this Section 7.3(b), Parent shall pay to the Company its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "PARENT ACQUISITION" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Parent pursuant to which the shareholders of Parent immediately preceding such transaction hold less than 70% of the aggregate equity interests in the surviving or resulting entity of such transaction, (ii) a sale or other disposition by Parent of assets representing in excess of 30% of the aggregate fair market value of Parent's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Parent), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 30% of the voting power of the then outstanding shares of capital stock of the Parent. For purposes of this Agreement, "PARENT ACQUISITION PROPOSAL" shall mean any offer or proposal relating to any Parent Acquisition.
Appears in 2 contracts
Samples: Merger Agreement (Healthcare Com Corp), Merger Agreement (Xcarenet Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This this Agreement shall have been is terminated pursuant to Section 8.1(c)(i) (xas a result of the failure of the Minimum Condition) or Section 8.1(b)(i8.1(e) [End Date](provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 8.1(e)), (yB) Section 8.1(b)(iiiprior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) [Failure to Obtain within one hundred eighty (180) days after such termination, the Company Stockholder Approval] consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (zother than Parent of an 44 Affiliate thereof) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the sale of more than fifteen percent (15%) (in voting power) of the voting securities of the Company or any other Person shall have publicly disclosed the sale of fifteen percent (15%) or announced a more (in fair market value) of the assets of the Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of Person making such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Acquisition Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement is terminated pursuant to Section 8.1(c)(ii) [Company Superior Proposal];); or
(iii) Parent shall have terminated this Agreement is terminated pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 8.1(g), then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3event, the Company shall pay Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $1,250,000 (the "Termination Fee") plus Parent's actual out-of-pocket expenses incurred in connection with the Transactions, which amounts shall be payable in immediately available funds.
(b) Except as set forth in this Section 8.3, all costs and expenses incurred in connection with this Agreement and the Transactions (including reasonable attorneys' fees and expenses) shall be paid by the party incurring such expenses, whether or not any Transaction is consummated.
(c) In the event that the Company shall fail to pay all or any portion of the Termination Fee, the Company also shall pay to Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect unpaid amount, commencing on the date that such payment was required amount becomes due, at a rate equal to be made the rate of interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus 3% per annum through the date such payment is actually receivedtwo percent (2%).
(d) The parties acknowledge that If paid, the agreements contained Termination Fee and expenses provided for in this Section 8.3 are an integral part intended to be the sole and exclusive remedy with respect to any liability for a breach of the transactions contemplated by this Agreement by the Company (other than a willful and that, without these agreements, material breach of this Agreement by the parties would not enter into this AgreementCompany).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1) This (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) (End Date) and, at the time of such termination, any of the conditions set forth in Section 7.01(b) (Required Approvals) (other than with respect to any Additional Approval), Section 7.03(d) (Absence of Burdensome Condition) (other than with respect to any Additional Approval) or, in connection with the Required Approvals other than any Additional Approval, Section 7.01(c) (No Legal Restraints) shall have not been satisfied, (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (Legal Restraint) (if, and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Approvals other than any Additional Approvals) or (C) the Company terminates this Agreement pursuant to Section 8.01(c)(ii) (Parent Terminable Breach) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a) (Company Shareholder Approval), Section 7.01(c) (No Legal Restraints) (only in the case of clauses (A) and (C), and other than Legal Restraints arising in connection with the Required Approvals other than any Additional Approvals), Section 7.03(a) (Company Representations and Warranties), Section 7.03(b) (Company Covenants) and Section 7.03(c) (No Company MAE) shall have been terminated pursuant satisfied or waived (except for (I) those conditions that by their nature are to (x) Section 8.1(b)(i) [End Date]be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination, (yII) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] other than in the case of a termination in accordance with the foregoing clause (A), those other conditions that are still capable of being satisfied or (zIII) Section 8.1(d)(ii) [Company Breach those conditions that have not been satisfied as a result of Reps and Warranties a breach of this Agreement by Parent or Covenants]Merger Sub), or (2) the Company terminates this Agreement pursuant to Section 8.01(c)(iii) (Parent Failure to Close), then Parent shall pay to the Company the Parent Termination Fee. Parent shall pay the Parent Termination Fee to the Company (to an account designated in writing by the Company) prior to or any other Person shall have publicly disclosed concurrently with such termination of this Agreement by Parent or announced a Company Alternative Proposal made on or no later than three (3) Business Days after the date of the applicable termination by the Company.
(ii) If the Company terminates this Agreement but pursuant to Section 8.01(c)(i) (Superior Company Proposal) or Parent terminates this Agreement pursuant to Section 8.01(d)(i) (Company Adverse Recommendation Change), the Company shall pay to Parent the Company Termination Fee. The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to the earlier of (x) the Company Meeting and (y) the or concurrently with such termination of this Agreement by the Company pursuant to Section 8.01(c)(i) or no later than three (3) Business Days after the date of such termination of this Agreement by Parent pursuant to Section 8.01(d)(i).
(iii) If (1) either (A) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) (End Date) (but only if the Parent Termination Fee is not also payable under Section 8.02(b)(i) above) or Section 8.01(b)(iii) (No Company Shareholder Approval) or (B) Parent terminates this Agreement pursuant to Section 8.01(d)(ii) (Company Terminable Breach), (2) a Company Takeover Proposal shall have been publicly disclosed or made to the Company after the date hereof, and not publicly withdrawn, (x) in the circumstances set forth case of a termination pursuant to Section 8.01(b)(i) (End Date) or Section 8.01(d)(ii) (Company Terminable Breach), prior to the date of such termination, or (y) in clause the case of a termination pursuant to Section 8.01(b)(iii) (i)(1) above No Company Shareholder Approval), prior to the date of the Company Shareholders Meeting, and (3) within twelve (12) months after the termination of such terminationthis Agreement, any transaction constituting the Company shall have entered into any Company Alternative Proposal is Acquisition Agreement, or consummated or an agreement providing for any Company Alternative Proposal is executed; providedTakeover Proposal, that, for then the Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) within three (3) Business Days after the earlier of the date the Company enters into such Company Acquisition Agreement or consummates such transaction. For purposes of this clause (i3) of this Section 8.02(b)(iii), the references term “Company Takeover Proposal” shall have the meaning assigned to “20% or more” such term in Section 5.03, except that the applicable percentage in the definition of “Company Alternative Takeover Proposal” shall be deemed to be references to “5050.1%” rather than “20% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (El Paso Electric Co /Tx/), Company Takeover Proposal
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 7.1(h), then the Company shall pay to Parent $48 million concurrently with any such termination.
(b) If this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then7.1(j), then the Company shallshall pay to Parent $48 million as promptly as possible (but in any event within three business days) thereafter.
(c) If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d), then the Company shall pay to Parent $24 million (A) unless prior to such termination the Company Board shall have effected a Company Change of Recommendation, in which event the Company shall pay to Parent $48 million), in the case of clause (i) abovea termination by the Company, upon the earlier of (x) the execution of an agreement providing for concurrently with any Company Alternative Proposal such termination, and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause a termination by Parent, as promptly as possible (but in any event within three business days) thereafter.
(d) If (i) prior to the termination of this Agreement, any Alternative Proposal (substituting 50% for the 20% threshold set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”) is publicly proposed or publicly disclosed prior to, and not withdrawn at the time of, the Company Stockholders’ Meeting, (ii) abovethis Agreement is terminated by Parent or the Company pursuant to Section 7.1(d) and (iii) concurrently with or within twelve months after such termination the Company enters into a definitive agreement with respect to, concurrently withor otherwise consummates, and any Qualifying Transaction, then the Company shall pay to Parent $48 million (less any amounts paid by the Company to Parent pursuant to Section 7.2(c)) as a condition promptly as possible (but in any event within three business days) thereafter.
(e) If (i) prior to the effectiveness termination of such terminationthis Agreement, pay any Qualifying Transaction shall have been publicly proposed or publicly disclosed with respect to the Company, (ii) this Agreement is terminated by Parent or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; pursuant to Section 7.1(b) or terminated by Parent pursuant to Section 7.1(g) (Cby reason of an intentional breach or intentional failure to perform in any material respect any covenants or other agreements contained in this Agreement) and (iii) concurrently with or within twelve months after such termination the Company enters into a definitive agreement with respect to, or otherwise consummates, any Qualifying Transaction, then the Company shall pay to Parent $48 million as promptly as possible (but in any event within three business days) thereafter.
(f) If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(e), then Parent shall pay to the Company $51 million (unless prior to such termination the Parent Board shall have effected a Parent Change of Recommendation, in which event Parent shall pay to the Company $102 million), in the case of clause (iii) abovea termination by Parent, within two (2) Business Days of concurrently with any such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause a termination by the Company, as promptly as possible (ivbut in any event within three business days) abovethereafter.
(g) If this Agreement is terminated by the Company pursuant to Section 7.1(i), then Parent shall pay to the Company $102 million as promptly as possible (but in any event within two three business days) thereafter.
(2h) Business Days of such terminationAny amounts payable by a party pursuant Section 7.2(a), pay 7.2(b), 7.2(c), 7.2(d), 7.2(e), 7.2(f) or 7.2(g) (or cause to be paid) Parent (or one or more of its designees) the No Vote each a “Termination Fee; in each case ” and, collectively, the “Termination Fees”) or pursuant to Section 7.2(i) shall be paid by wire transfer of immediately available funds to one or more accounts an account designated in writing by Parent; it being understood that in no event shall the Company be required other party to pay the Company which such Termination Fee or the No Vote is to be paid. Upon payment of a Termination Fee on more than one occasion andby a party, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company such party shall have no further liability to the other party or its stockholders with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, hereby (other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (any amounts payable pursuant to Section 7.2(i) and, in the case of the Company, the obligation to pay the Termination Fee set forth in Section 7.2(d) if the circumstances provided for in such Section shall apply); provided that nothing herein shall release any party from liability for intentional breach, for fraud or cause to be paid) an amount equal to as provided for in the Confidentiality Agreement. The parties acknowledge and agree that in no event shall the Company or Parent, as applicable, be required to pay more than one Termination Fee less (other than, in the No Vote case of the Company, the obligation to pay the Termination FeeFee set forth in Section 7.2(d) if the circumstances provided for in such Section shall apply).
(ci) If In the Company fails event that either party shall fail to timely pay an amount when due any Termination Fee required to be paid by it pursuant to this Section 8.37.2, such Termination Fee shall accrue interest for the Company shall pay Parent interest period commencing on the date such amount Termination Fee became past due, at a rate equal to the sum of (x) the prime lending rate prevailing during such period as published in The Wall Street Journal in effect plus (y) 5%, calculated on a daily basis until the date of actual payment. In addition, if either party shall fail to pay such payment was required Termination Fee when due, such owing party shall also pay to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part owed party all of the transactions contemplated by this Agreement owed party’s costs and thatexpenses (including reasonable attorneys’ fees), without these agreementsas applicable, the parties would not enter into this Agreementin connection with efforts to collect such amounts.
Appears in 2 contracts
Samples: Merger Agreement (Pulte Homes Inc/Mi/), Merger Agreement (Centex Corp)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1A) This either the Parent or the Company terminates this Agreement shall have been terminated pursuant to (xSection 8.01(b)(i) Section 8.1(b)(i) [End Date]and, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) at the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months time of such termination, any transaction constituting of the conditions set forth in Section 7.01(c) or Section 7.01(d) shall have not been satisfied and such failure to be satisfied arises solely in connection with the Company Required Statutory Approvals or the Parent Required Statutory Approvals, (B) either the Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if, and only if, the applicable Legal Restraint giving rise to such termination arises solely in connection with the Company Required Statutory Approvals or the Parent Required Statutory Approvals) or (C) if the Company terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in the case of each of clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01 and Section 7.02 shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination, or those conditions that have not been satisfied as a result of a breach by Parent), then Parent shall pay to the Company a fee of $90,000,000 (the “Parent Termination Fee”) plus the Company Expenses.
(ii) If (A) the Company terminates this Agreement pursuant to Section 8.01(c)(i), (B) Parent terminates this Agreement pursuant to Section 8.01(d)(i) or Section 8.01(b)(iii) or (C) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) or Parent terminates this Agreement pursuant to Section 8.01(d)(ii) based on a failure by the Company to perform its obligations, covenants and agreements under this Agreement and, in each case under this clause (C), (I) prior to such termination, a Company Acquisition Proposal shall have been made public or proposed publicly to the Company or the holders of the Company Common Stock and has not been withdrawn prior to the completion of the Company Shareholders Meeting and (II) at any time after the execution of this Agreement and prior to the expiration of the twelfth (12th) month after the termination of this Agreement, the Company shall have entered into a definitive Contract with respect to, or consummated, any Company Alternative Acquisition Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that(substituting, for purposes of this clause (iSection 8.02(b)(ii), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Acquisition Proposal” shall be deemed to be with references to “fifty percent (50% or more%)”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; ), then, the Company shall, (A) in the case of clause each of clauses (iA), (B) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) C), the consummation Company shall pay to Parent a fee of any Company Alternative Proposal, pay $90,000,000 (or cause to be paid) Parent (or one or more of its designees) the “Company Termination Fee; ”) plus the Parent Expenses. The Company shall pay any Company Termination Fee payable pursuant to clauses (A) or (B) in the case of clause (iithis Section 8.02(b)(ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within no later than two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) after the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment date of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful relevant termination and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required any Company Termination Fee payable pursuant to be made plus 3% per annum through the date such payment is actually received.
clause (dC) The parties acknowledge that the agreements contained in of this Section 8.3 are an integral part 8.02(b)(ii) no later than the earlier of the transactions contemplated by this Agreement and that, without these agreements, execution of the parties would not enter into this Agreementdefinitive Contract with respect to the relevant Company Acquisition Proposal or the consummation of the relevant Company Acquisition Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Hawaiian Electric Co Inc), Merger Agreement (Nextera Energy Inc)
Termination Fees. (a) [Reserved]Company Termination Fee; No Vote Fee.
(b) In the event that:
(i) If, but only if, this Agreement is terminated by (A) Parent pursuant to Section 8.01(c)(ii) or either Parent or the Company pursuant to Section 8.01(b)(i) (but only if at the time of such termination each of the conditions set forth in Section 7.01 have been satisfied except for the condition set forth in Section 7.01(a)) or Section 8.01(b)(ii), and in any such case (1) This Agreement prior to the date of such termination (or the date of the Company Meeting in the case of termination pursuant to Section 8.01(b)(ii)), an Acquisition Proposal shall have been terminated pursuant communicated to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach the executive management of Reps and Warranties or Covenants], (2) the Company or any other Person the Company Board or shall have been publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (32) within twelve (12) months of after such termination, (x) the Company enters into a definitive agreement with respect to any transaction constituting any Company Alternative Proposal Qualifying Acquisition Transaction with a Third Party that is thereafter consummated or an agreement providing for (y) the Company consummates the transactions contemplated by any Company Alternative Qualifying Acquisition Transaction with a Third Party, which, in the case of (x) or (y), need not be the same Acquisition Proposal is executed; provided, that, for purposes of this described in clause (i), 1) above; (B) the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii8.01(d)(i); or (C) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]8.01(c)(i); then, in any such case, the Company shallshall pay, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) , to Parent or Parent’s designee(s), as the case may be, an amount equal to $80,000,000 (or one or more of its designees) such amount, the “Company Termination Fee; ”) (B) in the case of clause subject to any credit under Section 8.03(d)(i)(B)).
(ii) aboveIf, concurrently withbut only if, and as a condition this Agreement is terminated by either Parent or the Company pursuant to Section 8.01(b)(ii), the effectiveness of such terminationCompany shall pay, pay (or cause to be paid) , to Parent (or one or more of its designees) the Company Termination Fee; (C) in Parent’s designee(s), as the case of clause may be, an amount equal to $21,000,000 (such amount, the “No Vote Fee”).
(iii) aboveNotwithstanding anything to the contrary in this Section 8.03(a), within two (2) Business Days of such termination, pay (or cause but subject to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay Section 8.02 if the Company Termination Fee or the No Vote Termination Fee on more than one occasion andis paid, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Feeshall constitute liquidated damages, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b)and from and after such termination, the Company shall have no further liability of any kind for any reason in connection with respect to this Agreement or the transactions termination contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, hereby other than in respect the payment of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable (and any related amounts owing pursuant to Parent following Section 8.03(d)) and such payments shall be the sole and exclusive remedy under this Agreement of Parent, Merger Sub and their respective Subsidiaries against the Company and the Company Related Parties in the event of a termination of this Agreement giving rise to the payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Termination Fees. (a) [Reserved].
(b) In the event thatIf this Agreement is terminated by:
(i) (1) This Agreement shall have been terminated Parent pursuant to (xSection 7.1(d)(i) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] on the basis of a breach of a covenant or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties agreement contained in this Agreement or Covenants], (2) either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any other Person shall have publicly disclosed such case (A) prior to such termination (or announced prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Alternative Acquisition Proposal that has been made on or after the date of this Agreement but shall have been publicly disclosed and not publicly withdrawn prior to the earlier of (x) the Company Meeting such date and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3B) within twelve (12) months of after such termination, any transaction constituting any a Company Alternative Acquisition Proposal is consummated or an the Company enters into a definitive agreement providing for any with respect to a Company Alternative Acquisition Proposal is executed; (provided, thathowever, that for purposes of this clause (iSection 7.3(a)(i)), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The Company shall have terminated Parent pursuant to Section 7.1(d)(ii) (or pursuant to any other provision of Section 7.1 if Parent was then entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];7.1(d)(ii)); or
(iii) Parent shall have terminated this Agreement the Company pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]7.1(c)(iii); then, in each such case, the Company shallshall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (Ax) in the case of clause (i) above, upon on the earlier of (x) the execution date of an consummation of, or entry into a definitive agreement providing for any with respect to, such Company Alternative Proposal and Acquisition Proposal, (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently withpromptly, and as a condition to but in no event later than three (3) Business Days after the effectiveness date of such termination, pay termination and (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (Cz) in the case of clause (iii) above, immediately prior to or concurrently with the termination of this Agreement.
(b) If this Agreement is terminated by:
(i) the Company pursuant to Section 7.1(c)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iv) and in any such case (A) prior to such termination (or prior to the Parent Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iv)), a Parent Acquisition Proposal that has been made after the date of this Agreement shall have been publicly disclosed and not publicly withdrawn prior to such date and (B) within two twelve (212) Business Days of months after such termination, pay a Parent Acquisition Proposal is consummated or Parent enters into a definitive agreement with respect to a Parent Acquisition Proposal (provided, however, that for purposes of this Section 7.3(b)(i)), the references to “twenty percent (20%)” in the definition of Parent Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) the Company pursuant to Section 7.1(c)(ii) (or pursuant to any other provision of Section 7.1 if the Company was then entitled to terminate this Agreement pursuant to Section 7.1(c)(ii)); or
(iii) Parent pursuant to Section 7.1(d)(iii); then, in each such case, Parent shall pay, or cause to be paid) Parent (or one or more of its designees) , to the Company the Parent Termination Fee; and . Any payments required to be made under this Section 7.3(b) shall be made by wire transfer of same day funds to the account or accounts designated by the Company (Dx) in the case of clause (ivi) above, within two on the earlier of the date of consummation of, or entry into a definitive agreement with respect to, such Parent Acquisition Proposal, (y) in the case of clause (ii) above, promptly, but in no event later than three (3) Business Days after the date of such termination and (z) in the case of clause (iii) above, immediately prior to or concurrently with the termination of this Agreement.
(c) If this Agreement is terminated by (i) either Parent or the Company pursuant to Section 7.1(b)(i) and at the time of such termination any of the conditions to the Closing set forth in Section 6.1(d) or Section 6.1(e) (solely as a result of an Order in respect of an Antitrust Law issued or entered after the date of this Agreement) shall not have been fulfilled but all other conditions to the Closing set forth in Article VI either have been waived or fulfilled or would be fulfilled if the Closing were to occur on such date or (ii) either Parent or the Company pursuant to Section 7.1(b)(ii) (solely as a result of (1) a final and non-appealable Order in respect of an Antitrust Law issued or entered after the date of this Agreement or (2) Business Days a failure to obtain a Consent of such terminationa Governmental Authority under an Antitrust Law required to be obtained pursuant to Section 6.1(d)), pay (then Parent shall pay, or cause to be paid, to the Company the Reverse Termination Fee by wire transfer of same-day funds to the account or accounts designated by the Company promptly, but in no event later than three (3) Business Days after the date of such termination; provided, however, that Parent (or one or more shall not be required to pay the Reverse Termination Fee pursuant to this Section 7.3(c) if a breach by the Company of any of its designeesobligations under this Agreement has been the principal cause of the circumstances that would have otherwise required the payment of the Reverse Termination Fee pursuant to this Section 7.3(c).
(d) In the No Vote event this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii), then the Company shall pay Parent the reasonable and documented out-of-pocket costs and expenses, including all fees and expenses incurred in connection with the financing of the transactions contemplated by this Agreement and the fees and expenses of counsel, accountants, investment bankers, experts and consultants, incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to exceed $20,000,000 (the “Parent Expenses”); provided that any payment of the Parent Expenses shall not affect Parent’s right to receive any Company Termination Fee; in each case Fee otherwise due under Section 7.3(a), but shall reduce, on a dollar for dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a). Any Parent Expenses required to be paid by the Company under this Section 7.3(d) shall be made by wire transfer of immediately available funds promptly, but in no event later than three (3) Business Days after the Company’s receipt of documentation supporting such Parent Expenses.
(e) In the event this Agreement is terminated by either Parent or the Company pursuant to one or more accounts designated Section 7.1(b)(iv), then Parent shall pay the Company the reasonable and documented out-of-pocket costs and expenses, including the fees and expenses of counsel, accountants, investment bankers, experts and consultants, incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to exceed $20,000,000 (the “Company Expenses”), plus any amounts payable to the Company pursuant to Section 5.16(a); provided that any payment of the Company Expenses shall not affect the Company’s right to receive any Parent Termination Fee otherwise due under Section 7.3(b), but shall reduce, on a dollar for dollar basis, any Parent Termination Fee that becomes due and payable under Section 7.3(b). Any Company Expenses required to be paid by Parent under this Section 7.3(e) shall be made by wire transfer of immediately available funds promptly, but in no event later than three (3) Business Days after Parent; it being understood ’s receipt of documentation supporting such Company Expenses.
(f) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that in no event shall the Company be required to pay the Company Termination Fee, or Parent be required to pay the Parent Termination Fee or the No Vote Reverse Termination Fee Fee, as applicable, on more than one occasion andoccasion. For the avoidance of doubt, in no event shall Parent be required to pay both the event Parent Termination Fee and the Reverse Termination Fee.
(g) Notwithstanding anything to the contrary set forth in this Agreement, Parent’s right to receive payment from the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or pursuant to Section 7.3(a) and/or the No Vote right to receive payment of the Parent Expenses pursuant to Section 7.3(c), shall, in circumstances in which the Company Termination Fee or Parent Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than Parent’s right, after having received the Parent Expenses, to receive the Company Termination Fee less the Parent Expenses in accordance with this the circumstances expressly contemplated in Section 8.3(b7.3(a)) of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amounts, none of the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein by this Agreement (except that the Company shall also be obligated with respect to any amounts owing pursuant to Section 7.3(h)(ii)). Notwithstanding anything to the contrary set forth in this Agreement, the Company’s right to receive payment from Parent of the Parent Termination Fee pursuant to Section 7.3(b), the Reverse Termination Fee pursuant to Section 7.3(c) and/or the right to receive payment of the Company Expenses pursuant to Section 7.3(e), shall, in circumstances in which the Parent Termination Fee, the Reverse Termination Fee or Company Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than the Company’s right, after having received the Company Expenses and the expenses contemplated by Section 5.16(a), to receive the Parent Termination Fee less the Company Expenses and the expenses contemplated by Section 5.16(a) in the circumstances expressly contemplated in Section 7.3(b)) of the Company against Parent and its Subsidiaries and any of their respective former, current or Affiliates future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Parent Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amounts, none of the Parent Related Parties shall have any other Person, other than in respect of Willful and Material Breach further liability or obligation relating to or arising out of this Agreement or Fraud or, the transactions contemplated by this Agreement (except that Parent shall also be obligated with respect to the extent the Company Termination Fee becomes payable any amounts owing pursuant to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeSection 7.3(h)(ii)).
(ch) If Each of the parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and (ii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company or Parent, as applicable, fails to timely pay an any amount due pursuant to this Section 8.37.3 and, in order to obtain such payment, Parent or the Company, as applicable, commences a suit that results in a judgment against the other for the payment of any amount set forth in this Section 7.3, the Company or Parent, as applicable, shall pay Parent the other its costs and expenses in connection with such suit (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Welbilt, Inc.), Merger Agreement (Middleby Corp)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This this Agreement shall have been is terminated pursuant to Section 9.1(c)(i) (xas a result of the failure of the Minimum Condition) or Section 8.1(b)(i9.1(e) [End Date](provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 9.1(e)), (yB) Section 8.1(b)(iiiprior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) [Failure to Obtain within one hundred eighty (180) days after such termination, the Company Stockholder Approval] consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (zother than Parent of an Affiliate thereof) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the sale of more than thirty-five percent (35%) (in voting power) of the voting securities of the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier Person making such Acquisition Proposal or the sale of thirty-five percent (x35%) or more (in fair market value) of the Company Meeting and (y) assets of the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”Company;
(ii) The Company shall have terminated this Agreement is terminated pursuant to Section 8.1(c)(ii) [Company Superior Proposal];9.1(c)(ii); or
(iii) Parent shall have terminated this Agreement is terminated pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 9.1(g), then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3event, the Company shall pay Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $8,400,000 (the "Termination Fee"), which amount shall be payable in immediately available funds.
(b) Except as set forth in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the Transactions (including reasonable attorneys' fees and expenses) shall be paid by the party incurring such expenses, whether or not any Transaction is consummated.
(c) In the event that the Company shall fail to pay all or any portion of the Termination Fee, the Company also shall pay to Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect unpaid amount, commencing on the date that such payment was required amount becomes due, at a rate equal to be made the rate of interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus 3% per annum through the date such payment is actually receivedtwo percent (2%).
(d) The parties acknowledge that the agreements contained expenses provided for in this Section 8.3 9.3 are an integral part not intended to be exclusive remedies with respect to any liability for a breach of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement, and no party hereto shall be precluded from seeking damages or remedies or at law or in equity as a result of any such matter.
Appears in 2 contracts
Samples: Merger Agreement (Digital Island Inc), Merger Agreement (Cable & Wireless PLC)
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by Parent pursuant to Section 7.1(e) or by the Company pursuant to Section 7.1(i), then the Company shall pay to Parent the Company Termination Fee. The Company Termination Fee payable pursuant to this Section 7.3(a) shall be paid no later than the second (2nd) Business Day following termination pursuant to Section 7.1(e) and concurrently with any termination pursuant to Section 7.1(i).
(b) In the event that:
If (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in accordance with its terms, an Acquisition Proposal shall have become publicly known and not withdrawn, (ii) thereafter, this Agreement is terminated (A) by Parent or the circumstances Company pursuant to Section 7.1(b)), (B) by Parent or the Company pursuant to Section 7.1(d), or (C) by Parent pursuant to Section 7.1(f) due to (x) a willful breach by the Company of any of its representations and warranties set forth in clause this Agreement or (i)(1y) above a breach by the Company of any of its covenants or agreements set forth in this Agreement (unless the Company Termination Fee provided in Section 7.3(a) has already been paid pursuant to the terms thereof), and (3iii) within twelve (12) 12 months of after such termination, any the Company enters into a definitive agreement with respect to or consummates an Acquisition Transaction, then concurrently with consummating such transaction constituting any the Company Alternative Proposal shall pay to Parent the Company Termination Fee (less the amount of expenses paid pursuant to Section 7.3(d), if any) by wire transfer of same-day funds on the date such transaction is consummated or an agreement providing for any Company Alternative Proposal is executedconsummated; provided, that, provided that solely for purposes of this clause (iSection 7.3(b), the all references to “20% or more” in the definition of “Company Alternative ProposalAcquisition Transaction” shall be deemed to be references to “50% or more”;%.
(iic) The Company shall have terminated In the event that this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii7.1(g), Section 7.1(h) [Failure or Section 7.1(j), then Parent shall pay to Obtain the Company Stockholder Approval]; thenthe Parent Termination Fee. The Parent Termination Fee payable pursuant to this Section 7.3(c) shall be paid no later than the second (2nd) Business Day following termination pursuant to Section 7.1(g), Section 7.1(h) or Section 7.1(j) (it being understood that (x) in no event shall the Parent Termination Fee be payable on more than one occasion and (y) that the Parent Termination Fee shall be payable if this Agreement is terminated pursuant to Section 7.1(g), Section 7.1(h) or Section 7.1(j) even if the Financing Proceeds Condition has not been satisfied).
(d) In the event that this Agreement has been terminated by either Parent or the Company pursuant to Section 7.1(d), then the Company shall, following receipt of an invoice detailing Parent’s reasonably documented out-of-pocket fees and expenses (Aincluding reasonable legal fees and expenses) actually incurred by Parent, Purchaser and their Affiliates on or prior to the termination of this Agreement in connection with the Transactions as shown on invoices therefor, promptly (and in any event within five (5) Business Days) following such receipt pay such fees and expenses; provided, however, in no event shall the Company or any Company Subsidiary have any obligation to pay more than $6,000,000 in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness aggregate of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days fees and expenses. Payment of such terminationfees and expenses by the Company, pay if any, shall be made by wire transfer of same day funds to an account designated by Parent.
(or cause to e) All payments under this Section 7.3 shall be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case made by wire transfer of immediately available funds to one an account designated in writing by the party to whom payment is owed.
(f) The parties hereto agree that:
(i) Subject to Section 8.7 and notwithstanding any other provision of this Agreement to the contrary, each of Parent and Purchaser acknowledges and agrees on behalf of itself and its Affiliates that its receipt of the Company Termination Fee pursuant to Section 7.3(a) and Section 7.3(b), and reimbursement of expenses pursuant to Section 7.3(d), if any, shall, except in the case of Fraud, constitute the sole and exclusive remedy under this Agreement of Parent and Purchaser and each of their Affiliates and Representatives, and the receipt of the Company Termination Fee shall be deemed to be liquidated damages for any and all losses or more accounts designated damages suffered or incurred by Parent; it being understood , Purchaser, each of their Affiliates and Representatives and any other Person in connection with this Agreement (and the termination hereof), the Offer, the Top-Up Option, the Merger and the other transactions contemplated hereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and none of Parent, Purchaser, their respective Affiliates or Representatives or any other Person shall be entitled to bring or maintain any Legal Proceeding against the Company or its Affiliates arising out of or in connection with this Agreement, the Offer, the Top-Up Option, the Merger or any of the other transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination. Parent shall not be entitled to specific performance under Section 8.7 if the Company has paid in full, and Parent or Purchaser have accepted, the Company Termination Fee.
(ii) Subject to Section 8.7 and notwithstanding any other provision of this Agreement to the contrary, the Company acknowledges and agrees on behalf of itself, its Affiliates and the Company’s stockholders, that the Company’s receipt of the Parent Termination Fee in accordance with Section 7.3(c), shall, except in the case of Fraud, constitute the sole and exclusive remedy of the Company and its Affiliates and each of their Representatives and the Company’s stockholders against Parent, Purchaser, Guarantor, Financing Sources or any of their respective former, current or future general or limited partners, shareholders, managers, members, directors, officers or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the transactions contemplated by this Agreement, the Equity Commitment Letter, the Guaranty, the Offer, the Top-Up Option, the Merger or the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this Agreement, the Equity Commitment Letter, the Guaranty, the Offer, the Top-Up Option, the Merger or the Transactions, and the payment of the Parent Termination Fee shall be deemed liquidated damages for and none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions. The Company shall not be entitled to specific performance under Section 8.7 if Parent has paid in full, and the Company has accepted, the Parent Termination Fee and in no event shall the Company or its Affiliates be required permitted or entitled to receive both a grant of specific performance and the Parent Termination Fee; provided, however, and, for further clarity, in any circumstance where performance by the Parent or Purchaser of its obligations under this Agreement would relieve Parent of its obligation to pay the Company Parent Termination Fee or the No Vote Termination Fee on more than one occasion andCompany may, in the event the Company Termination Fee becomes payable its sole discretion: (i) seek specific performance pursuant to Parent following Section 8.7(b), (ii) withdraw any claim for specific performance and require payment of the No Vote Parent Termination Fee, the amount Fee if entitled to payment of the No Vote Parent Termination Fee actually paid shall be credited against under Section 7.3(c), or (iii) if the Company Termination Fee. Following receipt by Parent (or one or more of its designees) is unable for any reason to obtain specific performance, require payment of the Company Parent Termination Fee if entitled to payment of the Parent Termination Fee under Section 7.3(c).
(iii) Notwithstanding anything to the contrary in this Agreement, in no event shall (A) any Related Party (as defined in the Equity Commitment Letter, which excludes, for the avoidance of doubt, Sponsor (as defined in the Equity Commitment Letter), Parent and Purchaser) have any liability for monetary damages to the Company or the No Vote Termination Fee Company Subsidiaries (whether at law, in accordance with this Section 8.3(b)contract, the Company shall have no further liability with respect in tort or otherwise) relating to or arising out of this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personhereby, other than Sponsor’s obligations under the Guarantee and the Equity Commitment Letter and other than the obligations of Parent and Purchaser as provided herein, or (B) any former, current or future general or limited partners, equityholders, directors, officers, employees, managers, members, Affiliates or agents of the Company or any Company Subsidiaries have any liability to Sponsor, Parent or Purchaser or any Related Party for monetary damages (whether at law, in respect of Willful and Material Breach contract, in tort or otherwise) relating to or arising out of this Agreement or Fraud orthe transactions contemplated hereby. In no event shall the Company seek or obtain, nor shall it permit any of its Representatives to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery or monetary award against any Related Party with respect to, this Agreement, the Equity Commitment Letter or the Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Purchaser), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure, other than from Parent or Purchaser to the extent expressly provided for in this Agreement or Sponsor to the extent expressly provided for in the Guarantee or the Equity Commitment Letter.
(iv) Notwithstanding anything to the contrary in this Agreement, (i) neither the Company Termination Fee becomes payable to Parent following payment nor any of its stockholders, Affiliates, directors, officers, employees, controlling persons or agents shall have any rights or claims against any Financing Sources or any of their respective former, current or future general or limited partners, shareholders, managers, members, directors, officers or Affiliates in connection with this Agreement, the No Vote Termination FeeDebt Financing or the transactions contemplated hereby or thereby, whether at law, in contract, in tort or otherwise; and (ii) no Financing Source or any of its respective former, current or future general or limited partners, shareholders, managers, members, directors, officers or Affiliates have any liability or obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less or any of its stockholders, Affiliates, directors, officers, employees, controlling persons or agents relating to or arising out of this Agreement, the No Vote Termination FeeDebt Financing or the transactions contemplated hereby or thereby. For the avoidance of doubt, nothing contained herein shall restrict the ability of the Company to seek specific performance of Parent’s or Purchaser’s obligations hereunder in connection with the Debt Financing pursuant to and in accordance with Section 8.7.
(cg) If Each of the Company and Parent acknowledges and agrees that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, 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 timely pay an amount the fee due pursuant to this Section 8.37.3, and, in order to obtain such payment, Parent or the Company commences litigation that results in an award against the other party for such fee, the Company or Parent, as the case may be, shall pay Parent to the other party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such litigation, together with interest on the amount of the applicable fee from the date such amount payment was required to be made until the date of 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 plus 3% per annum through the date such payment is actually receivedmade.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Wok Acquisition Corp.), Merger Agreement (P F Changs China Bistro Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1) This (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) and, at the time of such termination, any of the conditions set forth in Section 7.01(b), Section 7.01(d), if applicable, Section 7.03(d) or in connection with the Required Statutory Approvals, the Required State Approvals or any assertion of jurisdiction by any state regulatory commission, Section 7.01(c) shall have not been satisfied or (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if, and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Statutory Approvals or any assertion of jurisdiction by any state regulatory commission) or (C) the Company terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a), Section 7.03(a), Section 7.03(c) and Section 7.03(c) shall have been terminated pursuant satisfied or waived (except for (I) those conditions that by their nature are to (x) Section 8.1(b)(i) [End Date]be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination, (yII) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] those other conditions that are still capable of being satisfied or (zIII) Section 8.1(d)(ii) [Company Breach those conditions that have not been satisfied as a result of Reps and Warranties a breach of this Agreement by Parent or Covenants]Merger Sub), or (2) the Company terminates this Agreement pursuant to Section 8.01(c)(iii), then Parent shall pay to the Company the Parent Termination Fee. Parent shall pay the Parent Termination Fee to the Company (to an account designated in writing by the Company) prior to or any other Person shall have publicly disclosed concurrently with such termination of this Agreement by Parent or announced a Company Alternative Proposal made on or no later than three (3) Business Days after the date of the applicable termination by the Company.
(ii) If the Company terminates this Agreement but pursuant to Section 8.01(c)(i) or Parent terminates this Agreement pursuant to Section 8.01(d)(i), the Company shall pay to Parent the Company Termination Fee. The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to the earlier of (x) the Company Meeting and (y) the or concurrently with such termination of this Agreement by the Company pursuant to Section 8.01(c)(i) or no later than three (3) Business Days after the date of such termination of this Agreement by Parent pursuant to Section 8.01(d)(i).
(iii) If (1) either (A) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) (but only if the Parent Termination Fee is not also payable under Section 8.02(b)(i)) or Section 8.01(b)(iii) or (B) Parent terminates this Agreement pursuant to Section 8.01(d)(ii), (2) a Company Takeover Proposal shall have been publicly disclosed or made to the Company after the date hereof, and not withdrawn, (x) in the circumstances set forth case of a termination pursuant to Section 8.01(b)(i) or Section 8.01(d)(ii), prior to the date of such termination, or (y) in clause (i)(1) above the case of a termination pursuant to Section 8.01(b)(iii), prior to the date of the Company Shareholders Meeting, and (3) within twelve (12) months after the termination of this Agreement, the Company shall have entered into a Company Acquisition Agreement or consummated a Company Takeover Proposal (whether or not the same Company Takeover Proposal referred to in clause (2)), then the Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) within three (3) Business Days after the earlier to the date the Company enters into such termination, any transaction constituting any Company Alternative Proposal is consummated Acquisition Agreement or an agreement providing for any consummates such Company Alternative Proposal is executed; provided, that, for Takeover Proposal. For purposes of this clause (i3) of this Section 8.02(b)(iii), the references term “Company Takeover Proposal” shall have the meaning assigned to “20% or more” such term in Section 5.03, except that the applicable percentage in the definition of “Company Alternative Takeover Proposal” shall be deemed to be references to “5050.1%” rather than “20% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Vectren Utility Holdings Inc), Merger Agreement
Termination Fees. (a) [Reserved]In the event that (i) this Agreement is terminated by EUA pursuant to Section 9.01(e) or (ii) any person or group shall have made an Alternative Proposal that has not been withdrawn and this Agreement is terminated by (A) XXXX pursuant to Section 9.01(c) or Section 9.01(g) or (B) by EUA pursuant to Section 9.01(b) and, in the case of this clause (ii) only, a definitive agreement with respect to such Alternative Proposal is executed within two years after such termination, then EUA shall pay to XXXX, by wire transfer of same day funds, either on the date contemplated in Section 9.01(e) if applicable, or otherwise, within five (5) business days after such termination, a termination fee of $20 million, plus an amount equal to all documented out-of-pocket expenses and fees incurred by XXXX arising out of, or in connection with or related to, the Merger and other transactions contemplated hereby, not in excess of $5 million in the aggregate.
(b) In the event that:
that this Agreement is terminated by either XXXX or EUA pursuant to Section 9.01(b) and at the time of such termination (i) (1the conditions to the Closing set forth in Section 8.01(d) This Agreement shall not have been terminated pursuant to (x) Section 8.1(b)(i) [End Date]fulfilled, (yii) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach if the date of Reps and Warranties or Covenants], (2) the Company or termination is any date other Person shall have publicly disclosed or announced than a Company Alternative Proposal made date which is on or after the date Extended Termination Date, all conditions contained in Article VIII other than Sections 8.01(d) or 8.03(c) shall have been fulfilled or are capable of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months being fulfilled as of such terminationdate, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
and (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated the merger contemplated by the Company or Parent pursuant National Grid Merger Agreement has not yet been consummated, then XXXX shall pay to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; thenEUA, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andsame day funds, in the event the Company Termination Fee becomes payable to Parent following payment within five (5) business days after such termination, a termination fee of the No Vote Termination Fee$10 million, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) plus an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3all documented out-of-pocket expenses and fees incurred by EUA arising out of, or in connection with or related to, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the Merger and other transactions contemplated by this Agreement and thathereby, without these agreements, not in excess of $5 million in the parties would not enter into this Agreementaggregate.
Appears in 2 contracts
Samples: Merger Agreement (New England Electric System), Merger Agreement (New England Electric System)
Termination Fees. (a) [Reserved].
(b) In the event thatIf:
(i) (1) This either Parent or Company terminates this Agreement shall have been terminated pursuant to (xSection 8.01(b)(i) Section 8.1(b)(ior 8.01(b)(ii) [End Date]and, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) at the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months time of such termination, any transaction constituting any Company Alternative Proposal is consummated all of the conditions set forth in Sections 7.01 and 7.03 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions would have been satisfied on the date of termination if the Closing occurred on such date) or an agreement providing for any Company Alternative Proposal is executed; providedwaived, that, for purposes of this clause other than those conditions set forth in Section 7.01(b) or 7.01(c) (iwith respect to Section 7.01(c), solely to the references to “20% extent that such Restraint arises under the HSR Act or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;any other Review Law); or
(ii) The (A) Company shall terminates this Agreement pursuant to Section 8.01(c)(i) or 8.01(c)(ii) or (B) Parent terminates this Agreement pursuant to Section 8.01(b)(i), if at such time Company could have validly terminated this Agreement pursuant to Section 8.1(c)(ii8.01(c)(i) [or 8.01(c)(ii); then, in either case, Parent shall pay to Company Superior Proposal];$71,110,000 (the “Parent Termination Fee”) in immediately available funds to an account designated by Company. Such payment shall be due (x) concurrently with termination by Parent or (y) within two Business Days after written notice of termination by Company (as applicable). Parent shall not be obligated to make more than one payment pursuant to this Section 8.03(a).
(iiib) If (A) the CSG-Vista Outdoor Merger Agreement is terminated, (B) this Agreement is terminated (x) by Parent shall pursuant to Section 8.01(d)(ii) or (y) by Parent or Company pursuant to Section 8.01(b)(i) or Section 8.01(b)(iii) (unless, in the case of termination pursuant to this clause (y), at such time Company could have validly terminated this Agreement pursuant to Section 8.1(d)(i8.01(c)(i) [Company Change or 8.01(c)(ii)) and (C) Vista Outdoor is, either concurrently with such termination of Recommendation]; or
(iv) This the CSG-Vista Outdoor Merger Agreement is terminated by or at anytime thereafter, required to pay to CSG the Company or Parent Vista Outdoor Termination Fee pursuant to Section 8.1(b)(iii8.03(b) [Failure of the CSG-Vista Outdoor Merger Agreement, then Vista Outdoor shall pay, or shall cause Company to Obtain Company Stockholder Approval]; thenpay, to Parent $28,125,000 (the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the “Company Termination Fee; (B”) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts an account designated by Parent; it being understood that in no event . Such payment shall be due simultaneously with the Company be required to pay payment of the Company Vista Outdoor Termination Fee or pursuant to Section 8.03(b) of the No Vote Termination Fee on CSG-Vista Outdoor Merger Agreement. Neither Vista Outdoor nor Company shall be obligated to make more than one occasion and, in the event the Company Termination Fee becomes payable payment pursuant to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b8.03(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If Each of the Company parties hereto acknowledges that the agreements contained in this Section 8.03 are an integral part of the Transactions, and that without these agreements, the other parties hereto would not enter into this Agreement and each other Transaction Document to which it is a party. Accordingly, if Vista Outdoor or Parent, as the case may be, fails to timely promptly pay an any amount due pursuant to this Section 8.38.03, and, in order to obtain payment of such amount, Parent or Company, as the Company case may be, commences an Action which results in a final, non-appealable order against the other requiring the payment set forth in this Section 8.03, such paying party shall pay Parent or cause to be paid to the other party, as applicable, its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) incurred in connection with such Action, together with interest on such due and unpaid amount pursuant to this Section 8.03 at the rate of (i) the prime rate as published in The Wall Street Journal in effect on the date such payment amount was required to be made paid plus 3(ii) 2% per annum through the date such payment is was actually received.
(d) The parties acknowledge that Subject in all respects to Section 8.02, Company’s injunction, specific performance and equitable relief rights and related rights set forth in Section 9.12 and Section 8.03(c), in the agreements contained event the Parent Termination Fee is paid to Company in this circumstances under which the Parent Termination Fee is payable pursuant to Section 8.3 are an integral part 8.03(a), payment of the transactions contemplated by Parent Termination Fee (which, for the avoidance of doubt, shall be payable to Company solely in the circumstances described in Section 8.03(a)) shall be the sole and exclusive remedy (whether at Law or in equity, whether in contract or in tort or otherwise) of Vista Outdoor, Company and its Subsidiaries against Parent, Merger Sub or any of their respective former, current or future general or limited partners, stockholders, financing sources (including the Debt Financing Sources and the Equity Financing Sources), managers, members, directors, officers or Affiliates (collectively, the “Parent Related Parties”) for any and all losses, damages, fees, costs and expenses suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this Agreement or the Transactions, and thatupon payment of the Parent Termination Fee, without these agreementsnone of the Parent Related Parties shall have any further Liability relating to or arising out of this Agreement or the Transactions. In no event shall Company be entitled to seek or obtain any recovery or judgment in excess of the aggregate amount of the Parent Termination Fee and any amounts payable pursuant to Section 6.13 or Section 8.03(c) against the Parent, Merger Sub and or any other Parent Related Parties, including for any type of damage relating to this Agreement or the parties would not enter into Transactions, whether at law or in equity, in contract, in tort or otherwise.
(e) Subject in all respects to Section 8.02, Parent’s injunction, specific performance and equitable relief rights and related rights set forth in Section 9.12 and Section 8.03(c), in the event the Company Termination Fee is paid to Parent in circumstances under which the Company Termination Fee is payable pursuant to Section 8.03(b), payment of the Company Termination Fee (which, for the avoidance of doubt, shall be payable to Parent solely in the circumstances described in Section 8.03(b)) shall be the sole and exclusive remedy (whether at Law or in equity, whether in contract or in tort or otherwise) of Parent, Merger Sub and the other Parent Related Parties against Company and its Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates (collectively, “Company Related Parties”) for any and all losses, damages, fees, costs and expenses suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this AgreementAgreement or the Transactions, and upon payment of the Company Termination Fee, none of the Company Related Parties shall have any further Liability relating to or arising out of this Agreement or the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Revelyst, Inc.), Merger Agreement (Vista Outdoor Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This If this Agreement shall have been is terminated pursuant to (xa) Section 8.1(b)(i7.1(d) [End Date], or (yb) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps 7.1(e), and Warranties or Covenants], (2) if the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of is not at that time entitled to terminate this Agreement but prior to the earlier by reason of (xSection 7.1(b) or 7.1(c), then the Company Meeting shall promptly (and (y) the termination in any event within two days of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated receipt by the Company or Parent pursuant of written notice from the Parent) pay to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts an account designated by the Parent) concurrently with the execution of a definitive agreement with respect to any Alternative Proposal, a termination fee of $15,000,000 plus an amount equal to documented fees and expenses incurred by or on behalf of the Parent and its affiliates and investors in connection with this Agreement and the Transactions up to an aggregate maximum amount of $2,500,000; it being understood provided, however, that in no event shall the Company shall not be required obligated to pay such fee to the Company Termination Fee or Parent if this Agreement is terminated pursuant to Section 7.1(d) unless (a)(i) at the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) time of the Company Termination Fee Meeting, the Company has received an Alternative Proposal (a "Pending Proposal") ---------------- or (ii) prior to the No Vote Termination Fee in accordance with termination of this Section 8.3(b), Agreement the Board of Directors of the Company shall have no further liability withdrawn, or modified in a manner adverse to the Parent, its approval or recommendation of the Merger and the other Transactions, and (b) within one year after the termination of this Agreement, the Company enters into a definitive agreement or otherwise consummates with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates any person such or any other PersonAlternative Proposal, other than in respect and, provided, further, that if such termination fee becomes payable as a result of Willful a termination pursuant to Section 7.1(d), then such termination fee shall be paid promptly following the earlier of the execution of such definitive agreement providing for an Alternative Proposal and Material Breach the consummation of an Alternative Proposal, as the case may be.
(b) If (i) this Agreement is terminated pursuant to (i) Section 7.1(b) and (ii) Parent is not at that time entitled to terminate this Agreement by reason of Section 7.1(c) or Fraud or7.1(d), to and (iii) Parent has not received an Acceptable FCC Order, and (iv) the extent conditions set forth in Sections 6.1(c) and 6.2(a), (b), (c) and (e) have been, or if the Company Termination Fee becomes payable to FCC Order had been obtained, would have been, otherwise satisfied, then Parent following payment shall promptly (and in any event within two days of receipt by Parent of written notice from the No Vote Termination Fee, any obligation to Company) pay (or cause to be paid) an amount equal to the Company Termination Fee less (by wire transfer of immediately available funds to an account designated by the No Vote Termination Fee.
(cCompany) If a termination fee of $17,500,000; provided, however, that Parent shall not be obligated to pay such fee to the Company fails if the sole reason that Parent and Sub have failed to timely pay an amount obtain the Acceptable FCC Order is due pursuant to this Section 8.3changes, after the Company shall pay Parent interest on such amount at date hereof, in the prime rate as published in The Wall Street Journal Communications Act or the rules and regulations of the FCC, in effect on as of the date such payment was required hereof (except those which have been proposed in formal rulemaking proceedings and have been subject to be made plus 3% per annum through public comment prior to the date such payment is actually receivedhereof).
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Black Leon D), Merger Agreement (Telemundo Group Inc)
Termination Fees. (a) [Reserved].
(b) In the event thatIf, but only if, this Agreement is terminated by:
(i) Parent pursuant to Section 8.01(c)(ii) or either Parent or the Company pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii), and in any such case (x) prior to such termination (or the Stockholders’ Meeting in the case of termination pursuant to Section 8.01(b)(ii)), an Acquisition Proposal shall have been communicated to the management of the Company or the Company Board or shall have been publicly disclosed and not irrevocably withdrawn prior to such date and (y) within eighteen (18) months after such termination, (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain the Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants]enters into a Competing Acquisition Arrangement with a Third Party that is thereafter consummated, (2) the Company consummates the transactions contemplated by any Acquisition Proposal with a Third Party, or any other Person shall have publicly disclosed or announced (3) the Company Board recommends an Acquisition Proposal with a Company Alternative Proposal made on or after the date of this Agreement but prior Third Party to the earlier Company’s stockholders that is later consummated, which in the case of (1), (2) or (3), need not be the same Acquisition Proposal described in clause (x) the Company Meeting and above (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, provided that, for purposes of this clause (i)Section 8.03, the references to “20% or more%” in the definition of “Company Alternative Proposal” Acquisition Transaction shall be deemed to be references to “50% or more%”);
(ii) the Company pursuant to Section 8.01(d)(i); or
(iii) Parent pursuant to Section 8.01(c)(i); then, in any such case, the Company shall pay, or cause to be paid, to Parent or Parent’s designee(s), as the case may be, an amount equal to $36,000,000 (the “Company Termination Fee”).
(b) Any payments required to be made under Section 8.03(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (w) in the case of Section 8.03(a)(i), on the same day as the consummation of any transactions contemplated by an Acquisition Proposal, (x) in the case of Section 8.03(a)(ii), immediately prior to or concurrently with such termination, and (y) in the case of Section 8.03(a)(iii), promptly, but in no event later than two (2) Business Days after the date of such termination.
(c) If the Agreement is terminated by the Company pursuant to Section 8.01(d)(ii) or Section 8.01(d)(iii), then Parent shall pay, or cause to be paid, to the Company an amount equal to $72,000,000 (the “Parent Termination Fee”) by wire transfer of same day funds to the account or accounts designated by the Company not later than two (2) Business Days after the date of such termination.
(d) Notwithstanding any other provision of this Agreement to the contrary, the Company acknowledges and agrees on behalf of itself and its Affiliates that termination of this Agreement pursuant to Section 8.01(d)(ii) or Section 8.01(d)(iii) and the receipt of the Parent Termination Fee (in circumstances in which it is payable) shall (x) constitute the sole and exclusive remedy under this Agreement of the Company and each of its Affiliates and Representatives and holders of Shares and any other Company Related Party, and (y) be deemed to be liquidated damages, for any and all losses or damages suffered or incurred by the Company and its Affiliates and Representatives, holders of Shares and any other Company Related Party in connection with or as a result of any breach of any representation, warranty, covenant or agreement or the failure of the transactions contemplated hereby to be consummated or any matter forming the basis for termination of this Agreement, and none of the Company and its respective Affiliates or Representatives, any holder of Shares or any other Company Related Party shall be entitled to bring or maintain any Proceeding against Parent, Merger Sub, any Parent Related Party or any of their respective Affiliates or Representatives arising out of or in connection with this Agreement, the Merger, the Debt Financing, or any of the other transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination. The Company shall have not be entitled to specific performance under Section 9.09 if the Company has terminated this Agreement pursuant to Section 8.1(c)(ii8.01(d)(ii) [Company Superior Proposal];
(iiior Section 8.01(d)(iii) and Parent shall have terminated this Agreement pursuant to has paid in full the Parent Termination Fee as provided in Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with8.03(c), and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company or its Affiliates be required permitted or entitled to pay receive both a grant of specific performance of Parent’s and Merger Sub’s obligations to cause the Company Closing to occur pursuant to Section 2.02 and the Parent Termination Fee or Fee.
(e) Notwithstanding any other provision of this Agreement to the No Vote Termination Fee contrary, Parent acknowledges and agrees on more than one occasion andbehalf of itself and its Affiliates that, (i) in the event of termination of this Agreement in a circumstance in which the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Feepursuant to Section 8.03(a)(i), Section 8.03(a)(ii) or Section 8.03(a)(iii), the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee shall (except in the case of any willful breach or fraud, to which the No Vote Termination Fee limitations set forth in accordance with this Section 8.3(b), subsection (e) shall not apply) (x) constitute the Company shall have no further liability with respect to sole and exclusive remedy under this Agreement of Parent and each of its Affiliates and Representatives and any other Parent Related Party, and (y) be deemed to be liquidated damages, for any and all losses or damages suffered or incurred by Parent and its Affiliates and Representatives and any other Parent Related Party in connection with or as a result of any breach of any representation, warranty, covenant or agreement or the transactions contemplated herein hereby to Parent or its Subsidiaries or Affiliates be consummated or any other Personmatter forming the basis for termination of this Agreement, other than and (ii) in respect the event of Willful and Material Breach any such termination of this Agreement or Fraud or, to the extent in a circumstance in which the Company Termination Fee becomes payable to Parent pursuant to Section 8.03(a)(i), Section 8.03(a)(ii) or Section 8.03(a)(iii), then, following Parent’s receipt of the Company Termination Fee, none of Parent and its respective Affiliates or Representatives or any other Parent Related Party shall (except in the case of any willful breach or fraud, to which the limitations set forth in this clause (e) shall not apply) be entitled to bring or maintain any Proceeding against the Company or any Company Related Party or any of their respective Affiliates or Representatives arising out of or in connection with this Agreement, the Merger, or any of the other transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination.
(f) For the avoidance of doubt, any payment by the Company or Parent under this Section 8.03 shall be payable only once with respect to this Section 8.03 and not in duplication even though such payment may be payable under one or more provisions hereof.
(g) Notwithstanding anything herein to the contrary, if Parent or Merger Sub fail to complete the Merger for any or no reason or otherwise breach this Agreement, fail to perform hereunder or under the Debt Financing (in any case, whether willfully, intentionally, unintentionally or otherwise) then, except for an order of specific performance as and only to the extent expressly permitted by Section 9.09, the sole and exclusive remedy (whether at law, in equity, in contract in tort or otherwise) of the Company, its Affiliates and any other Person against Parent, Merger Sub or any Parent Related Party for any such failure, breach, loss, damage or otherwise shall be for the Company to terminate this Agreement and receive payment of the No Vote Parent Termination Fee, if payable hereunder. For the avoidance of doubt, under no circumstance will the Company, any obligation of its Affiliates, any holder of Shares or any other Company Related Party be entitled to pay aggregate monetary damages (when taken together with all other monetary damages and the payment of the full or cause to be paidpartial amount of the Parent Termination Fee) an amount equal from Parent, Merger Sub and the Parent Related Parties to the Company, any of the Company’s Affiliates, any holder of Shares or any other Company Termination Fee less Related Party in connection with this Agreement, the No Vote Debt Financing, for any breach, failure to perform hereunder or thereunder (in any case, whether willfully, intentionally, unintentionally or otherwise) or other liability of any kind suffered as a result of any breach of this Agreement or the failure to complete the Merger or any other transactions contemplated by this Agreement or the Debt Financing (including the abandonment or termination hereof or thereof) for any loss or otherwise, in excess of the amount of the Parent Termination Fee.
(ch) If Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 8.03 are an integral part of this Agreement and the transactions contemplated hereby and that without such agreements the Company, Parent and Merger Sub would not have entered into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay an amount the fees due pursuant to this Section 8.38.03 or any portion thereof and, in order to obtain such payment, the Company Company, Parent or Merger Sub (as applicable, the “Prevailing Party”) commences a suit which results in an Order against the other party (the “Other Party”) for such fee or any portion thereof, the Other Party shall pay Parent to the Prevailing Party its costs and expenses (including reasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the amount of the applicable fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case from and including the date payment of such amount was due to through the date of actual payment at the prime rate as published set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedmade.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Endurance International Group Holdings, Inc.), Merger Agreement (Constant Contact, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event thatIf this Agreement is terminated by:
(i) (1A) This Parent pursuant to Section 7.1(d)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or (B) either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any such case (I) after the execution of this Agreement and prior to such termination (or prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), an Acquisition Proposal shall have been terminated publicly disclosed (or, in the case of termination pursuant to (xSection 7.1(b)(i) or Section 8.1(b)(i) [End Date]7.1(d)(i), (y) Section 8.1(b)(iii) [Failure otherwise made known to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have Board) and not withdrawn (publicly, if publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (xdisclosed) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3II) within twelve (12) months of after such termination, any transaction constituting any Company Alternative Acquisition Proposal is consummated or an the Company enters into a definitive agreement providing for with respect to any Company Alternative Acquisition Proposal that is executed; provided, that, subsequently consummated (provided that for purposes of this clause (iSection 7.3(a)(i), the references to “20% or morefifteen percent (15%)” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];7.1(c)(ii); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]7.1(d)(ii); then, in any such case, the Company shallshall pay, or cause to be paid, to Parent the Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same-day funds to the account or accounts designated by Parent, (A) in the case of clause (i) above, upon on the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) same day as the consummation of any Company Alternative Proposalthe Acquisition Proposal contemplated therein, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, immediately prior to or substantially concurrently with, with such termination and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within promptly, but in no event later than two (2) Business Days after the date of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feeoccasion.
(c) If The Company acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and (ii) without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to timely pay an amount due the Termination Fee pursuant to this Section 8.37.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of the Termination Fee set forth in this Section 7.3, the Company shall pay Parent its costs and expenses in connection with such suit (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Exact Sciences Corp), Merger Agreement (Genomic Health Inc)
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated (i) by Parent pursuant to Section 7.1(d), (ii) by the Company pursuant to Section 7.1(e) or (iii) (A) by Parent pursuant to Section 7.1(f) or (B) by either the Company or Parent pursuant to Section 7.1(c), and in the case of clause (iii), at the time of such termination an Acquisition Proposal had been made and not withdrawn (except in each case the references therein to “20%” shall be replaced by “50%”), and within twelve (12) months after such termination, the Company has entered into a definitive agreement relating to or consummated an Acquisition Proposal (except the references therein to “20%” shall be replaced by “50%”), then in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee.
(b) In the event that:
that this Agreement is terminated either (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent (A) pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then7.1(b), if the Company shallrelevant Order permanently restraining, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) enjoining or otherwise prohibiting or Law preventing or making illegal the consummation of any Company Alternative Proposalthe Merger relates to a failure to obtain the necessary clearances, pay (approvals or cause to be paid) Parent (authorizations under the HSR Act or one or more of its designees) the Company Termination Fee; (B) pursuant to Section 7.1(c) as a result of the failure to satisfy the conditions set forth in the case of clause Section 6.1(c), or (ii) aboveby the Company pursuant to Section 7.1(h) or Section 7.1(i), concurrently with, and as a condition then Parent shall pay to the effectiveness of such terminationCompany, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds funds, the Parent Termination Fee.
(c) In the event that (i) the Company delivers a Breach Escrow Election Notice to one Parent in accordance with Section 7.4(a) and (ii) (A) the Company terminates this Agreement pursuant to Section 7.1(j) or (B) (1) this Agreement is terminated thereafter for any other reason and (2) there has not been a willful and material breach of this Agreement by the Company that was a cause of the failure of the Closing to occur, then Parent shall pay to the Company, by wire transfer of immediately available funds, or cause to be paid to the Company (including via Section 7.4(c)), the Parent Termination Fee.
(d) For the avoidance of doubt, the Parent Termination Fee may not be paid more accounts designated than once.
(e) Each of the parties acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the Transactions, (ii) each of the Company Termination Fee and the Parent Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent or the Company, as applicable, in the circumstances in which the Company Termination Fee or the Parent Termination Fee, as applicable, 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 Transactions, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent and the Company would not enter into this Agreement. In the event that the Company shall fail to pay the Company Termination Fee when due, or Parent shall fail to pay the Parent Termination Fee when due, such party shall reimburse the other party for all reasonable costs and expenses actually incurred or accrued by such party (including reasonable fees and expenses of counsel) in connection with any action taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in the Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid to the date of actual payment.
(f) Except for (i) an Order of specific performance as and only to the extent expressly permitted by Section 8.13, and (ii) the Company’s rights as a third party beneficiary under the Equity Commitment Letter, the Company’s right to receive the Parent Termination Fee when payable pursuant to Section 7.3(b), and the Company’s right to seek damages following termination pursuant to Section 7.2 (solely against Parent and each of Merger Sub and the Sponsor to the extent provided in the Guarantee and, to the extent permitted by the proviso set forth in Section 7.2), shall constitute the exclusive remedies of the Company against Parent; it being understood that , Merger Sub, the Sponsor, the Parent Financing Sources or any of their respective former, current or future general or limited partners, stockholders, equity holders, controlling Person, members, managers, agents, Representatives, Affiliates or assignees (collectively, the “Parent Related Parties”) for all losses or damages suffered as a result of the failure of the Transactions to be consummated (for any reason or for no reason or otherwise) or for a breach or failure to perform hereunder or under the Guarantee, the Equity Commitment Letter, any certificate or other document delivered in connection herewith or therewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith. Notwithstanding anything to the contrary contained in this Agreement, (i) under no circumstances will the Company be entitled to, and in no event shall the Company seek to recover, monetary damages from any Parent Related Party (other than Parent, Merger Sub or the Sponsor pursuant to the Guarantee), (ii) in no event shall the Company be required entitled to pay seek or obtain any consequential damages that were not reasonably foreseeable or special or punitive damages from any Parent Related Party and (iii) in no event shall any amounts recovered from Parent or Merger Sub or Sponsor be in excess of the Maximum Amount (as defined in the Guarantee). For the avoidance of doubt, in no case shall the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable be entitled to Parent following payment receive both a grant of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due specific performance pursuant to this Section 8.3, 8.13 that results in a Closing at which the Company shall pay Parent interest on such amount at Per Share Merger Consideration is received by the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedCompany’s stockholders and monetary damages.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (American Railcar Industries, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement, any Alternative Proposal (substituting 40% for the 20% threshold set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”) is or continues to be publicly proposed or publicly disclosed, (B) this Agreement but prior is terminated by Parent pursuant to Section 7.1(f) (so long as a proposal regarding a Qualifying Transaction remains outstanding at the time of the event giving rise to the earlier termination) or by Parent or the Company pursuant to Section 7.1(d) (so long as a proposal regarding a Qualifying Transaction remains outstanding as of the most recent Expiration Date referred to in Section 7.1(d)), and (xC) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any proposal regarding a Qualifying Transaction within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal the date this Agreement is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”terminated;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 7.1(g); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii7.1(i) [Failure to Obtain Company Stockholder Approval]; then. then in any such event under clause (i), (ii) or (iii) of this Section 7.3(a), the Company shallshall pay to TC Group IV, L.L.C. a termination fee of $29.0 million in cash (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company “Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion. In the event that a proposal regarding a Qualifying Transaction shall have been made known to the public or shall have been made directly to the stockholders of the Company generally or any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make a proposal regarding a Qualifying Transaction that reasonably appears to be bona fide and thereafter this Agreement is terminated by the Company or Parent pursuant to Section 7.1(d) and no Termination Fee is yet payable in respect thereof pursuant to Section 7.3(a)(i), then the Company shall pay to Parent all of the Expenses (as hereinafter defined) of Parent and Merger Sub and thereafter if the Company becomes obligated to pay to Parent the Termination Fee pursuant to Section 7.3(a)(i) such payment obligation shall be reduced by the amount of Expenses previously actually paid to Parent pursuant to this sentence. As used herein, “Expenses” shall mean all reasonable out-of-pocket documented fees and expenses (including all fees and expenses of counsel, accountants, consultants, financial advisors and investment bankers of Parent and its Affiliates), incurred by Parent or Merger Sub or on their behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the Financing and all other matters related to the Merger; provided that such fees and expenses shall not in any case exceed $10 million in the aggregate.
(b) Any provision in this Agreement to the contrary notwithstanding, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent that (or one or more of its designeesi) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to terminate this Agreement pursuant to Section 7.1(e) and at the time of such termination there is no state of facts or circumstances (excluding the breach by Parent or Merger Sub or the transactions contemplated herein public announcement by the Company of such breach (each, a “Breach Fact”)) that would reasonably be expected to cause the conditions set forth in Annex III (other than clause (b) thereof) and Section 6.1(b) not to be satisfied on the End Date assuming the Expiration Date and the Closing were to be scheduled on the End Date, (ii) the Company shall terminate this Agreement pursuant to Section 7.1(h), or (iii) Parent or its Subsidiaries or Affiliates or any other Personthe Company shall terminate this Agreement pursuant to Section 7.1(b) and, at the time of such termination, the conditions set forth in Annex III (other than clause (b) thereof) have been satisfied (other than where a Breach Fact would reasonably be deemed to have caused the failure of any such condition to be satisfied), then in respect any such case Parent shall pay to the Company a fee of Willful and Material Breach $35 million in cash (the “Parent Termination Fee”), it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. The Parent Termination Fee shall be paid to the Company concurrent with termination of this Agreement by Parent or Fraud ornot later than two (2) Business Days following termination of this Agreement by the Company, to as the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feecase may be.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such Any payment was required to be made plus 3% per annum through pursuant to clause (i) of Section 7.3(a) shall be made to Parent promptly following the date earlier of the execution of a definitive agreement with respect to, or the consummation of, any Qualifying Transaction (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to clause (ii) of Section 7.3(a) shall be made to Parent concurrently with, and as a condition to the effectiveness of, the termination of this Agreement by the Company pursuant to Section 7.1(g); any payment required to be made pursuant to clause (iii) of Section 7.3(a) shall be made promptly following termination of this Agreement by Parent (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); and any such payment is actually receivedshall be made by wire transfer of immediately available funds to an account to be designated by Parent. In circumstances in which Expenses are payable, such payment shall be made to Parent not later than two Business Days after delivery to the Company of an itemization setting forth in reasonable detail all Expenses (which itemization may be supplemented and updated from time to time by Parent until the 60th day after Parent delivers such notice of demand for payment), and all such payments shall be made by wire transfer of immediately available funds to an account to be designated by Parent.
(d) The In the event that the Company shall fail to pay the Termination Fee and/or Expenses, or Parent shall fail to pay the Parent Termination Fee, required pursuant to this Section 7.3 when due, such fee and/or Expenses, as the case may be, shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s Prime Lending Rate (the “Interest Rate”). In addition, if either party shall fail to pay such fee and/or Expenses, as the case may be, when due, the such owing party shall also pay to the owed party all of the owed party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee and/or Expenses, as the case may be. Parent and the Company acknowledges that the fees, Expense reimbursement and the other provisions of this Section 7.3 are an integral part of the Offer and the Merger and that, without these agreements, Parent and the Company would not enter into this Agreement.
(e) Each of the parties acknowledge hereto acknowledges that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated by this Agreement and thatthat neither the Termination Fee nor the Parent Termination Fee is a penalty, without these agreementsbut rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, as the case may be, 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. Notwithstanding anything to the contrary in this Agreement, the parties Company’s right to receive payment of the Parent Termination Fee pursuant to this Section 7.3 or the guarantee thereof pursuant to the Guarantee and to require that Parent, Merger Sub and Guarantor perform their respective obligations under (i) Section 7.3 and the Guarantee in accordance with their terms, (ii) to pay the Company Financing Expenses and (iii) to pay the Company Note Repayment Expenses shall be the exclusive remedy of the Company against Parent, Merger Sub, Guarantor or any of their respective stockholders, partners, members, directors, Affiliates, officers or agents for (x) the loss suffered as a result of any failure of the Merger to be consummated and (y) any other losses, damages, obligations or liabilities suffered as a result of or under this Agreement and the transactions contemplated hereby, and none of Parent, Merger Sub, Guarantor or any of their respective stockholders, partners, members, directors, officers or agents, as the case may be, shall have any liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby other than any such liability in respect of the Parent Termination Fee and the Guarantee, provided, however, that Parent shall be obligated with respect to Sections 5.2(b) and the last sentence of Section 5.11(b); and provided further, however, that Parent, Merger Sub and Guarantor shall be relieved of any liability for the Company Financing Expenses and the Company Note Repayment Expenses in the event this Agreement is terminated in a circumstance in which the Termination Fee is payable or would not enter into this Agreementbecome payable upon the occurrence of the event referred to Section 7.3(a)(i)(C) and provided further that nothing herein shall relieve Parent or Merger Sub of liability to pay for Shares accepted for payment in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) this Agreement is validly terminated (1A) This Agreement shall have been terminated by Parent pursuant to Section 6.1(d) or (B) by the Company pursuant to Section 6.1(e), then the Company shall pay to Parent prior to or concurrently with such termination, in the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, a termination fee of $51,200,000 (the “Company Termination Fee”).
(ii) this Agreement is validly terminated by (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] Parent or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after pursuant to Section 6.1(b)(i) (but only if as of the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months time of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; providedthe conditions set forth in Section 5.1(b) (which, that, solely for purposes of this clause section, will be deemed satisfied so long as the applicable Order is not an Antitrust Order or the applicable Law is not an Antitrust Law) and Section 5.1(c) have been satisfied) or Section 6.1(b)(ii) or (iy) by Parent pursuant to Section 6.1(f), and (A) following the Agreement Date and prior to such termination, an Acquisition Proposal shall have been publicly disclosed or shall have otherwise become publicly known and (B) within 12 months after such termination, the Company enters into a definitive Contract with respect to an Acquisition Proposal or consummates an Acquisition Proposal (which need not be the same Acquisition Proposal that was made, announced or publicly known prior to the termination hereof) (provided that for all purposes of this Section 6.3(a)(ii), the term Acquisition Proposal shall have the meaning assigned to such term in Exhibit A, except that the references to “20% or more” in the definition of “Company Alternative Proposal15%” shall be deemed to be references to “50% %), then the Company shall pay to Parent the Company Termination Fee concurrently with entering into a definitive Contract or more”;the consummation of such Acquisition Proposal. Any Parent Expenses paid by the Company to Parent pursuant to Section 6.3(c) shall be credited against, and shall thereby reduce, the amount of the Company Termination Fee that otherwise would be required to be paid by the Company to Parent pursuant to this Section 6.3(a)(ii).
(iib) The In the event that either:
(i) this Agreement is validly terminated by the Company shall have terminated pursuant to (A) Section 6.1(g) (and such material breach or material failure to perform by Parent or Merger Sub is the primary reason for the failure of the Closing to be consummated), (B) Section 6.1(b)(i) if the Company would then be entitled to terminate this Agreement pursuant to Section 8.1(c)(ii6.1(g) [Company Superior Proposal];
(iiiand such material breach or material failure to perform by Parent or Merger Sub is the primary reason for the failure of the Closing to be consummated) Parent shall have terminated this Agreement pursuant to or (C) Section 8.1(d)(i) [Company Change of Recommendation]6.1(h); or
(ivii) This (A) this Agreement is validly terminated by the Company or Parent pursuant to Section 6.1(b)(i) or pursuant to Section 6.1(c) (but solely if the applicable Order is an Antitrust Order or the applicable Law relates to an Antitrust Law) and (B) all of the conditions set forth in Section 5.1 and Section 5.2 are satisfied, except for (x) Section 5.1(b) (but solely if the applicable Order is an Antitrust Order or the applicable Law relates to an Antitrust Law), (y) Section 5.1(c) and (z) those conditions that, by their nature, are to be satisfied at the Closing and were capable of being satisfied as of the date of such termination if the Closing were to occur on the date of such termination; then Parent shall pay to the Company within two Business Days after such termination, a termination fee of $102,500,000 (the “Parent Termination Fee”).
(c) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii6.1(b)(ii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this pursuant to Section 8.3(b6.1(f), then the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein pay to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was that required to be made plus 3% per annum through reimburse Parent, Merger Sub and their respective Affiliates for all fees and expenses incurred in connection with this Agreement and the date such payment is actually receivedTransactions up to $5,000,000 (the “Parent Expenses”).
(d) The parties Parties acknowledge that (i) the agreements contained in this Section 8.3 6.3 are an integral part of the transactions contemplated by this Agreement Transactions, (ii) each of the Company Termination Fee and thatthe Parent Expenses is not a penalty, without these agreementsbut is liquidated damages, in a reasonable amount that will compensate Parent in the parties would not enter into this Agreement.circumstances in which such fee is payable for the efforts and resources expended and opportunities
Appears in 1 contract
Samples: Merger Agreement (Shutterfly Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure 7.1(d)(i), prior to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, contemporaneously with and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) shall pay Parent a fee in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds in the amount of $7,700,000 (the “Termination Fee”).
(b) If this Agreement is terminated by Parent pursuant to one or more accounts designated by Parent; it being understood that Section 7.1(e) (other than pursuant to clause (v) thereof), then the Company shall promptly, but in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more later than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach three Business Days after termination of this Agreement or Fraud orAgreement, to pay Parent the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If this Agreement is terminated pursuant to Section 7.1(b)(i) or Section 7.1(e)(v) and (i) at any time on or after the date hereof and prior to such termination a bona fide Acquisition Proposal shall have been made to the Company fails Board or the Company or publicly announced, and (ii) within twelve months after the date of such termination, the Company enters into a definitive acquisition agreement (or other Contract setting forth the material terms of the Acquisition Proposal) with respect to timely pay an amount due pursuant to this Section 8.3any transaction specified in the definition of “Acquisition Proposal” or any such transaction is consummated, then the Company shall pay Parent interest on the Termination Fee no later than three Business Days after such amount at event. For purposes of this Section 7.3(c), references in the prime rate as published in The Wall Street Journal in effect on the date such payment was required definition of “Acquisition Proposal” to “20%” and “80%” shall be made plus 3% per annum through the date such payment is actually receivedreplaced by a “majority.”
(d) The parties acknowledge Company acknowledges that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the parties Parent would not enter have entered into this Agreement; accordingly, if the Company fails to promptly pay any amounts due pursuant to this Section 7.3 and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the Termination Fee, the Company shall pay to Parent Parent’s reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such suit, together with interest on the amounts owed at the prime lending rate prevailing at such time, as published in the Wall Street Journal, plus two percent per annum from the date such amounts were required to be paid until the date actually received by Parent. The Company acknowledges that it is obligated to pay to Parent any amounts due pursuant to this Section 7.3 whether or not the stockholders of the Company have adopted this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(bi) In the event that:
(i) that (1) This this Agreement shall have been terminated pursuant to (xSection 9.1(b)(i), Section 9.1(b)(iv), or Section 9.1(c)(i) due to a breach by Parent of Section 8.1(b)(i) [End Date]7.6, Section 7.8 or Section 7.12, (y2) Parent or any other Person shall have publicly disclosed or announced a Parent Alternative Proposal made on or after the date of this Agreement but prior to the Parent Meeting, and such Parent Alternative Proposal has not been withdrawn at least five (5) days prior to the date of the Parent Meeting (or prior to the termination of this Agreement if there has been no Parent Meeting) and (3) within nine (9) months of such termination, such Parent Alternative Proposal is consummated; provided that, for purposes of this subclause (3), the references to “20%” in the definition of “Parent Alternative Proposal” shall be deemed to be references to “more than 80%”; (or) (ii) the Company shall have terminated this Agreement pursuant to Section 8.1(b)(iii9.1(c)(ii); then, Parent shall, (A) [Failure in the case of clause (i) above, upon the consummation of a Parent Alternative Proposal, and (B) in the case of clause (ii) above, within two (2) Business Days of such termination, pay the Company (or one or more of its designees) the Parent Termination Fee by wire transfer of immediately available funds to Obtain one or more accounts designated by the Company; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Following receipt by the Company Stockholder Approval] (or (zone or more of its designees) of the Parent Termination Fee in accordance with this Section 8.1(d)(ii) [9.3(a), Parent shall have no further liability with respect to this Agreement or the transactions contemplated herein to the Company or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of Reps and Warranties this Agreement or Covenants]Fraud.
(b) (i) In the event that (1) this Agreement shall have been terminated pursuant to Section 9.1(b)(i), Section 9.1(b)(iii), or Section 9.1(d)(i) due to a breach by the Company of Section 7.5 or Section 7.12 (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the date of termination, and such Company Alternative Proposal has not been withdrawn at least five (5) days prior to the earlier of (x) the Company Meeting and (y) Expiration Date or prior to the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve nine (129) months of such termination, any transaction constituting any such Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executedconsummated; provided, provided that, for purposes of this clause subclause (i3), the references to “20% or more%” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% more than 80%”; or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) the Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]9.1(d)(ii); then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any a Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case Fee by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Feeoccasion. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b9.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud orFraud.
(c) In the event that this Agreement shall have been terminated pursuant to Section 9.1(b)(v) on or after 1 August 2022, to the extent Parent shall, within ten (10) Business Days of such termination, pay the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paidone or more of its designees) an amount equal to USD 50,000,000 by wire transfer of immediately available funds to one or more accounts designated by the Company. Following receipt by the Company Termination Fee less (or one or more of its designees) of such amount in accordance with this Section 9.3(c), Parent shall have no further liability with respect to this Agreement or the No Vote Termination Feetransactions contemplated herein to the Company or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud.
(cd) If the Company either party fails to timely pay an amount due pursuant to this Section 8.39.3, the Company defaulting party shall pay Parent the non-defaulting party interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(de) The parties acknowledge that the agreements contained in this Section 8.3 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
(f) The parties intend and shall use all reasonable endeavours to secure that the Parent Termination Fee and the Company Termination Fee (together, the “Termination Fees”), if paid, being compensatory in nature, shall not be treated for VAT purposes as consideration for a taxable supply. If, however, a Termination Fee is treated by any Governmental Entity, in whole or in part, as consideration for a taxable supply and a Governmental Entity determines that VAT is due: (i) in the case where VAT is due from the payee of the relevant Termination Fee (or the representative member of the group of which the payee is a party), the Termination Fee shall be inclusive of any such VAT; and (ii) in the case where VAT is due from the payor of the relevant Termination Fee (or the representative member of the group of which the payor is a party) under the reverse charge mechanism or under any similar mechanism outside the European Union or the United Kingdom, the amount of the relevant Termination Fee shall be reduced to such amount so that the aggregate of the relevant Termination Fee and such reverse charge VAT equals the amount of the relevant fee had no such reverse charge VAT arisen.
Appears in 1 contract
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated (i) by Parent pursuant to Section 9.01(g)(i) or Section 9.01(c) as a result of the Company Shareholders' Approval not being obtained and at such time no Alternative Proposal has been made and remains outstanding or (ii) by the Company pursuant to Section 9.01(f)(i) or Section 9.01(c) as a result of Parent Shareholders' Approval not being obtained, then in (A) the event of termination pursuant to Section 9.01(g)(i) or Section 9.01(c) as a result of the Company Shareholder's Approval not being obtained and at a time when no Alternative Proposal remains outstanding the Company shall pay to Parent and (B) in the event of termination pursuant to Section 9.01(f)(i), or Section 9.01(c) as a result of Parent Shareholders' Approval not being obtained, Parent shall pay to the Company, promptly (but no later than five (5) business days after the date of termination of this Agreement), cash in an amount equal to all documented out-of-pocket expenses and fees incurred by the party arising out of, or in connection with or related to, the Merger and other transactions contemplated hereby, not in excess of $10 million (the "Out-of-Pocket Expenses").
(b) In the event that:
that this Agreement is terminated (i) (1) This Agreement shall have been terminated by the Company pursuant to Section 9.01(f)(iii) or (xii) by Parent pursuant to Section 8.1(b)(i9.01(g)(ii), and, in the case of a termination under clause (A) [End Date]of Section 9.01(g)(ii) is as a result of an action by the Board of Directors of the Company prior to obtaining the Company Shareholders' Approval, then (A) in the event of termination pursuant to Section 9.01(g)(ii), the Company shall pay to Parent and (B) in the event of termination pursuant to Section 9.01(f)(iii) as a result of an action by the Board of Directors of the Parent prior to obtaining the Parent Shareholders' Approval, Parent shall pay to the Company, (ypromptly but in each case no later than five (5) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or business days after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement Agreement) by wire transfer of same day funds, a termination fee of $100,000,000, plus, in each case, the circumstances set forth in clause terminating party's Out-of-Pocket Expenses.
(i)(1c) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause In the event that (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company pursuant to Section 9.01(e) or (ii) any person or group shall have made an Alternative Proposal that has not been withdrawn and this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii9.01(g)(i) [Failure to Obtain Company Stockholder Approval]; then, or Section 9.01(c) as a result of the Company shallShareholders' Approval not being obtained or by the Company pursuant to Section 9.01(b) and, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of this clause (ii) aboveonly, concurrently with, and as a condition definitive agreement with respect to the effectiveness of such Alternative Proposal is executed within two years after such termination, pay (or cause to be paid) Parent (or one or more of its designees) then the Company Termination Fee; (C) in the case of clause (iii) aboveshall pay to Parent, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one same day funds, either on the date contemplated in Section 9.01(e) if applicable, or more accounts designated by Parent; it being understood that in no event shall otherwise, within five (5) business days after such termination, a termination fee of $100,000,000, plus the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Out-of-Pocket Expenses of Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes not otherwise payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received9.03(a) above.
(d) If this Agreement is terminated by the Company, pursuant to Section 9.01(f)(ii) and the failure by Parent referred to in such Section is because of the occurrence of any significant disruptions in the financial or capital markets which make it impracticable for a company having financial characteristics similar to those of Parent as of the date of this Agreement to finance a transaction of the size and nature as that contemplated hereunder on commercially reasonable financing terms that are available as of the date of such financing (a "Financial Disruption"), then Parent shall pay to the Company a termination fee of $100,000,000. The parties hereby acknowledge that a failure by Parent to deliver or cause to be delivered the agreements contained appropriate amount of cash as a result of a Financial Disruption shall not constitute a willful breach of any representation, warranty, covenant or agreement of Parent hereunder. (e) In the event this Agreement is terminated by Parent pursuant to Section 9.01(h), then Parent shall pay the Company, in this Section 8.3 are an integral part cash by wire transfer of same day funds within five (5) business days of such termination notice, a termination fee of $75,000,000 (the "Regulatory Termination Fee") plus the Out-of-Pocket Expenses of the transactions contemplated Company; provided, however, that the Regulatory Termination Fee shall not be payable to the Company if the failure to obtain the 1935 Act Order by the twelve (12) month anniversary of the date on which the Company Shareholders' Approval is obtained has been caused by breach of this Agreement and that, without these agreements, by the parties would not enter into this AgreementCompany after the date hereof.
Appears in 1 contract
Termination Fees. (a) [Reserved].
If Company Member terminates this Agreement (b) In or could have terminated this Agreement but for the event that:
(i) (1) This prior termination of this Agreement shall have been terminated by Parent pursuant to Section 8.01(b)(ii) or Section 8.01(d)) pursuant to (w) Section 8.01(c)(i), (x) Section 8.1(b)(i) [End Date]8.01(c)(ii), (y) Section 8.1(b)(iii8.01(d) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii8.01(c)(iii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes case of this clause (iz), all of the conditions to Parent’s obligations to consummate the Closing under Section 7.02 (other than Section 7.02(d)) have been satisfied (other than any such conditions (x) which by their nature are to be satisfied by the Closing Date or (y) that have not been satisfied as a result of Parent’s failure to fulfill any of its obligations under this Agreement or perform or comply with any of the covenants, agreements, or conditions hereof to be performed or complied with by Parent prior to the Closing), the references to “20% or more” in the definition of “parties agree that Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company Member shall have terminated this Agreement pursuant suffered a loss and value to Section 8.1(c)(ii) [the Company Superior Proposal];
(iii) of an incalculable nature and amount, unrecoverable in Law, and Parent shall have terminated this Agreement pursuant pay to Section 8.1(d)(i) [Company Change Member a fee of Recommendation]; or
$28.84 million (iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company “Reverse Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company Parent be required to pay the Company Termination Fee or the No Vote Reverse Termination Fee on more than one occasion andoccasion. The Reverse Termination Fee shall be payable in immediately available funds by wire transfer no later than ten Business Days after such termination.
(b) If Parent terminates this Agreement pursuant to Section 8.01(b)(i), the parties agree that Parent shall have suffered a loss and value of an incalculable nature and amount, unrecoverable in Law, and Company Member shall pay to Parent a fee of $10.0 million (the “Initial Termination Fee”), it being understood that in no event shall Company Member be required to pay the Initial Termination Fee on more than one occasion. The Initial Termination Fee shall be payable in immediately available funds by wire transfer no later than ten Business Days after such termination.
(c) If Parent has terminated this Agreement pursuant to Section 8.01(b)(i) and if within one year of the termination of this Agreement, Company Member, the Company or their respective Affiliates close a transaction of the type that would have constituted an Acquisition Proposal, Company Member shall pay to Parent an additional fee equal to the lesser of (x) $18,840,000 and (y) the amount by which the equity consideration received from such transaction exceeds $385 million (the “Subsequent Termination Fee”), it being understood that in no event shall Company Member be required to pay the Subsequent Termination Fee becomes on more than one occasion. The Subsequent Termination Fee shall be payable in immediately available funds by wire transfer no later than ten Business Days after consummation of such transaction.
(d) Notwithstanding anything to the contrary in this Agreement, Company Member’s receipt of the Reverse Termination Fee pursuant to this Section 8.03 shall be the sole and exclusive remedy of Company Member or any of its Affiliates against Parent following or any of Parent’s Affiliates or any of their respective Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Reverse Termination Fee in accordance with this Section 8.3(b), 8.03 none of the Company Parent or any of Parent’s Affiliates or any of their respective Representatives shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein by this.
(e) Notwithstanding anything to the contrary in this Agreement, Parent’s receipt of the Initial Termination Fee and Subsequent Termination Fee pursuant to this Section 8.03 shall be the sole and exclusive remedy of Parent or any of its Subsidiaries Affiliates against Company Member or any of Company Member’s Affiliates or any other Personof their respective Representatives for any and all losses that may be suffered based upon, other than resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Initial Termination Fee and Subsequent Termination Fee in respect accordance with this Section 8.03 none of Willful and Material Breach the Company Member or any of Company Member’s Affiliates or any of their respective Representatives shall have any further liability or obligation relating to or arising out of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feetransactions contemplated by this.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(df) The parties acknowledge that the agreements contained in this Section 8.3 8.03 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the parties would not enter into this Agreement. If Parent fails promptly to pay the Reverse Termination Fee or the Company Member fails to pay the Initial Termination Fee or Subsequent Termination Fee, as the case may be, and, in order to obtain such payment, the Company Member or Parent, as the case may be, commences an action or proceeding that results in a judgment against the other party for payment of the Reverse Termination Fee, the Initial Termination Fee or the Subsequent Termination Fee, as applicable, the Party responsible for the payment of any such fee shall pay to the other party, together with the Reverse Termination Fee, the Initial Termination Fee or the Subsequent Termination Fee, as applicable (a) interest on the Reverse Termination Fee, the Initial Termination Fee or the Subsequent Termination Fee, as applicable, from the date of termination of this Agreement, or in the case of the payment of a Subsequent Termination Fee, the date of such payment of the fee would have otherwise been due and payable, at a rate per annum equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the Termination Date or the date a Subsequent Termination Fee would have been otherwise due and payable, and (b) any and all reasonable legal fees incurred by the Company Member or Parent, as the case may be, in connection with any such action or proceeding.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In Any provision in this Agreement to the contrary notwithstanding, in the event that:
that (i) (1) This Agreement the Seller Representative shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii10.1(c) [Company Superior Proposal];
or Section 10.1(d) or (iiiii) Parent the Buyer or the Seller Representative shall have terminated terminate this Agreement pursuant to Section 8.1(d)(i10.1(b) [Company Change and in each case under clause (i) or (ii), at the time of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; thenany such termination, the Company shallconditions set forth in Section 7.1 (other than, (A) in the case of clause a termination under Section 10.1(b) or Section 10.1(c), conditions set forth in Section 7.1(b) or conditions in each of Section 7.1(a) and Section 7.1(b)) and Section 7.3 are satisfied (i) aboveother than those which by their terms are not capable of being satisfied until the Closing Date), upon then in any such case the earlier Buyer shall pay to the Company a fee of $60,000,000 in cash (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation “Buyer Termination Fee”), which amount shall not be subject to offset or deduction of any Company Alternative Proposalkind, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company Buyer be required to pay the Company Termination Fee or the No Vote Buyer Termination Fee on more than one occasion and provided that in the case of termination of this Agreement by the Seller Representative pursuant to Section 10.1(b), Buyer shall not be required to pay the Buyer Termination Fee to the Company in the event that Buyer provides written notice to the Seller Representative that Buyer will agree to waive the satisfaction of the conditions under Section 7.1 that give rise to the termination right under Section 10.1(b) and to consummate the Merger no later than two (2) Business Days following such written notice. The Buyer Termination Fee shall be paid by Buyer to the Company concurrent with termination of this Agreement by the Buyer or not later than two (2) Business Days following termination of this Agreement by the Company, as the case may be. Buyer acknowledges that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, the Company would not enter into this Agreement. Accordingly, if Buyer or Buyer Guarantor fails to promptly pay the Buyer Termination Fee and, in the event order to obtain such payment the Company Termination Fee becomes payable to Parent following payment of commences a suit which results in a judgment against Buyer or Buyer Guarantor for the No Vote Buyer Termination Fee, the amount of the No Vote Termination Fee actually paid Buyer and Buyer Guarantor shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less its costs and expenses (including reasonable attorneys’ fees) in connection with such suit, including interest which shall accrue for the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect period commencing on the date such payment was required Buyer Termination Fee became past due at a rate equal to be made plus 3% per annum through the date rate of interest publicly announced by JPMorgan Chase from time to time during such payment is actually receivedperiod as such bank’s prime lending rate.
(db) The parties Parties acknowledge that the agreements contained in this Section 8.3 10.2 are an integral part of the transactions contemplated by this Agreement and thatthat the Buyer Termination Fee is not a penalty, without these agreementsbut rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such Buyer Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and the expectation of consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, the parties would not enter into Company’s right to receive payment of the Buyer Termination Fee pursuant to this AgreementSection 10.2 or the guarantee thereof pursuant to the Buyer Guaranty Agreement and to require that the Buyer, Merger Sub and the Buyer Guarantor perform their respective obligations under this Section 10.2 and the Buyer Guaranty Agreement in accordance with their terms shall be the exclusive remedy of the Company and the Seller Representative against the Buyer, Merger Sub, the Buyer Guarantor or any of their respective stockholders, partners, members, directors, Affiliates, officers or agents for (x) any loss suffered as a result of any failure of the Merger to be consummated and (y) any other losses, damages, obligations or liabilities suffered as a result of or under this Agreement and the transactions contemplated hereby (without limiting the reimbursement and indemnity obligations arising under Section 6.2, Section 6.12 and Section 6.13), and none of Buyer, Merger Sub or the Buyer Guarantor, or any of their respective stockholders, partners, members, directors, officers or agents, as the case may be, shall have any liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby other than any such liability in respect of the Buyer Termination Fee and the Buyer Guaranty Agreement (without limiting the reimbursement and indemnity obligations arising under Section 6.2, Section 6.12 and Section 6.13).
Appears in 1 contract
Samples: Merger Agreement (Pq Corp)
Termination Fees. (a) [Reserved].
(b) In If, but only if, the event that:
Agreement is terminated by: (i) (1x) This Agreement shall have been terminated either Parent or the Company pursuant to (x) Section 8.1(b)(i) [End Date], (y) or Section 8.1(b)(iii) [Failure or by Parent pursuant to Obtain Company Stockholder Approval] Section 8.1(d)(i) or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants]8.1(d)(ii)(x), (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the Company (A) receives or has received a Competing Proposal from a Third Party after the date hereof, which Competing Proposal is publicly disclosed either (I) at or prior to the time of the Stockholders’ Meeting or (II) prior to the termination of this Agreement in the circumstances set forth in clause (i)(1) above if there has been no Stockholders’ Meeting, and (3B) within twelve (12) months of the termination of this Agreement, consummates a transaction in connection with a Competing Proposal (regardless of whether such termination, any transaction constituting any Company Alternative Competing Proposal is consummated the same one referred to in clause (A) above), then the Company shall pay, or cause to be paid, to Parent (or such person who may be designated by Parent) an agreement providing for any Company Alternative Proposal is executedamount equal to $50,000,000 (the “Termination Fee”) not later than the second (2nd) Business Day following the date of the consummation of such transaction arising from such Competing Proposal; provided, thathowever, that for purposes of this clause (iSection 8.3(a)(i), the references to “20% or morefifteen percent (15%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “more than fifty percent (50% or more%)”; and provided, further, that any Parent Expenses previously paid by the Company to Parent pursuant to Section 8.3(a)(ii) shall be credited towards the payment of the Termination Fee;
(ii) The Parent pursuant to Section 8.1(b)(iii) or Section 8.1(d)(i), the Company shall, subject to the delivery by Parent of an invoice therefor and reasonable documentation thereof, reimburse Parent for all Expenses by paying, or causing to be paid, to Parent the amount thereof not later than the second (2nd) Business Day following request therefor by Parent; provided, however, that the Company shall have terminated not be required to pay more than an aggregate of $9,500,000 pursuant to this Agreement Section 8.3(a)(ii) (the “Parent Expenses”);
(iii) the Company pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) or Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i8.1(d)(ii)(y), then the Company shall pay, or cause to be paid, to Parent the Termination Fee concurrently with such termination; provided, however, that in the event that this Agreement is terminated pursuant to Section 8.1(c)(ii) [or Section 8.1(d)(ii)(y) and either (x) such termination occurs on or before the Solicitation Period End Date, or (y) the Company Change enters into a definitive agreement with an Exempted Person with respect to a Superior Proposal in accordance with Section 6.6 on or before the Cut-Off Date, then the Company shall pay, or cause to be paid, to Parent, or such person who may be designated by Parent, a Termination Fee equal to $30,000,000 instead of Recommendation]$50,000,000; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii8.1(c)(i), Section 8.1(c)(iii) [Failure to Obtain Company Stockholder Approval]; thenor Section 8.1(c)(iv), the Company shall, then (A) in if the case proceeds of clause the Financing are unavailable at the Offer Closing (iwith respect to amounts required to consummate the Offer) aboveor the Merger Closing (with respect to amounts required to consummate the Merger) (other than as a result of a breach by Parent or Acquisition Sub of Section 6.12(b)) pursuant to the terms of the Financing Commitments, upon and all the earlier of conditions under Annex I or Section 7.1 or Section 7.2, as applicable, have been satisfied (x) other than those conditions that by their nature are to be satisfied at the execution of an agreement providing for any Company Alternative Proposal and (y) Offer Closing or the consummation of any Company Alternative ProposalMerger Closing, pay (as applicable), Parent shall pay, or cause to be paid) Parent (or one or more of its designees) , to the Company an amount equal to $50,000,000 (the “Reverse Termination Fee; ”) not later than the second (2nd) Business Day following such termination or (B) in if the case proceeds of clause the Financing are available to be drawn down at the Offer Closing (iiwith respect to amounts required to consummate the Offer) above, concurrently withor the Merger Closing (with respect to amounts required to consummate the Merger) pursuant to the terms of the Financing Commitments or if the failure of the proceeds of the Financing to be available to be drawn down at the Offer Closing (with respect to amounts required to consummate the Offer) or the Merger Closing (with respect to amounts required to consummate the Merger) pursuant to the terms of the Financing Commitments is the result of a breach by Parent or Acquisition Sub of Section 6.12(b), and all the conditions under Annex I or Section 7.1 or Section 7.2, as a condition applicable, have been satisfied (other than those conditions that by their nature are to be satisfied at the effectiveness of such terminationOffer Closing or the Merger Closing, pay as applicable) and the Offer Closing and the Merger Closing do not occur, then (y) Parent shall pay, or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Reverse Termination Fee less not later than the No Vote Termination Fee.
second (c2nd) If the Company fails to timely pay an amount due pursuant to this Section 8.3, Business Day following such termination; and (z) the Company shall pay be entitled to payment from Parent interest on such of an amount at equal to the prime rate as published Company’s aggregate losses, if any, in The Wall Street Journal excess of the Reverse Termination Fee resulting from Parent or Acquisition Sub’s material breach of this Agreement (but subject to the Parent Liability Limitation). For the avoidance of doubt and notwithstanding any other provision in effect on this Agreement to the date such payment was required to be made plus 3% per annum through contrary, the date such payment is actually received.
(d) The parties acknowledge aggregate liability of Parent and Acquisition Sub under this Agreement shall in no event exceed that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this AgreementParent Liability Limitation.
Appears in 1 contract
Samples: Merger Agreement (Gymboree Corp)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This If this Agreement shall have been terminated pursuant to SECTION 9.1(e), SECTION 9.1(f)(i), or SECTION
9.1 (xi) Section 8.1(b)(i) [End Date]then WPZ shall promptly, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or but in no event later than two business days after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement (or in the circumstances event of a termination pursuant to SECTION 9.1(i), on the date of termination), pay Parent an amount equal to $9,200,000 (the "Break-up Fee") plus all Expenses pursuant to SECTION 10.9(c), subject to the limitation on amount set forth therein. Payment of any amounts pursuant to this SECTION 9.3(a) shall be made as directed by Parent, by wire transfer in clause immediately available funds promptly, but in no event later than two business days following such termination (i)(1provided that in the event of a termination pursuant to SECTION 9.1(i), such payment shall be made on the date of termination).
(b) above If this Agreement shall have been terminated pursuant to SECTION 9.1(c) or SECTION 9.1(f)(ii) or SECTION 9.1(h), WPZ shall (i) promptly, but in no event later than two business days after the termination of this Agreement, pay the Expenses pursuant to SECTION 10.9 subject to the applicable limitations or amounts set forth therein as directed by Parent, by wire transfer in immediately available funds, except that WPZ shall not be required to pay Expenses in the event of termination of this Agreement pursuant to SECTION 9.1(c) that arises solely from a failure of SECTION 4.7 or 8.3(n), and (3ii) if within twelve six (126) months following the date of such termination, any (A) WPZ enters into a written agreement (other than a confidentiality agreement) with respect to a merger, consolidation, business combination or other similar transaction constituting any Company involving WPZ or a substantial portion of its assets (an "Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (iAcquisition"), the references to “20% or more” in the definition (B) any third party (other than an Affiliate of “Company Alternative Proposal” shall be deemed to be references to “Parent or Merger Subsidiary) acquires 50% or more”;
(ii) The Company shall have terminated this Agreement more of the then outstanding Shares from WPZ or pursuant to Section 8.1(c)(iia tender offer made to all shareholders (a "Stock Purchase") [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company then WPZ shall, (A) in the case of clause (i) above, upon the earlier closing of (x) the execution of an agreement providing for any Company such Alternative Proposal and (y) the consummation of any Company Alternative ProposalAcquisition or Stock Purchase, pay (Parent the Break-up Fee and all Expenses not previously paid or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) abovereimbursed by Parent, concurrently withas directed by Parent, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of in immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feefunds.
(c) If the Company fails to timely pay an amount due The payment of any Break-up Fee and/or Expenses pursuant to this Section 8.3, SECTIONS 9.3 or 10.9 shall be compensation for the Company shall pay loss suffered by Parent interest on such amount at as the prime rate as published in The Wall Street Journal in effect on result of the date such payment was required failure of the Merger to be made plus 3% per annum through the date such payment is actually receivedconsummated.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by Parent pursuant to Section 7.1(d) or by the Company pursuant to Section 7.1(h), then the Company shall pay to Parent the Company Termination Fee. The Company Termination Fee payable pursuant to this Section 7.3(a) shall be paid no later than the second (2nd) Business Day following termination pursuant to Section 7.1(d) and prior to or concurrently with any termination pursuant to Section 7.1(h).
(b) In the event that:
If (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in accordance with its terms, an Acquisition Proposal shall have become publicly known or delivered to the circumstances set forth Company Board and not withdrawn, (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section 7.1(b) where the failure of the Acceptance Time to occur prior to the Outside Date is attributable to the failure of the Minimum Condition to have been satisfied, or (B) by Parent pursuant to Section 7.1(e) for willful and material breach which willful and material breach is the principal factor in clause the failure of the Offer to be consummated (i)(1unless the Company Termination Fee provided in Section 7.3(a) above has already been paid pursuant to the terms thereof), and (3iii) within twelve (12) months of after such termination, any transaction constituting any (X) the Company Alternative shall have entered into a definitive agreement with respect to an Acquisition Proposal and an Acquisition Transaction for such Acquisition Proposal is subsequently consummated or (Y) consummates an agreement providing for any Acquisition Transaction, then the Company Alternative Proposal shall pay to Parent the Company Termination Fee (less, if applicable, the Expense Reimbursement previously paid to Parent by the Company) by wire transfer of same-day funds on the date such transaction is executedconsummated; provided, that, provided that solely for purposes of this clause (iSection 7.3(b), the all references to “20% or more” in the definition of “Company Alternative ProposalAcquisition Transaction” shall be deemed to be references to “50% or more”;80%.
(iic) The Company shall have terminated In the event that this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii7.1(f) [Failure or Section 7.1(g) (for willful and material breach), then Parent shall pay to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; . The Parent Termination Fee payable pursuant to this Section 7.3(c) shall be paid no later than the second (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (22nd) Business Days of such termination, pay Day following termination pursuant to Section 7.1(f) or Section 7.1(g) (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Parent Termination Fee be payable on more than one occasion).
(d) In the event this Agreement is terminated by Parent pursuant to Section 7.1(e) (for willful and material breach), then the Company be required shall reimburse Parent for its actual and reasonable out-of-pocket expenses in an amount not to exceed $5,333,960 (the “Expense Reimbursement”), by wire transfer of immediately available funds on the second business day following the date of such termination of this Agreement; provided, that the existence of circumstances which would require the Company Termination Fee (less any Expense Reimbursement previously paid to Parent by the Company) to become subsequently payable by the Company pursuant to Section 7.3(b) shall not relieve the Company of its obligations to pay the Expense Reimbursement pursuant to this Section 7.3(d); and provided, further, that the payment by the Company of the Expense Reimbursement pursuant to this Section 7.3(d) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable (less any Expense Reimbursement previously paid to Parent following payment of by the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid Company) pursuant to Section 7.3(b).
(e) All payments under this Section 7.3 shall be credited against made by wire transfer of immediately available funds to an account designated in writing by the Company Termination Fee. Following party to whom payment is owed.
(f) Subject to Section 8.7 and notwithstanding any other provision of this Agreement to the contrary, each of Parent and Purchaser acknowledges and agrees on behalf of itself and its Affiliates that its receipt by Parent (or one or more of its designees) of the Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b) and the Expense Reimbursement pursuant to Section 7.3(d), if applicable, shall, except in the case of Fraud or willful or intentional breach by the Company, constitute the sole and exclusive remedy under this Agreement of Parent and Purchaser and each of their Affiliates and Representatives, and the receipt of the Company Termination Fee and Expense Reimbursement, if applicable, shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Purchaser, each of their Affiliates and Representatives and any other Person in connection with this Agreement (and the termination hereof), the Offer, the Top-Up Option, the Merger and the other transactions contemplated hereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and none of Parent, Purchaser, their respective Affiliates or Representatives or any other Person shall be entitled to bring or maintain any Legal Proceeding against the Company or its Affiliates arising out of or in connection with this Agreement, the Offer, the Top-Up Option, the Merger or any of the other transactions contemplated hereby or thereby (or the No Vote abandonment or termination thereof) or any matters forming the basis for such termination.
(g) Subject to Section 8.7 and notwithstanding any other provision of this Agreement to the contrary, the Company acknowledges and agrees on behalf of itself, the Company Subsidiaries, its Affiliates and their respective current, former or future stockholders, general or limited partners, controlling persons, managers, members, employees, directors, officers, agents and each of their Representatives (collectively, the “Company Related Parties”), that the Company’s receipt of the Parent Termination Fee in accordance with this Section 8.3(b7.3(c), shall, except in the case of Fraud or willful or intentional breach by Parent or Purchaser, constitute the sole and exclusive remedy of the Company Related Parties against Parent, Purchaser, Sponsor, the Financing Sources or any of their respective former, current or future general or limited partners, shareholders, managers, members, directors, officers or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the transactions contemplated by this Agreement, the Equity Commitment Letter, the Debt Commitment Letter, the Debt Financing, the Guaranty, the Offer, the Top-Up Option, the Merger or the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this Agreement, the Equity Commitment Letter, the Guaranty, the Offer, the Top-Up Option, the Merger or the other Transactions. Notwithstanding any other provision of this Agreement to the contrary, the payment of the Parent Termination Fee shall be deemed liquidated damages for, and none of the Parent Related Parties shall have no any further liability or obligation relating to or arising out, of this Agreement the Equity Commitment Letter, the Debt Commitment Letter, the Debt Financing, the Guaranty, the Offer, the Top-Up Option, the Merger or the other Transactions, and neither the Company nor any other Person shall be entitled to bring or maintain any Legal Proceedings against Parent, Purchaser or any other Parent Related Parties arising out of or in connection with respect the foregoing (or the abandonment or termination thereof) or any matters forming the basis of such termination. The Company shall not be entitled to specific performance under Section 8.7 if Parent has paid in full, and the Company has accepted, the Parent Termination Fee and in no event shall the Company or its Affiliates be permitted or entitled to receive both a grant of specific performance and the Parent Termination Fee; provided, however, and, for further clarity, in any circumstance where performance by Parent or Purchaser of its obligations under this Agreement would relieve Parent of its obligation to pay the Parent Termination Fee the Company may, in its sole discretion: (i) seek specific performance pursuant to Section 8.7(b), (ii) withdraw any claim for specific performance and require payment of the Parent Termination Fee if entitled to payment of the Parent Termination Fee under Section 7.3(c), or (iii) if the Company is unable for any reason to obtain specific performance, require payment of the Parent Termination Fee if entitled to payment of the Parent Termination Fee under Section 7.3(c).
(h) Notwithstanding anything to the contrary in this Agreement, in no event shall (i) any Parent Related Party, excluding Sponsor, Parent and Purchaser) have any liability for monetary damages to the Company or the Company Subsidiaries or any other Company Related Party (whether at law, in contract, in tort or otherwise) relating to or arising out of this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personhereby, other than Sponsor’s obligations under the Guarantee and the Equity Commitment Letter and other than the obligations of Parent and Purchaser as provided herein, or (ii) any former, current or future general or limited partners, equity holders, directors, officers, employees, managers, members, Affiliates or agents of the Company or any Company Subsidiaries have any liability to Sponsor, Parent or Purchaser or any Related Party for monetary damages (whether at law, in respect of Willful and Material Breach contract, in tort or otherwise) relating to or arising out of this Agreement or Fraud orthe transactions contemplated hereby. In no event shall the Company seek or obtain, nor shall it permit any of its Representatives to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery or monetary award against any Related Party with respect to, this Agreement, the Equity Commitment Letter or the Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Purchaser), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure, other than from Parent or Purchaser to the extent expressly provided for in this Agreement or Sponsor to the extent expressly provided for in the Guarantee or the Equity Commitment Letter. Neither Parent nor Purchaser shall be entitled to specific performance under Section 8.7 if the Company has paid in full, and Parent or Purchaser has accepted, the Company Termination Fee becomes payable and in no event shall Parent or Purchaser or their respective Affiliates be permitted or entitled to Parent following payment receive both a grant of specific performance and the No Vote Company Termination Fee; provided, however, and, for further clarity, in any circumstance where performance by the Company of its obligations under this Agreement would relieve the Company of its obligation to pay the Company Termination Fee, Parent may, in its sole discretion: (i) seek specific performance pursuant to Section 8.7, (ii) withdraw any obligation to pay (or cause to be paid) an amount equal to claim for specific performance and require payment of the Company Termination Fee less if entitled to payment of the No Vote Company Termination FeeFee under Section 7.3(a), or (iii) if Parent is unable for any reason to obtain specific performance, require payment of the Company Termination Fee if entitled to payment of the Company Termination Fee under Section 7.3(a).
(ci) If Notwithstanding anything to the contrary in this Agreement, (i) no Company Related Party shall have any rights or claims against any of the Financing Sources in connection with this Agreement, the Debt Financing or the transactions contemplated hereby or thereby, whether at law, in contract, in tort or otherwise; and (ii) no Financing Source shall have any liability or obligation to the Company or any of its stockholders, Affiliates, directors, officers, employees, controlling persons or agents relating to or arising out of this Agreement, the Debt Financing or the transactions contemplated hereby or thereby. For the avoidance of doubt, nothing contained herein shall restrict the ability of the Company to seek specific performance of Parent’s or Purchaser’s obligations hereunder in connection with the Debt Financing pursuant to and in accordance with Section 8.7.
(j) Notwithstanding anything to the contrary in this Agreement, except in the case of Fraud, in no event shall the Company Related Parties be entitled to monetary recovery, award or fees in excess of the amount of $64,007,521 in the aggregate (the “Parent Liability Limitation”) for, or with respect to, this Agreement, the Equity Commitment Letter or the Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Purchaser), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure. Except in the case of Fraud, in no event shall the Company Related Parties seek or obtain, nor shall they permit any of their Representatives or any other Person on their behalf to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery, award or fees in excess of the Parent Liability Limitation against the Parent Related Parties, and in no event shall the Company or any Company Subsidiary be entitled to seek or obtain any monetary recovery, award or fees of any kind in excess of the Parent Liability Limitation against the Parent Related Parties, including consequential, special, indirect or punitive damages for, or with respect to, this Agreement, the Equity Commitment Letter or the Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Purchaser), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure.
(k) Each of the Company and Parent acknowledges and agrees that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, 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 timely pay an amount the fee due pursuant to this Section 8.37.3, and, in order to obtain such payment, Parent or the Company commences litigation that results in an award against the other party for such fee, the Company or Parent, as the case may be, shall pay Parent to the other party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such litigation, together with interest on the amount of the applicable fee from the date such amount payment was required to be made until the date of 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 plus 3% per annum through the date such payment is actually receivedmade.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This this Agreement shall have been is terminated pursuant to Section 8.1(c)(i) (xas a result of the failure of the Minimum Condition) or Section 8.1(b)(i8.1(e) [End Date](provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 8.1(e)), (yB) Section 8.1(b)(iiiprior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) [Failure to Obtain within one hundred eighty (180) days after such termination, the Company Stockholder Approval] consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (zother than Parent of an Affiliate thereof) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the sale of more than fifteen percent (15%) (in voting power) of the voting securities of the Company or any other Person shall have publicly disclosed the sale of fifteen percent (15%) or announced a more (in fair market value) of the assets of the Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of Person making such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Acquisition Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement is terminated pursuant to Section 8.1(c)(ii) [Company Superior Proposal];); or
(iii) Parent shall have terminated this Agreement is terminated pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 8.1(g), then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3event, the Company shall pay Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $1,250,000 (the "Termination Fee") plus Parent's actual out-of-pocket expenses incurred in connection with the Transactions, which amounts shall be payable in immediately available funds.
(b) Except as set forth in this Section 8.3, all costs and expenses incurred in connection with this Agreement and the Transactions (including reasonable attorneys' fees and expenses) shall be paid by the party incurring such expenses, whether or not any Transaction is consummated.
(c) In the event that the Company shall fail to pay all or any portion of the Termination Fee, the Company also shall pay to Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect unpaid amount, commencing on the date that such payment was required amount becomes due, at a rate equal to be made the rate of interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus 3% per annum through the date such payment is actually receivedtwo percent (2%).
(d) The parties acknowledge that If paid, the agreements contained Termination Fee and expenses provided for in this Section 8.3 are an integral part intended to be the sole and exclusive remedy with respect to any liability for a breach of the transactions contemplated by this Agreement by the Company (other than a willful and that, without these agreements, material breach of this Agreement by the parties would not enter into this AgreementCompany).
Appears in 1 contract
Samples: Merger Agreement (Tender Loving Care Health Care Services Inc/ Ny)
Termination Fees. (a) [Reserved].
(b) In the event thatIf this Agreement is terminated by:
(i) (1) This Agreement shall have been terminated Parent pursuant to (xSection 7.1(d)(i) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] on the basis of a breach of a covenant or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties agreement contained in this Agreement or Covenants], (2) either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any other Person shall have publicly disclosed such case (A) prior to such termination (or announced prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Alternative Acquisition Proposal that has been made on or after the date of this Agreement but shall have been publicly disclosed and not publicly withdrawn prior to the earlier of (x) the Company Meeting such date and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3B) within twelve (12) months of after such termination, any transaction constituting any a Company Alternative Acquisition Proposal is consummated or an the Company enters into a definitive agreement providing for any with respect to a Company Alternative Proposal Acquisition Proposal, which transaction is executed; thereafter consummated (regardless of when such transaction is consummated) (provided, thathowever, that for purposes of this clause (iSection 7.3(a)(i)(B), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];7.1(c)(iii); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]7.1(d)(ii); then, in any such case, the Company shallshall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same-day funds to the account or accounts designated by Parent, (Ax) in the case of clause (i) above, upon on the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) same day as the consummation of any Company Alternative Proposalthe transaction contemplated therein, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (By) in the case of clause (ii) above, concurrently with, immediately prior to or simultaneously with such termination and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (Cz) in the case of clause (iii) above, within two promptly, but in no event later than three (23) Business Days after the date of such termination.
(b) If this Agreement is terminated by:
(i) the Company pursuant to Section 7.1(c)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iv), pay and in any such case (A) prior to such termination (or prior to the Parent Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iv)), a Parent Acquisition Proposal that has been made after the date of this Agreement shall have been publicly disclosed and not publicly withdrawn prior to such date and (B) within twelve (12) months after such termination, a Parent Acquisition Proposal is consummated or Parent enters into a definitive agreement with respect to a Parent Acquisition Proposal, which transaction is thereafter consummated (regardless of when such transaction is consummated) (provided, however, that for purposes of this Section 7.3(b)(i)(B), the references to “twenty percent (20%)” in the definition of Parent Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) Parent pursuant to Section 7.1(d)(iii); or
(iii) the Company pursuant to Section 7.1(c)(ii); then, in any such case, Parent shall pay, or cause to be paid) Parent (or one or more of its designees) , to the Company the Parent Termination Fee; and . Any payments required to be made under this Section 7.3(b) shall be made by wire transfer of same-day funds to the account or accounts designated by the Company, (Dx) in the case of clause (ivi) above, within two on the same day as the consummation of the transaction contemplated therein, (2y) in the case of clause (ii) above, immediately prior to or simultaneously with such termination and (z) in the case of clause (iii) above, promptly, but in no event later than three (3) Business Days after the date of such termination.
(c) In the event this Agreement is terminated by (i) either Parent or the Company pursuant to Section 7.1(b)(iii), pay (ii) the Company pursuant to Section 7.1(c)(iv) or cause (iii) Parent pursuant to Section 7.1(d)(i) or Section 7.1(d)(iv) and any of (A) (x) a breach or inaccuracy in any representation, warranty or covenant contained in Section 3.27 and the fact or facts giving rise to such breach or inaccuracy causes Parent Tax Counsel to be paidunwilling or unable to deliver the opinion described in Section 6.2(e) and (y) either Company Tax Counsel or the Additional Tax Counsel is unwilling or unable to deliver the opinion described in Section 6.2(e) for any reason or (B) the Company fails to comply with Section 5.15, then the Company shall pay Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds funds) the reasonable and documented out-of-pocket costs and expenses, including all fees and expenses incurred in connection with the financing of the transactions contemplated by this Agreement and the fees and expenses of counsel, accountants, investment bankers, experts and consultants, incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to one exceed $85,000,000 (the “Parent Expenses”); provided that any payment of the Parent Expenses shall not affect Parent’s right to receive any Company Termination Fee otherwise due under Section 7.3(a), but shall reduce, on a dollar-for-dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a).
(d) In the event this Agreement is terminated by either Parent or more accounts designated the Company pursuant to Section 7.1(b)(iv), then Parent shall pay the Company (by Parentwire transfer of immediately available funds) the reasonable and documented out-of-pocket costs and expenses, including the fees and expenses of counsel, accountants, investment bankers, experts and consultants, incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to exceed $56,000,000 (the “Company Expenses”); it being understood provided that any payment of the Company Expenses shall not affect the Company’s right to receive any Parent Termination Fee otherwise due under Section 7.3(b), but shall reduce, on a dollar-for-dollar basis, any Parent Termination Fee that becomes due and payable under Section 7.3(b).
(e) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that in no event shall either the Company or Parent be required to pay the Company Termination Fee or the No Vote Parent Termination Fee Fee, as applicable, on more than one occasion andoccasion.
(f) Notwithstanding anything to the contrary set forth in this Agreement, in the event Parent’s right to receive payment from the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or pursuant to Section 7.3(a) and/or the No Vote Termination Fee in accordance with this right to receive payment of the Parent Expenses pursuant to Section 8.3(b7.3(c), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personshall, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent circumstances in which the Company Termination Fee becomes payable or Parent Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than (i) in the event of a termination pursuant to Parent following payment Section 7.1(d)(ii)(B) and (C), (ii) in the event of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to intentional breach by the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this of Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this 5.15 or a fraudulent breach of Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.3.27 and
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This this Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date] (provided, in the case of a termination by Parent, Company had the right to terminate this Agreement pursuant to Section 8.1(b)(i) [End Date], or Company had the right to terminate this Agreement pursuant to Section 8.1(c)(i) [Parent Change in Recommendation], Section 8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants] or Section 8.1(c)(iii) [Parent Breach of No Solicitation]), (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder ApprovalParent No-Vote] or (z) Section 8.1(d)(ii8.1(c)(ii) [Company Parent Breach of Reps and Warranties or Covenants], (2) the Company Parent or any other Person shall have publicly disclosed or announced a Company Parent Alternative Proposal made on or after the date of this Agreement but prior to the earlier Parent Meeting, and such Parent Alternative Proposal has not been publicly withdrawn (A) in the case of clause (x1)(x) above, prior to the Company Meeting End Date, (B) in the case of clause (1)(y) above, at least five (5) days prior to the date of the Parent Meeting, and (yC) the termination of this Agreement in the circumstances set forth in case of clause (i)(11)(z) above above, prior to a material breach that gives rise to Company’s termination right pursuant to Section 8.1(c)(ii), and (3) within twelve (12) months of such termination, any transaction constituting any Company a Parent Alternative Proposal is consummated or an agreement providing for any Company a Parent Alternative Acquisition Agreement is entered into (which Parent Alternative Proposal is executedthereafter consummated); provided, provided that, for purposes of this clause (i3), the references to “20% or more%” in the definition of “Company Parent Alternative Proposal” shall be deemed to be references to “more than 50% %” and, in the case of clause (1)(x), references in this clause (3) to “Parent Alternative Proposal” shall be with the same Person or more”Affiliate of such Person that made the Parent Alternative Proposal that was made and not publicly withdrawn as set forth in clause (2) or with any other Person that submitted a subsequent Parent Alternative Proposal in response to any then pending Parent Alternative Proposal referenced in clause (2);
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii8.1(c)(i) [Company Superior ProposalParent Change in Recommendation] or Section 8.1(c)(iii) [Parent Breach of No-Shop];; or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i8.1(d)(ii) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder ApprovalSuperior Proposal]; then, the Company Parent shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company the Parent Alternative Proposal, pay (or cause to be paid) Parent Company (or one or more of its designees) the Company Parent Termination FeeFee less any amount previously paid under Section 8.3(b); (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of within two (2) Business Days after such termination, pay (or cause to be paid) Parent Company (or one or more of its designees) the Company Parent Termination Fee; and (C) in the case of clause (iii) above, within two (2) Business Days of such terminationupon the entry into a Parent Alternative Acquisition Agreement, pay (or cause to be paid) Parent Company (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by ParentCompany; it being understood that in no event shall the Company Parent be required to pay the Company Termination Fee or the No Vote Parent Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Feeoccasion. Following receipt by Parent Company (or one or more of its designees) of the Company Termination Fee or the No Vote Parent Termination Fee in accordance with this Section 8.3(b8.3(a), the Company Parent shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent Company or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeFraud.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Dril-Quip Inc)
Termination Fees. (a) [Reserved]If this Agreement is terminated pursuant to Section 8.1(b)(i) or 8.1(b)(ii) and, at the time of such termination, one or more conditions to Closing set forth in Section 7.1(a), 7.1(b), 7.2(g) or 7.3(e) (but for the purposes of Section 7.1(a), only if the applicable Restraint in whole or in part relates to the HSR Act, any other antitrust or competition Laws, or a Required Acquiror Consent) shall have not been satisfied but all other conditions to Closing set forth in Sections 7.1 and 7.2 have been satisfied (other than those conditions that by their nature only can be satisfied at the Closing but which conditions would be capable of being satisfied if the Closing were at the time of such termination), then Acquiror shall pay or cause to be paid to Seller a fee (the “Regulatory Termination Fee”) in cash equal to Fifty Million Dollars ($50,000,000).
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent Seller pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then8.1(e), the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, then Acquiror shall pay (or cause to be paid) Parent paid to Seller a fee (or one or more of its designees) the Company “Reverse Termination Fee; (B”, and together with the Regulatory Termination Fee, the “Termination Fees” and each a “Termination Fee”) in cash equal to One Hundred Million Dollars ($100,000,000).
(c) In any circumstance in which this Agreement is terminated and Seller has the case of clause (iiright to receive a Termination Fee pursuant to and in accordance with Section 8.3(a) aboveor 8.3(b), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to Termination Fee shall be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, paid within two (2) Business Days after the termination of such terminationthis Agreement, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company Acquiror be required to pay the Company Termination Fee or the No Vote cause to be paid any Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following occasion. Upon payment of the No Vote any Termination Fee, none of (i) Acquiror, (ii) the amount former, current or future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates (including Acquiror Parent and its Subsidiaries), members, managers, general or limited partners, stockholders, assignees of Acquiror, (iii) the Financing Sources or any of their respective former, current or future equityholders, controlling persons, directors, officers, employees, Affiliates, representatives, managers or agents or (iv) any holders or future holders of Equity Equivalents, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the No Vote Termination Fee actually paid foregoing (the Persons described in clauses (i), (ii), (iii) and (iv) shall be credited against collectively referred to as the Company Termination Fee. Following receipt by Parent (or one or more of its designees“Acquiror Group”) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no any further liability Liability with respect to this Agreement or the transactions contemplated herein hereby (including the Financing) to Parent or its Subsidiaries or Affiliates Seller, the Company Group or any other PersonPerson (whether at law, in equity, in contract, in tort or otherwise) (except with respect to any member of the Acquiror Group in the case of fraud by such member), and neither Seller, the Company Group nor any other Person shall have any claim or recourse against any member of the Acquiror Group as a result of the breach of any representation, warranty, covenant or agreement of Acquiror contained herein or otherwise arising out of or in connection with the transactions contemplated by this Agreement (including the Financing or the failure to consummate any of the foregoing) (except with respect to any member of the Acquiror Group in the case of fraud by such member). Notwithstanding anything to the contrary in this Agreement, in the event the Company Group receives any Termination Fee from Acquiror pursuant to and in accordance with Section 8.3(a) or 8.3(b), such payment shall be the sole and exclusive remedy of Seller, the Company Group and their respective Affiliates and, without limiting the foregoing, in no event shall (A) any member of the Company Group or any of its Subsidiaries, (B) Seller or any former, current or future, direct or indirect, stockholder, director, officer, employee, agent, representative, Affiliate or assignee of Seller, (C) any member of the Cotton Family or their respective Family Group or any former, current or future agent, representative, or Affiliate of any member of the Cotton Family, or (D) any former, current or future director, officer, employee, agent, representative, Affiliate or assignee of any of the foregoing (the Persons described in clauses (A), (B), (C) and (D) shall be collectively referred to as the “Seller Group”) seek, or permit to be sought, on behalf of any member of the Seller Group, or be entitled to any monetary damages from any member of the Acquiror Group in connection with this Agreement or any of the transactions contemplated hereby (including the Financing), other than (without duplication) payment of the Termination Fee from Acquiror to the extent provided in Section 8.3(a) or 8.3(b) (except with respect to any member of Willful and Material Breach the Acquiror Group in the case of fraud by such member). Nothing in this Section 8.3(c) shall in any way expand or be deemed to expand the circumstances in which Acquiror or any other member of the Acquiror Group may be liable under this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment any of the No Vote Termination Fee, any obligation to pay transactions contemplated hereby (or cause including the Financing). The provisions of this Section 8.3(c) are intended to be paid) an amount equal to for the Company Termination Fee less benefit of, and shall be enforceable by, each member of the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedAcquiror Group.
(d) The parties acknowledge Acquiror acknowledges that the agreements contained in this Section 8.3 Article VIII are an integral part of the transactions contemplated by this Agreement and Agreement, that, without these agreements, Seller and the parties Company Group would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty but constitute payment of liquidated damages and that Seller’s and the Company Group’s liquidated damages amount is reasonable in light of the substantial but indeterminate harm anticipated to be caused by Acquiror’s breach or default under this Agreement, the difficulty of proof of loss and damages and the inconvenience and non-feasibility of otherwise obtaining an adequate remedy. If Acquiror fails to pay the Termination Fee payable under Section 8.3(a) or 8.3(b), then Acquiror shall pay to Seller and its Affiliates all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) incurred by Seller and its Affiliates in connection with the collection of such overdue amounts and the enforcement by Seller of its rights under this Section 8.3(d), together with interest on such overdue amounts at a rate per annum equal to the “prime rate” (as announced by JPMorgan Chase Bank, N.A. or any successor thereto) in effect on the date on which such payment was required to be made.
Appears in 1 contract
Samples: Transaction Agreement (Wellcare Health Plans, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
If (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 7.1(h), (ii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii7.1(g), or (iii) [Failure (A) a Pre-Termination Takeover Proposal shall have been made and not publicly and definitively withdrawn at least five Business Days prior to Obtain the Company Stockholder Approval]; thenStockholders’ Meeting and thereafter this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d) and (B) at any time on or prior to the 12 month anniversary of such termination, the Company shallor any of its Subsidiaries enters into a definitive agreement with respect to any transaction included within the definition of Company Takeover Proposal (a “Company Takeover Transaction”) (whether or not involving the same Company Takeover Proposal as that which was the subject of the Pre-Termination Takeover Proposal but giving effect to the proviso to this Section 7.3(a)), (A) then the Company shall pay Parent the Company Termination Fee in immediately available funds in the case of clause (i) above), upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposalin accordance with Section 5.3(f), pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above), concurrently with, and as a condition to the effectiveness within two Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above), within two (2) Business Days upon the consummation of such terminationany Company Takeover Transaction; provided, pay (or cause to be paid) Parent (or one or more of its designees) that for the Company Termination Fee; and (D) in the case purposes of clause (iviii)(B) aboveonly, within two all references in the definition of Company Takeover Proposal to “20%” shall instead be references to “50%.”
(2b) Business Days For purposes of this Section 7.3, a “Pre-Termination Takeover Proposal” shall be deemed to occur if, after the date of this Agreement, (i) a Company Takeover Proposal (or an intention to make a Company Takeover Proposal) is made and publicly disclosed or (ii) any person (or Representative thereof acting on behalf of such termination, pay person) shall have publicly announced a Company Takeover Proposal (or cause an intention to be paidmake a Company Takeover Proposal) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeCompany.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Airgas Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:: ----------------
(i) (1A) This this Agreement shall have been is terminated pursuant to Section 9.1(c)(i) (xas a result of the failure of the Minimum Condition) or Section 8.1(b)(i9.1(e) [End Date](provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 9.1(e)), (yB) Section 8.1(b)(iiiprior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) [Failure to Obtain within one hundred eighty (180) days after such termination, the Company Stockholder Approval] consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (zother than Parent of an Affiliate thereof) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the sale of more than thirty-five percent (35%) (in voting power) of the voting securities of the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier Person making such Acquisition Proposal or the sale of thirty-five percent (x35%) or more (in fair market value) of the Company Meeting and (y) assets of the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”Company;
(ii) The Company shall have terminated this Agreement is terminated pursuant to Section 8.1(c)(ii) [Company Superior Proposal];9.1(c)(ii); or
(iii) Parent shall have terminated this Agreement is terminated pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; 9.1(g), then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3event, the Company shall pay Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $8,400,000 (the "Termination Fee"), which amount --------------- shall be payable in immediately available funds.
(b) Except as set forth in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the Transactions (including reasonable attorneys' fees and expenses) shall be paid by the party incurring such expenses, whether or not any Transaction is consummated.
(c) In the event that the Company shall fail to pay all or any portion of the Termination Fee, the Company also shall pay to Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect unpaid amount, commencing on the date that such payment was required amount becomes due, at a rate equal to be made the rate of interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus 3% per annum through the date such payment is actually receivedtwo percent (2%).
(d) The parties acknowledge that the agreements contained expenses provided for in this Section 8.3 9.3 are an integral part not intended to be exclusive remedies with respect to any liability for a breach of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement, and no party hereto shall be precluded from seeking damages or remedies or at law or in equity as a result of any such matter.
Appears in 1 contract
Termination Fees. (a) [Reserved]This Agreement may be terminated by:
(i) by mutual agreement of the parties at any time,
(ii) by either party, if, at the Stockholder Meeting (including any adjournment or postponement thereof), the Stockholder Approval shall have not been obtained;
(iii) by either party if any court of competent jurisdiction or any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restricting, enjoining, restraining or otherwise prohibiting the transactions contemplated hereby and such order, decree or ruling or other action shall have become final and nonappealable;
(iv) by the Company if (x) the Board of Directors of Proha fails to recommend the approval of this Agreement and the transactions contemplated hereby to its stockholders at a duly convened meeting or (y) the representation contained in Section 6.5(c) shall not be true and correct;
(v) by Proha if (x) the Board of Directors of the Company approves an Alternative Transaction, or (y) the Company otherwise materially breached the provisions of Sections 5.5 or 5.7 or (z) Section 5.1(a)(vi) of this Agreement; or
(vi) by Proha if (x) the Company shall have failed to obtain a fairness opinion as required by Section 5.12, or (y) the condition contained in Section 7.2(n) has not been satisfied and Proha has provided written notice to the Company of the same within the time frame specified in Section 7.2(n).
(b) In addition to the event that:foregoing, this Agreement shall automatically terminate and be of no further force and effect if the transactions contemplated hereby are not consummated on or prior to September 30, 2001.
(ic) (1) This If this Agreement shall have been is terminated pursuant to (x) by Proha in accordance with Section 8.1(b)(i9.4(a)(v) [End Date], (other than a termination pursuant to Section 9.4(a)(v)(z) prior to the delivery by Proha of the Artemis Entities U.S. GAAP Financial Statements) or Section 9.4(a)(vi)(x) or (y) by the Company in accordance with Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants]9.4(a)(iv), (2) the Company or Proha, as the case may be, shall (x) reimburse Proha or the Company, as the case may be, in immediately available funds for the out-of-pocket expenses of Proha or the Company, as the case may be, (including, without limitation, printing fees, filing fees and fees and expenses of its legal advisors and outside accountants (which shall include, in the case of Proha, all fees and expenses of its outside accountants incurred in connection with preparing the Artemis Entities U.S. GAAP Financial Statements)) related to this Agreement or the other Documents, the transactions contemplated hereby and thereby and any other Person shall have related financing, and (y) pay to Proha or the Company, as the case may be, in immediately available funds an amount equal to $250,000 (the "Termination Fee").
(d) If this Agreement is terminated by Proha or the Company pursuant to Section 9.4(a)(ii) hereof and (x) an Alternative Transaction has been made and publicly disclosed announced or announced a Company Alternative Proposal made on or communicated to the Company's shareholders after the date of this Agreement but and prior to the earlier of (x) Stockholders Meeting and, to the Company Meeting and extent applicable, (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) concurrently with or within twelve (12) months after the date of such terminationtermination the Company enters into a binding agreement with respect to such Alternative Transaction, any transaction constituting any then the Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause shall (i) within one (1) Business Day of the date of termination pursuant to Section 9.4(a)(ii) (A) pay to Proha 50% of the Termination Fee and (B) reimburse Proha in immediately available funds for the out-of-pocket expenses of Proha (including, without limitation, printing fees, filing fees and fees and expenses of its legal advisors and outside accountants (which shall include, in the case of Proha, all fees and expenses of its outside accountants incurred in connection with preparing the Artemis Entities U.S. GAAP Financial Statements)) related to this Agreement or the other Documents, the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
transactions contemplated hereby and thereby and any related financing, and (ii) The Company shall have terminated this Agreement pursuant within one (1) Business Day of the consummation of such Alternative Transaction (including any revisions or amendments thereto) pay to Section 8.1(c)(ii) [Company Superior Proposal];Proha 50% of the Termination Fee.
(iiie) Parent shall have terminated If this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee Proha in accordance with this Section 8.3(b9.4(a)(vi)(y), the Company shall have no further liability reimburse Proha in immediately available funds for the out-of-pocket expenses of Proha incurred after the date hereof (including, without limitation, printing fees, filing fees and fees and expenses of its legal advisors and outside accountants (including all fees and expenses of its outside accountants incurred in connection with respect preparing the Artemis Entities U.S. GAAP Financial Statements)) related to this Agreement or the transactions contemplated herein other Documents in an amount not to Parent or its Subsidiaries or Affiliates or any other Person, other than exceed $500,000 in respect of Willful and Material Breach the aggregate.
(f) No termination of this Agreement shall affect any party's liability for willful breach of this Agreement and, except for liability from a willful breach, or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.39.4(c), the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
or (d) The parties acknowledge that or (e), no party shall have any liability to the agreements contained other in this Section 8.3 are an integral part the event of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into a termination of this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement an Alternative Proposal that reasonably appears to be bona fide shall have been terminated pursuant made known to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or shall have been made directly to its stockholders generally or any other Person person shall have publicly disclosed announced an intention (whether or announced a Company not conditional or withdrawn) to make an Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed that reasonably appears to be references to “50% or more”;
bona fide and thereafter, (iiB) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii7.1(b)(i), Section 7.1(b)(iii) [Failure (so long as the Alternative Proposal was publicly disclosed and not withdrawn at the time of the Company Meeting) or Section 7.1(d)(i), and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal within twelve (12) months of the date this Agreement is terminated; provided that for purposes of this Section 7.2(a)(i), the references to Obtain "20%" in the definition of Alternative Proposal shall be deemed to be references to "50%;"
(ii) this Agreement is terminated by the Company Stockholder Approval]pursuant to Section 7.1(c)(ii); thenor
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(i), (ii) or (iii); provided, that in the event of a termination by Parent pursuant to Section 7.1(d)(i), without limiting Parent’s other rights and remedies under this Agreement, this Section 7.2(a)(iii) shall apply only in the event that the Company shall have willfully breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement; then in any such event under clause (i), (ii) or (iii) of this Section 7.2(a), the Company shall, shall pay to Parent a termination fee of $215 million in cash (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company “Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feeoccasion.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Kinder Morgan Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This this Agreement shall have been is terminated by Parent or the Company pursuant to (x) Section 8.1(b)(i) [End Date]6.1(d), (yB) Section 8.1(b)(iiiany Alternative Acquisition Proposal has been publicly announced or otherwise made publicly known by any Person (other than by Parent, Merger Sub or their respective Affiliates) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants]and, (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or in either case, not withdrawn after the date of this Agreement but prior to the earlier of Company Stockholders Meeting and (xC) the Company Meeting and (y1) the termination of this Agreement in the circumstances set forth in clause completes an Alternative Acquisition Proposal within nine (i)(1) above and (3) within twelve (129) months of the date this Agreement is terminated or (2) enters into a definitive agreement with respect to any Alternative Acquisition Proposal within nine (9) months of the date this Agreement is terminated, and such termination, any transaction constituting any Company Alternative Acquisition Proposal is consummated consummated, whether before or an agreement providing for any Company Alternative Proposal is executed; after such nine (9) month period (provided, that, that for purposes of this clause (iC), the references to “20% or more%” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “50% %”), then within two (2) Business Days of such completion or more”consummation, the Company shall pay to Parent the Company Termination Fee by wire transfer to an account specified in writing by Parent;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company pursuant to Section 6.1(f), then prior to or simultaneously with such termination the Company shall pay to Parent the Company Termination Fee by wire transfer to an account specified in writing by Parent; or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii6.1(e) [Failure to Obtain Company Stockholder Approval]; thenor Section 6.1(g), the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, then within two (2) Business Days of such termination, the Company shall pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case Fee by wire transfer of immediately available funds to one or more accounts designated an account specified in writing by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feeoccasion.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (ai) [Reserved]If this Agreement is terminated by Parent pursuant to Section 10.01(c)(i), then the Company shall pay the Company Termination Fee to Parent in immediately available funds within two (2) Business Days after such termination.
(bii) In If this Agreement is terminated by the event that:Company pursuant to Section 10.01(d)(i), then the Company shall pay the Company Termination Fee to Parent in immediately available funds substantially concurrently with such termination.
(iiii) If (1A) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but Agreement, a bona fide Acquisition Proposal shall have been publicly made to the Company or shall have been publicly made directly to the stockholders of the Company generally or shall have otherwise become publicly known (and, in any such case, such Acquisition Proposal is not withdrawn prior to the earlier of Offer Expiration Time), (xB) thereafter, this Agreement is terminated by Parent or the Company Meeting pursuant to Section 10.01(b)(i) (but only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 10.01(b)) or by Parent pursuant to Section 10.01(c)(ii) (as a result of a material breach by the Company of Section 6.03) and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3C) within twelve nine (129) months of after such termination, the Company enters into a definitive agreement with respect to an Acquisition Proposal and, at any transaction constituting any time thereafter, consummates such Acquisition Proposal, then the Company Alternative Proposal is consummated or an agreement providing for any shall pay to Parent the Company Alternative Proposal is executed; provided, that, for Termination Fee by wire transfer of same-day funds on the date of consummation of such Acquisition Proposal. For purposes of this clause (iSection 11.05(a)(iii), the all references to “20% or more%” in the definition of “Company Alternative Acquisition Proposal” shall be deemed to be references to “50% or more%”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in . In no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feeoccasion.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:If
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier termination of this Agreement, any Competing Proposal (xfor purposes of this subsection, substituting 50% for the 15% thresholds set forth in the definition of Competing Proposal) the Company Meeting is publicly proposed or publicly disclosed and not publicly withdrawn and (y) the termination of this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) (but in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months case of a termination by the Company, only if at such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall time Parent would not be deemed to be references to “50% or more”;
(ii) The Company shall have terminated prohibited from terminating this Agreement pursuant to Section 8.1(c)(ii8.1(b)) [Company Superior Proposal];
(iii) or by Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i8.1(e) [and (z) within nine (9) months after termination of this Agreement, the Company Change enters into any letter of Recommendation]intent, agreement in principle, acquisition agreement or other definitive agreement providing for any Competing Proposal or a transaction in respect of any Competing Proposal shall have been consummated; or
(ivii) This this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then8.1(f), then in any such event the Company shallshall pay to Parent a fee of $8,000,000 in cash (the “Company Termination Fee”), and the Company shall (Anotwithstanding the provisions of Section 8.2) have no further liability to Parent with respect to this Agreement or the transactions contemplated hereby, such payment to be made (x) in the case of clause (i) aboveSection 8.3(a)(i), upon the earlier of (x) the execution date on which the Company enters into such letter or agreement in respect of an agreement providing for any Company Alternative such Competing Proposal and or such Competing Proposal is consummated or (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) aboveSection 8.3(a)(ii), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within no later than two (2) Business Days after the termination of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parentthis Agreement; it being understood that in no event shall the Company be required to pay the fee referred to in this Section 8.3(a) on more than one occasion. Any such payment shall be reduced by any amount as may be required to be deducted or withheld therefrom under applicable Tax Law.
(b) If this Agreement is terminated (x) by the Company pursuant to Section 8.1(b) or Section 8.1(d) and at the time of such termination all conditions to Parent’s or Acquisition Sub’s obligation to consummate the Offer set forth in Annex I shall have been satisfied (other than any such conditions that have not been satisfied as a result of Parent’s or Acquisition Sub’s breach or failure to perform hereunder), and except insofar as any condition requires the delivery of officer’s certificates; (y) by the Company pursuant to Section 8.1(g); or (z) by Parent pursuant to Section 8.1(h), then in such event Parent shall pay to the Company the Parent Termination Fee in cash, such payment to be made in the case of clauses (x) or (y) above within two (2) Business Days after such termination or in the No Vote Termination Fee case of clause (z) immediately prior to and as a condition to such termination, it being understood that in no event shall Parent be required to pay the fee referred to in this Section 8.3(b) on more than one occasion and, in the event the Company Termination Fee becomes payable to and Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company and Acquisition Sub shall have no further liability to the Company or the other persons referred to in the second sentence of Section 8.4(a) with respect to this Agreement or the transactions contemplated herein hereby. Any such payment shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law. For the avoidance of doubt, if the Parent Termination Fee is payable and there is any dispute between the parties as to whether in such circumstance the Parent Termination Fee should be $60,000,000 or its Subsidiaries or Affiliates or any other Person$150,000,000, other than in respect of Willful and Material Breach of this Agreement or Fraud or, then Parent shall pay to the extent Company $60,000,000 within two (2) Business Days after such termination, or in the Company Termination Fee becomes payable case of clause (z) immediately prior to Parent following payment and as a condition to such termination, with the remainder (if any) of the No Vote Parent Termination fee remaining payable, and the Company’s acceptance of such $60,000,000 shall not in any way prejudice its rights to the remainder (if any) of the Parent Termination Fee, any obligation to pay (or cause to be paid) an amount equal notwithstanding anything to the Company Termination Fee less the No Vote Termination Feecontrary herein.
(c) If Each of the Company fails to timely pay an amount due pursuant to this Section 8.3Company, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge and Acquisition Sub acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreementsAgreement. In the event that the Company shall fail to pay the Company Termination Fee when due or Parent or Acquisition Sub shall fail to pay the Parent Termination Fee when due, the parties would not enter into Company or Acquisition Sub and Parent, as the case may be, shall reimburse the other party for all reasonable costs and expenses actually incurred or accrued by such other party (including reasonable Expenses of counsel) in connection with the collection under and enforcement of this AgreementSection 8.3.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) this Agreement is validly terminated by the Company or Parent pursuant to Section 7.01(b)(i) (1to the extent the Company Stockholder Approval was not obtained by the End Date) This Agreement or Section 7.01(b)(iii) or by Parent pursuant to Section 7.01(c)(i); provided that, (A) at the time of such termination, (I) the Company shall not have been terminated entitled to terminate this Agreement pursuant to Section 7.01(d)(i) and (II) none of Parent, Merger Sub I, Merger Sub II or any Sponsor is then in material breach of its representations, warranties, covenants or agreements under the Equity Funding Letters or the Termination Equity Commitment Letters, (B) (x) Section 8.1(b)(i) [End Date]a bona fide Takeover Proposal has been publicly made, proposed or communicated (and not withdrawn), or (y) Section 8.1(b)(iii) [Failure a bona fide Takeover Proposal has otherwise become known, disclosed or communicated to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or the Company Board, the Transaction Committee or any other Person shall have publicly disclosed or announced a committee of the Company Alternative Proposal made on or Board after the date of this Agreement but hereof and prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above Agreement, and (3C) within twelve (12) months of such terminationthe date this Agreement is terminated, any transaction constituting any the Company Alternative consummates, or enters into a definitive agreement with respect to, a Takeover Proposal that is later consummated (whether or not the Takeover Proposal is consummated with the person or an agreement providing for any Company Alternative persons that made the Takeover Proposal is executedreferred to in clause (B)); provided, further, that, for purposes of this clause (iB) and (C) of this Section 7.03(a)(i), the references to “20% or more%” in the definition of “Company Alternative Proposal” Takeover Proposal shall be deemed to be references to “50% or more%”;
(ii) The Company shall have terminated this Agreement is validly terminated by the Company pursuant to Section 8.1(c)(ii) [Company Superior Proposal];7.01(d)(ii); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is validly terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]7.01(c)(ii); then, in each case, the Company shallshall pay the Company Termination Fee to Parent or its designee by wire transfer of same-day funds, (Ax) in the case of Section 7.03(a)(i), within five (5) Business Days after the consummation of, the Takeover Proposal referred to in clause (ii)(C) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause Section 7.03(a)(ii), simultaneously with such termination and (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (Cz) in the case of clause (iii) aboveSection 7.03(a)(iii), within two five (25) Business Days of after such termination, pay termination (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the any Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(boccasion), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Radius Global Infrastructure, Inc.)
Termination Fees. (a) [Reserved]If this Agreement is terminated by (A) Parent pursuant to Section 7.1(g), then the Company shall pay to Parent, within three (3) business days after the date of termination, the Company Termination Fee by wire transfer of same day federal funds to the account specified by Parent, or (B) by the Company pursuant to Section 7.1(i), then the Company shall pay to Parent, on the date of such termination, the Company Termination Fee by wire transfer of same day federal funds to the account specified by Pxxxxx.
(b) In the event that:
If (iA) this Agreement is terminated by (1) This Parent pursuant to Section 7.1(f) or (2) Parent or the Company pursuant to Section 7.1(b) and, at the time of such termination, Parent could have terminated this Agreement pursuant to Section 7.1(f) in each case of clause (1) and (2), any Person (other than Parent, Merger Sub or any of their respective affiliates) shall have made an Acquisition Proposal, which shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] publicly announced or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or otherwise communicated to the Company Board and not have been unconditionally, and in the case of a publicly announced a Company Alternative Proposal made on or after the date of this Agreement but disclosed Acquisition Proposal, publicly withdrawn prior to the earlier of (x) the Company Meeting such termination, and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3B) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes termination of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b)Agreement, the Company shall have no further liability with respect consummated, or shall have entered into an agreement to this Agreement or consummate (which may be consummated after such twelve (12) month period) an Acquisition Transaction, then the transactions contemplated herein Company shall pay to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less Fee, by wire transfer of same day federal funds to the No Vote Termination Fee.
(c) If account specified by Parent, on the Company fails to timely pay an amount due pursuant to earlier of the public announcement of the Company’s entry into such agreement or the consummation of any such Acquisition Transaction. Solely for purposes of this Section 8.37.3(b), “Acquisition Transaction” shall have the Company meaning ascribed thereto in Section 5.3, except that all references to twenty-five percent (25%) shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required be changed to be made plus 3% per annum through the date such payment is actually receivedfifty percent (50%).
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In Except as set forth in this Section 0, all fees and expenses incurred in connection with this Agreement and the event that:
transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Transactions are consummated. Notwithstanding the foregoing, if (i) the Seller shall enter into a Superior Offer, then the Seller shall pay Parent a fee of $250,000 at the time the Seller or Parent terminates this Agreement, (1ii) This Agreement shall have been terminated the Seller terminates the Transactions pursuant to (x) this Section 8.1(b)(i) [End Date]0, other than pursuant to Sections 00, 0 or 0 hereof, the Seller shall pay all fees and expenses incurred by Parent and the Purchaser in connection with this Agreement and the Transactions, including, but not limited to, attorneys fees and other professional fees, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2iii) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) Seller enters into an agreement for an Acquisition Transaction within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes following the termination of this clause (i)Agreement, the references to “20% or more” Seller shall pay Parent the difference between $250,000 and such expense reimbursement set forth in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) if Parent (or one or more of its designees) terminates the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions transaction contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach hereby after execution of this Agreement (by both Parent and the Seller) pursuant to Section 9.1(b) or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If hereof, Parent shall pay the Company fails Seller a fee of $250,000 at the time Parent terminates the Purchase Agreement and (v) either Parent or the Seller terminates the transaction contemplated hereby after execution of this Agreement due to timely pay an amount due pursuant to this Section 8.3a breach of the other party, the Company non-breaching party shall pay Parent interest on be entitled, at its option, to extend the termination date set forth in Section 9.1(b) hereof or recover all fees and expenses incurred by such amount at the prime rate as published party in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by connection with this Agreement and thatthe Transactions, without these agreementsincluding, the parties would but not enter into this Agreementlimited to, attorneys fees and other professional fees.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Medical Technologies Inc/De)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal, or any Competing Proposal shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date]publicly made or disclosed, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement, (B) this Agreement but prior to the earlier of is subsequently terminated by (x) the Company Meeting and or Parent pursuant to Section 8.1(b)(iii) or (y) Parent pursuant to Section 8.1(d)(i) as a result of a knowing and intentional breach of any covenant or agreement under this Agreement by the Company, and any such Competing Proposal had not been withdrawn at least five (5) Business Days prior to the event giving rise to the termination of this Agreement in the circumstances set forth in clause (i)(1) above Agreement, and (3C) within twelve (12) months of such terminationtermination of this Agreement, any the Company consummates a transaction constituting any Company involving a Competing Proposal or enters into an Alternative Proposal is consummated or an agreement Acquisition Agreement providing for any Company Alternative the consummation of a Competing Proposal (which is executedsubsequently consummated); provided, thathowever, that for purposes of this clause (iSection 8.3(a)(i), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “fifty percent (50% or more%)”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then8.1(d)(ii), then the Company shall, (A) in the case of clause (i) above, upon on the earlier date of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative such transaction involving a Competing Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, prior to or substantially concurrently with, and as a condition to the effectiveness of with such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (C) in the case of clause (iii) above, within no later than two (2) Business Days after the date of such termination, pay (pay, or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by funds, at the direction of Parent; , the Termination Fee (it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion occasion).
(b) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(c)(i) or Section 8.1(c)(iii) or (ii) the Company or Parent pursuant to Section 8.1(b)(i) and, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(iii), then Parent shall, in the event case of termination by (A) Parent, simultaneously with such termination or (B) the Company Company, no later than three (3) Business Days after the date of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of the Company, the Reverse Termination Fee becomes payable (it being understood that in no event shall Parent be required to Parent following payment pay the Reverse Termination Fee on more than one occasion).
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.3(e) and Section 9.9, the Company’s receipt in full of the No Vote Termination Fee, the amount of the No Vote Reverse Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this pursuant to Section 8.3(b), together with any Enforcement Expenses or payments pursuant to Section 6.11 and Section 6.12 of any Debt Costs, in circumstances where the Reverse Termination Fee is owed pursuant to Section 8.3(b), shall constitute the sole and exclusive monetary remedy of the Company and its Subsidiaries against Parent, Acquisition Sub, the Guarantors, the Debt Financing Sources or any of their respective Affiliates and all of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount(s), none of the Parent Related Parties shall have no any further liability with respect or obligation to the Company, its Subsidiaries or any other Company Related Party relating to or arising out of this Agreement or the transactions contemplated herein by this Agreement (except that Parent shall also be obligated to comply with the terms of the Confidentiality Agreement). The parties acknowledge and agree that while the Company may pursue a grant of specific performance in accordance with Section 9.9(b) and payment of the Reverse Termination Fee in no event shall the Company be entitled to obtain both (x) a grant of specific performance pursuant to Section 9.9(b) that results in the Closing occurring and (y) payment of the Reverse Termination Fee. Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of the Parent Related Parties in the event Parent or Acquisition Sub fails to consummate the transactions contemplated by this Agreement or otherwise fails to comply with or breaches any covenant or other obligation or representation and warranty in this Agreement shall not exceed the Parent Liability Limit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.3(e) and Section 9.9, Parent’s receipt in full of the Termination Fee pursuant to Section 8.3(a), together with any Enforcement Expenses, in circumstances where the Termination Fee is owed pursuant to Section 8.3(a), shall constitute the sole and exclusive remedy of Parent and Acquisition Sub against the Company and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any other Personof the foregoing (collectively, other than the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount(s) (in respect circumstances where the Termination Fee is owed pursuant to Section 8.3(a)), none of Willful and Material Breach the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or Fraud or, to the extent transactions contemplated by this Agreement. The parties acknowledge and agree that if Parent receives any payments from the Company in respect of any breach of this Agreement and thereafter Parent receives the Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of such payments made by the Company prior to paying the Termination Fee in respect of any such breaches.
(e) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) each of the Termination Fee and the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee 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 transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall pay Parent the other party its costs and expenses in connection with such suit, together with interest on such amount at the annual rate of two percent (2%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law (collectively, “Enforcement Expenses”); provided, however, that in no event shall the Enforcement Expenses payable by the Company, on the one hand, or the Enforcement Expenses and Debt Costs payable by Parent and Acquisition Sub, on the other hand, exceed $7.5 million in the aggregate.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Corelogic, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event thatIf this Agreement is terminated by:
(i) (1) This Agreement shall have been terminated Parent pursuant to (xSection 7.1(d)(i) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] on the basis of a breach of a covenant or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties agreement contained in this Agreement or Covenants], (2) either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any other Person shall have publicly disclosed such case (A) prior to such termination (or announced prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Alternative Acquisition Proposal that has been made on or after the date of this Agreement but shall have been publicly disclosed and not publicly withdrawn prior to the earlier of (x) the Company Meeting such date and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3B) within twelve (12) months of after such termination, any transaction constituting any a Company Alternative Acquisition Proposal is consummated or an the Company enters into a definitive agreement providing for any with respect to a Company Alternative Acquisition Proposal is executed; (provided, thathowever, that for purposes of this clause (iSection 7.3(a)(i), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The Company shall have terminated Parent pursuant to Section 7.1(d)(ii) (or pursuant to any other provision of Section 7.1 if Parent was then entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];7.1(d)(ii)); or
(iii) Parent shall have terminated this Agreement the Company pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]7.1(c)(ii); then, in each such case, the Company shallshall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (Ax) in the case of clause (i) above, upon on the earlier of (x) the execution date of an consummation of, or entry into a definitive agreement providing for any with respect to, such Company Alternative Proposal and Acquisition Proposal, (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently withpromptly, and as a condition to but in no event later than three (3) Business Days after the effectiveness date of such termination, pay termination and (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (Cz) in the case of clause (iii) above, within two immediately prior to or concurrently with the termination of this Agreement.
(2b) Business Days In the event this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii), then the Company shall pay Parent the reasonable and documented out-of-pocket costs and expenses, including all fees and expenses incurred in connection with the Debt Financing and the fees and expenses of such terminationcounsel, pay accountants, investment bankers, experts and consultants, incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to exceed $20,000,000 (or cause the “Parent Expenses”); provided that any payment of the Parent Expenses shall not affect Parent’s right to receive any Company Termination Fee otherwise due under Section 7.3(a), but shall reduce, on a dollar for dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a). Any Parent Expenses required to be paid) Parent (or one or more of its designees) paid by the Company Termination Fee; and (Dunder this Section 7.3(a) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to shall be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case made by wire transfer of immediately available funds promptly, but in no event later than three (3) Business Days after the Company’s receipt of documentation supporting such Parent Expenses.
(c) Notwithstanding anything to one or more accounts designated by Parent; it being understood the contrary set forth in this Agreement, the parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion.
(d) Notwithstanding anything to the contrary set forth in this Agreement, in the event Parent’s right to receive payment from the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or pursuant to Section 7.3(a) and/or the No Vote right to receive payment of the Parent Expenses pursuant to Section 7.3(a), shall, in circumstances in which the Company Termination Fee or Parent Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than Parent’s right, after having received the Parent Expenses, to receive the Company Termination Fee less the Parent Expenses in accordance with this the circumstances expressly contemplated in Section 8.3(b7.3(a)) of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amounts, none of the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of by this Agreement or Fraud or, to the extent (except that the Company Termination Fee becomes payable shall also be obligated with respect to Parent following payment of the No Vote Termination Fee, any obligation amounts owing pursuant to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeSection 7.3(e)(ii)).
(ce) If Each of the parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and (ii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company or Parent, as applicable, fails to timely pay an any amount due pursuant to this Section 8.37.3 and, in order to obtain such payment, Parent or the Company, as applicable, commences a suit that results in a judgment against the other for the payment of any amount set forth in this Section 7.3, the Company or Parent, as applicable, shall pay Parent the other its costs and expenses in connection with such suit (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Welbilt, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated If Holdings terminates this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (xSection 6.1(d)(i) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) aboveSection 6.1(d)(ii), concurrently within each case, and as Parent shall pay to Holdings a condition to fee of $100,000,000 in cash (the effectiveness of such termination, pay (or cause to be paid) “Parent (or one or more of its designees) the Company Breach Termination Fee; (C) in the case of clause (iii) above”), within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds in accordance with the Seller Wiring Instructions, no later than two (2) Business Days after the date of such termination.
(b) If either Parent or Holdings terminates this Agreement under Section 6.1(b)(i) or Section 6.1(b)(ii) (but only if the applicable Legal Restraint relates to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion HSR Clearance) and, in at the event the Company Termination Fee becomes payable to Parent following payment time of such termination, all of the No Vote conditions in Article V have been satisfied or duly waived by all Parties entitled to the benefit thereof, except for (i) the condition in Section 5.1(a), (ii) the condition in Section 5.1(b) (but only if the applicable Legal Restraint relates to the HSR Clearance), (iii) the condition in Section 5.2(d) or (iv) any other condition that by its nature is to be satisfied at the Closing (provided that such condition would be capable of being satisfied if the Closing Date were the date of such termination), Parent shall pay to Holdings a fee of $80,000,000 in cash (the “Parent Antitrust Termination Fee” and, together with the Parent Breach Termination Fee, the amount “Parent Termination Fees”), by wire transfer of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee immediately available funds in accordance with this the Seller Wiring Instructions, no later than two (2) Business Days after the date of such termination.
(c) Notwithstanding anything herein to the contrary (including Section 8.3(b6.2), if this Agreement is terminated under circumstances in which Parent is required to pay a Parent Termination Fee, other than the Company Seller Parties’ right to payment of the Reimbursable Expenses, (i) seeking and obtaining Parent’s payment of such Parent Termination Fee shall have no further liability with respect be the sole and exclusive remedy of the Seller Parties and their respective Representatives for any Claims or Losses suffered or incurred by the Seller Parties or any of their respective Representatives that may be based on, arise out of or related to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personhereby, (ii) other than in respect the obligation to pay such Parent Termination Fee, Parent, Buyer and their respective Representatives shall have no further Liability that may be based on, arise out of Willful and Material Breach of or related to this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, (iii) none of the Seller Parties or any of their respective Representatives shall have, and the Seller Parties, on behalf of themselves and their respective Representatives, expressly waive and relinquish, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) that may be based on, arise out of or related to this Agreement or the transactions contemplated hereby, and that(iv) the maximum aggregate Liability of Parent and its Representatives to the Seller Parties and their respective Representatives that may be based on, without these agreementsarise out of or related to this Agreement or the transactions contemplated hereby shall not exceed such Parent Termination Fee and, the parties would not enter into this Agreement.subject to
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Performance Food Group Co)
Termination Fees. (a) [Reserved].
(b) In If, but only if, the event thatAgreement is terminated by:
(i) (1x) This Agreement shall have been terminated either Parent or the Company pursuant to (xSection 7.1(b)(i) or Section 8.1(b)(i7.1(b)(iii) [End Date]or by Parent pursuant to Section 7.1(d)(i), (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the Company (A) receives or has received a Competing Proposal from a Third Party after the date hereof, which Competing Proposal is publicly disclosed and not withdrawn either (I) at or prior to the time of the Stockholders’ Meeting or (II) prior to the termination of this Agreement in the circumstances set forth in clause (i)(1) above if there has been no Stockholders’ Meeting, and (3B) within twelve (12) months of the termination of this Agreement, enters into or consummates a transaction in connection with a Competing Proposal (regardless of whether such termination, any transaction constituting any Company Alternative Competing Proposal is consummated the same one referred to in clause (A) above), then the Company shall pay, or cause to be paid, to Parent (or such person who may be designated by Parent) an agreement providing for any Company Alternative Proposal is executedamount equal to $28,736,875 (the “Termination Fee”) not later than the second (2nd) Business Day following the date of the consummation of a transaction arising from such Competing Proposal; provided, thathowever, that for purposes of this clause (iSection 7.3(a)(i), the references to “20% or morefifteen percent (15%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “more than fifty percent (50% or more%)”;
(ii) The the Company shall have terminated pursuant to Section 7.1(c)(ii) or by Parent pursuant to Section 7.1(d)(ii), or by Parent or Company pursuant to any other provision of Section 7.1 at any time after Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(ii7.1(d)(ii), then the Company shall pay, or cause to be paid, to Parent (or such person who may be designated by Parent) [Company Superior Proposal];the Termination Fee, if the termination was by the Parent, not later than the second (2nd) Business Day following such termination or, if the termination was by the Company, concurrently with such termination; or
(iii) Parent shall have terminated this Agreement the Company pursuant to Section 8.1(d)(i7.1(c)(i) [and the material breach by Parent or Merger Sub is the principal factor in the failure of the Offer or the Merger, as the case may be, to be consummated, Section 7.1(c)(iii) or Section 7.1(c)(iv), then Parent shall pay, or cause to be paid, to the Company Change an amount equal to $57,473,750 reduced in accordance with the final sentence of Recommendation]; orSection 7.2 (the “Reverse Termination Fee”) not later than the second (2nd) Business Day following such termination.
(ivb) This If, but only if, this Agreement is terminated by Parent or the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then7.1(b)(iii), the Company shall, in addition to any obligation it may have to pay the Termination Fee pursuant to and in accordance with Section 7.3(a)(i), reimburse Parent for all reasonable and documented out-of-pocket fees and expenses (Aincluding all reasonable fees and expense of counsel, accountants, investment bankers, Financing sources (including commitment fees), experts, consultants and the costs of all filing fees and printing costs) incurred by Parent or its affiliates in connection with this Agreement or the case of clause transactions contemplated hereby (ithe “Parent Expenses”) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition by payments to the effectiveness Parent thereof by wire transfer of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, same day funds within two (2) Business Days following Parents request therefor; provided, however, that the maximum amount of fees and expenses for which the Company shall be required to reimburse Parent under this Section 7.3(b) is $8,210,535; provided, further, that any such termination, pay amount paid pursuant to this Section 7.3(b) shall reduce any amount payable pursuant to Section 7.3(a)(i) or Section 7.3(a)(ii) on a dollar for dollar basis.
(or cause c) Notwithstanding anything to be paid) Parent the contrary set forth in this Agreement:
(or one or more of its designeesi) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood parties agree that in no event shall the Company or Parent (together with Merger Sub) be required to pay the Company Termination Fee or the No Vote Reverse Termination Fee Fee, as the case may be, on more than one occasion occasion; and
(ii) the parties agree that the Termination Fee and the Reverse Termination Fee shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law.
(d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 7.2 and Section 8.10, the Company’s right to receive payment of the Reverse Termination Fee pursuant to Section 7.3(a)(iii), in the event circumstance where the Company Reverse Termination Fee becomes payable is owed pursuant to Parent following payment of Section 7.3(a)(iii), shall constitute the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) sole and exclusive remedy of the Company and its affiliates (including the holders of Company Common Stock and Company Equity Awards) against Parent, Merger Sub, Guarantor, the Financing sources under the Debt Financing and their respective, direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees (collectively, the “Parent Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation to the Company or any of its subsidiaries, affiliates or stockholders relating to or arising out of this Agreement, the Debt Financing, the transactions contemplated by this Agreement 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 that Parent shall also be obligated to the Company for any of its expense reimbursement or interest payment obligations contained in Section 7.3(e)). Except as expressly provided in the immediately foregoing sentence, none of the Parent Related Parties will have any liability to the Company or any of its subsidiaries, affiliates or stockholders relating to or arising out of this Agreement, the Debt Financing 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 set forth in this Agreement, but subject to Section 7.2 and Section 8.10, Parent’s right to receive payment from the Company of the Termination Fee pursuant to Section 7.3(a)(i) or Section 7.3(a)(ii) shall constitute the No Vote Termination Fee in accordance with this Section 8.3(b)sole and exclusive remedy of Parent, Merger Sub and their respective affiliates and Representatives against the Company, its subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein by this Agreement (except that the Company shall also be obligated to Parent or its Subsidiaries or Affiliates or any other Personand Merger Sub under Section 7.3(e)); provided, other than in respect of Willful and Material Breach of this Agreement or Fraud orthat, to the extent the Company Termination Fee becomes payable to Parent following notwithstanding payment of the No Vote Termination FeeFee by the Company pursuant to Section 7.3(a)(i) or Section 7.3(a)(ii), any obligation Parent shall have the right to pay seek to recover monetary damages (or cause to be paid) an amount equal subject to the limitations set forth in Section 7.2) from the Company Termination Fee less solely in the No Vote Termination Feeevent of a Willful Breach by the Company of the covenants and agreements set forth in Section 5.6.
(ce) If Each of the parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, (ii) each of the Termination Fee and the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent or their respective affiliates, as the case may be, in the circumstances in which such fee 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 transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay an any amount due pursuant to this Section 8.37.3 and, in order to obtain such payment, either Parent or the Company Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 7.3, such paying party shall pay Parent the other party its reasonable attorneys’ fees, costs and out-of-pocket expenses in connection with such suit, together with interest on such amount at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (MModal Inc.)
Termination Fees. (a) [Reserved]If this Agreement is terminated by the Company pursuant to Section 6.1(f), by Parent pursuant to Section 6.1(d), or by either Parent or the Company pursuant to Section 6.1(b) (and at the End Date all of the conditions to the Company’s obligations to close other than receipt of the Required Company Stockholder Vote have been satisfied, or are capable of satisfaction had the Closing occurred on the End Date) or Section 6.1(g), in each case, at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 6.1(d), then, within two Business Days after (or in the case of termination pursuant to Section 6.1(f), substantially current with) the termination of this Agreement, the Company shall cause to be paid to Parent the Termination Fee.
(b) In If this Agreement is terminated by the event that:
(iCompany pursuant to Section 6.1(e), or by either Parent or the Company pursuant to Section 6.1(b) (1or Section 6.1(h) This Agreement shall at a time when the Company would have been terminated pursuant entitled to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii) [6.1(e), then, within two Business Days after the termination of this Agreement, Parent shall cause to be paid to the Company Superior Proposal];the Termination Fee.
(iiic) Parent shall have terminated If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d)(i6.1(g) [Company Change of Recommendation]; or
or by Parent pursuant to Section 6.1(i) (iv) This Agreement is terminated or by the Company or Parent pursuant to Section 8.1(b)(iii6.1(b) [Failure (and at the End Date all of the conditions to Obtain the Company’s obligations to close other than receipt of the Required Company Stockholder Approval]; thenVote have been satisfied, or are capable of satisfaction had the Closing occurred on the End Date) at a time when this Agreement could have been terminated pursuant to Section 6.1(g) or Section 6.1(i)) and: (i) at or prior to the Company shall, Stockholder Meeting (A) in the case of clause (i) abovea termination pursuant to Section 6.1(g)), upon or at or prior to the earlier time of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) applicable breach by the Company Termination Fee; (B) in the case of clause (ii) abovea termination pursuant to Section 6.1(i)), concurrently withany Person shall have publicly announced an intention to make a Company Acquisition Proposal, or a Company Acquisition Proposal shall have been publicly disclosed, publicly announced, commenced, submitted or made and as a condition shall not have been publicly withdrawn without qualification at least five Business Days prior to the effectiveness date of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) Stockholder Meeting, in the case of clause (iii) abovea termination pursuant to Section 6.1(g), within two (2) Business Days or the time of such terminationbreach, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of a termination pursuant to Section 6.1(i); and (ii) on or prior to the date that is 12 months following the termination of this Agreement, either (A) a Company Acquisition Transaction is consummated or (B) a definitive agreement relating to a Company Acquisition Transaction is entered into by the Company and the transaction contemplated thereby is subsequently consummated (it being understood that, for purposes of this clause “(iv) aboveB),” each reference to 20% in the definition of “Company Acquisition Transaction” in Exhibit A shall be deemed to be a reference to 50%, then, within two (2) Business Days after the consummation of such terminationCompany Acquisition Transaction, pay (or the Company shall cause to be paidpaid to Parent the Termination Fee.
(d) If this Agreement is terminated by Parent or the Company pursuant to Section 6.1(h) or by the Company pursuant to Section 6.1(j) (or by the Company or Parent pursuant to Section 6.1(b) at a time when this Agreement could have been terminated pursuant to Section 6.1(h) or Section 6.1(j)) and: (i) at or prior to the Parent Stockholder Meeting (in the case of a termination pursuant to Section 6.1(h)), or at or prior to the time of the applicable breach by Parent (in the case of a termination pursuant to or one Section 6.1(j)), any Person shall have publicly announced an intention to make a Parent Acquisition Proposal, or more a Parent Acquisition Proposal shall have been publicly disclosed, publicly announced, commenced, submitted or made and shall not have been publicly withdrawn without qualification at least five Business Days prior to date of its designeesthe Parent Stockholder Meeting, in the case of a termination pursuant to Section 6.1(h), or the time of such breach, in the case of a termination pursuant to Section 6.1(j); and (ii) on or prior to the No Vote date that is 12 months following the termination of this Agreement, either (A) a Parent Acquisition Transaction is consummated or (B) a definitive agreement relating to a Parent Acquisition Transaction is entered into by Parent and the transaction contemplated thereby is subsequently consummated (it being understood that, for purposes of this clause “(B),” each reference to 20% in the definition of “Parent Acquisition Transaction” in Exhibit A shall be deemed to be a reference to 50%), then, within two Business Days after the consummation of such Parent Acquisition Transaction, Parent shall cause to be paid to the Company the Termination Fee; in each case .
(e) Any Termination Fee due and payable by the Company under this Section 6.3 shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent. For the avoidance of doubt, the Termination Fee shall be payable by the Company only once and not in duplication even though the Termination Fee may be payable by the Company under one or more accounts designated provisions hereof. If the Company fails to pay the Termination Fee when due and payable by the Company, then the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent; it being understood ) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal) in effect on the date such amount was originally required to be paid, and the Company shall pay the costs and expenses (including reasonable and documented legal fees and out-of-pocket expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken by Parent to collect payment. In any circumstance where performance by the Company of its obligations under this Agreement would relieve the Company of its obligation to pay to Parent the Termination Fee, Parent and Acquisition Subs may, in their sole discretion (i) seek specific performance pursuant to Section 7.11, (ii) withdraw any claim for specific performance and require the Company to pay the Termination Fee if Parent is entitled to payment of the Termination Fee under this Section 6.3 or (iii) if Parent and Acquisition Subs are unable for any reason to obtain specific performance, require the Company to pay the Termination Fee if Parent is entitled to payment of the Termination Fee under this Section 6.3. The parties agree that if the Termination Fee becomes payable by, and is paid by, the Company, then such Termination Fee shall be Parent’s sole and exclusive remedy for damages against the Company and its Affiliates and its and their Representatives in connection with this Agreement, and in no event will Parent or any other Person seek to recover any other money damages or seek any other remedy based on a claim in law or equity for any reason in connection with this Agreement; provided, that nothing contained herein shall relieve any party from satisfying any claim in law or equity or from any liability, in each case arising from fraud or any Willful Breach of this Agreement that is material.
(f) Any Termination Fee due and payable by Parent under this Section 6.3 shall be paid by wire transfer of immediately available funds to an account designated in writing by the Company. For the avoidance of doubt, the Termination Fee shall be payable by Parent only once and not in duplication even though a termination fee may be payable by Parent under one or more provisions hereof. If Parent fails to pay the Termination Fee when due and payable by Parent, then Parent shall pay to the Company interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the Company) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal) in effect on the date such amount was originally required to be paid, and Parent shall pay the costs and expenses (including reasonable and documented legal fees and out-of-pocket expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken by the Company to collect payment. In any circumstance where performance by Parent and Acquisition Subs of their respective obligations under this Agreement would relieve Parent of its obligation to pay to the Company the Termination Fee, the Company may, in its sole discretion (i) seek specific performance pursuant to Section 7.11, (ii) withdraw any claim for specific performance and require Parent to pay the Company the Termination Fee or if the No Vote Company is entitled to payment of the Termination Fee on more than one occasion andunder this Section 6.3 or (iii) if the Company is unable for any reason to obtain specific performance, require Parent to pay the Termination Fee to the Company if the Company is entitled to payment of the Termination Fee under this Section 6.3; provided that, in the event the Company terminates this Agreement pursuant to Section 6.1(e)(iii) and the Company requires Parent to pay the Termination Fee, receipt of the Termination Fee shall be the Company’s sole and exclusive remedy for damages against Parent, each Acquisition Sub and their respective Affiliates and its and their Representatives for the matters set forth in Section 6.1(e)(iii). The parties agree that if the Termination Fee becomes payable to Parent following payment of the No Vote Termination Feeby, the amount of the No Vote and is paid by, Parent, then such Termination Fee actually paid shall be credited the Company’s sole and exclusive remedy for damages against Parent, each Acquisition Sub and their respective Affiliates and its and their Representatives in connection with this Agreement, and in no event will the Company Termination Fee. Following receipt by Parent (or one any other Person seek to recover any other money damages or more of its designees) of the Company Termination Fee seek any other remedy based on a claim in law or the No Vote Termination Fee equity for any reason in accordance connection with this Section 8.3(b)Agreement; provided, the Company shall have no further liability that nothing contained herein (other than as provided herein with respect to this Agreement the matters set forth in Section 6.1(e)(iii)) shall relieve any party from satisfying any claim in law or the transactions contemplated herein to Parent equity or its Subsidiaries or Affiliates from any liability, in each case arising from fraud or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feethat is material.
(cg) If Each of the Company fails parties hereto acknowledges that the Termination Fee is not intended to timely pay an be a penalty, but rather is liquidated damages in a reasonable amount that will compensate the recipient in the circumstances in which the Termination Fee is due pursuant to and payable and which do not involve fraud or Willful Breach of this Section 8.3Agreement by the other party, for the Company shall pay Parent interest efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on such amount at the prime rate as published in The Wall Street Journal in effect this Agreement and on the date such payment was required expectation of the consummation of the Mergers, which amount would otherwise be impossible to be made plus 3% per annum through calculate with precision. Each of the date such payment is actually received.
(d) The parties acknowledge acknowledges that the agreements contained in this Section 8.3 6.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, agreements the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Termination Fees. (a) [Reserved].
(b) In If, but only if, the event that:
Agreement is terminated by: (i) (1x) This Agreement shall have been terminated either Parent or the Company pursuant to (x) Section 8.1(b)(i) [End Date]or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(d)(i), (y) Section 8.1(b)(iii) [Failure prior to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants]such termination, (2) the Company a Competing Proposal shall have been made or any other Person shall have publicly disclosed announced or announced publicly made known an intention (whether or not conditional) to make a Company Alternative Proposal made on or Competing Proposal, in each case, after the date of this Agreement but and which has not been publicly withdrawn at least ten (10) Business Days prior to the earlier of (x) the Company Meeting such termination and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3z) within twelve (12) months of such terminationtermination of this Agreement, the Company enters into a definitive agreement regarding any transaction constituting any Company Alternative Competing Proposal with a Third Party, a tender offer that constitutes a Competing Proposal is consummated or an agreement providing for the Company otherwise consummates a transaction regarding any Company Alternative Competing Proposal (regardless of whether such Competing Proposal is executed; the same one referred to in clause (y) above), then the Company shall pay, or cause to be paid, at the direction of Parent an amount equal to $103,400,000 (the “Termination Fee”), less the amount of any Parent Expenses previously paid to Parent, if any, not later than two (2) Business Days following the date of the earlier of the execution of a definitive agreement regarding a Competing Proposal or the consummation of such tender offer or other transaction regarding a Competing Proposal (provided, thathowever, that for purposes of this clause (iSection 8.3(a)(i), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [), then the Company Superior Proposal]shall pay, or cause to be paid, at the direction of Parent the Termination Fee concurrently with such termination;
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i8.1(d)(ii), then the Company shall pay, or cause to be paid, at the direction of Parent the Termination Fee not later than two (2) [Company Change of Recommendation]Business Days following such termination; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii8.1(c)(i) [Failure to Obtain Company Stockholder Approval]; thenor Section 8.1(c)(iii), the Company shallthen Parent shall pay, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) , to the Company an amount equal to $263,100,000 (the “Reverse Termination Fee; (B”) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within not later two (2) Business Days of following such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
If (i) (1) This this Agreement shall have been terminated by Purchaser pursuant to (xSection 8.1(e) due to a breach by the Company of Section 8.1(b)(i) [End Date]6.5, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2ii) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier date of (x) the Company Special Meeting, and such Company Alternative Proposal has not been withdrawn, and such withdrawal has not been publicly disclosed and withdrawn or announced, at least five (5) days prior to the date of the Company Special Meeting and (y) or prior to the termination of this Agreement in the circumstances set forth in clause (i)(1if there has been no Company Special Meeting) above and (3iii) within twelve nine (129) months of such termination, any transaction constituting any a definitive agreement with respect to a Company Alternative Proposal has been entered into, and such Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executedultimately consummated; provided, provided that, for purposes of this clause (iiii), the references to “20% or more%” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or moremore than 80%”;
(iib) The if the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];8.1(j); or
(iiic) Parent if Purchaser shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]8.1(i); then, the Company shall, (Ax) in the case of the foregoing clause (i) abovea), upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any a Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) Purchaser the Company Termination Fee; (By) in the case of the foregoing clause (ii) aboveb), prior to or substantially concurrently with, and as a condition to the effectiveness of with such termination, pay (or cause to be paid) Parent (or one or more of its designees) Purchaser the Company Termination Fee; and (Cz) in the case of the foregoing clause (iii) abovec), within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) Purchaser the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event occasion. The Company shall pay to Purchaser the Company Termination Fee becomes payable pursuant to Parent following payment this Section 8.3 by wire transfer in immediately available funds to one or more accounts designated by Purchaser. Following receipt by Purchaser of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent Purchaser, Holdco or its any of their Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach willful breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) fraud. If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company Termination Fee when due, then it shall pay Parent Purchaser the interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus three percent (3% %) per annum through the date such payment is actually received.
(d) The parties Parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties Parties would not enter into this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Agrico Acquisition Corp.)
Termination Fees. (a) [Reserved].
(b) In Notwithstanding any provision in this Agreement to the event that:contrary,
(i) if (1A) This this Agreement shall have been is terminated by Parent pursuant to (xSection 7.1(g) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (yB) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) concurrently with or within twelve (12) months of after such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for in principle, acquisition agreement or other similar binding agreement with respect to a Qualifying Transaction shall have been entered into with any Company Alternative Proposal is executed; providedperson other than Parent or any of its affiliates or associates, that, for purposes of this clause (i), then the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment a fee of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee $50 million in accordance with this Section 8.3(b), cash and the Company shall have no further liability with respect to this Agreement or the transactions contemplated hereby to Parent, Merger Sub or their stockholders or their Representatives (provided that nothing herein shall release any party from liability for intentional breach or fraud), such payment to Parent or its Subsidiaries or Affiliates or any other Personbe made upon consummation of such Qualifying Transaction, other it being understood that in no event shall the Company be required to pay the fee referred to in this Section 7.2 on more than in respect of Willful and Material Breach of one occasion; and
(ii) if this Agreement or Fraud or, to the extent is terminated by the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.37.1(c) or by Parent pursuant to Section 7.1(d), then the Company shall pay to Parent interest on such amount at a fee of $50 million in cash and the prime rate as published in The Wall Street Journal in effect on Company shall have no further liability with respect to this Agreement or the date transactions contemplated hereby to Parent, Merger Sub or their stockholders or their Representatives (provided that nothing herein shall release any party from liability for intentional breach or fraud), such payment was required to be made plus 3% per annum through within two (2) business days of such termination by the date such payment is actually received.
(d) The parties acknowledge Company, it being understood that in no event shall the agreements contained Company be required to pay the fee referred to in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.7.2 on more than one occasion;
Appears in 1 contract
Samples: Merger Agreement (Samsonite Corp/Fl)
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii), then the Company shall pay by wire transfer of same-day funds to the Purchaser a termination fee of $500,000 (the “Termination Fee”). The Purchaser’s acceptance of the Termination Fee shall constitute conclusive evidence that this Agreement has been validly terminated.
(b) In the event that:
(i) (1) This Agreement that the Purchaser shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii) [8.1(d)(ii), and a definitive agreement is entered into by the Company Superior Proposal];with respect to the Takeover Proposal that gave rise to the Company Adverse Recommendation Change within six months after such termination of this Agreement, then the Company shall, on the date such Takeover Proposal is consummated, pay by wire transfer of same-day funds to the Purchaser an amount equal to the Termination Fee; provided, however, that for the purpose of this Section 8.3(b), all references in the definition of Takeover Proposal to “20%” shall instead be deemed to refer to “a majority.”
(iiic) Parent shall have terminated In the event that (i)(A) the Purchaser validly terminates this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated due to a willful breach by the Company of any covenant or Parent agreement contained in this Agreement or pursuant to Section 8.1(b)(iii8.1(b)(i) [Failure or (B) either the Purchaser or the Company terminates this Agreement pursuant to Obtain Section 8.1(b)(ii), (ii) prior to the time of such termination a bona fide Takeover Proposal has been publicly made or otherwise made known to the Company’s stockholders and not withdrawn or rejected by the Company’s Board of Directors prior to such termination, and (iii) a definitive agreement is entered into by the Company Stockholder Approval]; thenwith respect to such Takeover Proposal within six months after such termination of this Agreement, the Company shall, (A) in on the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative date such Takeover Proposal and (y) the consummation of any Company Alternative Proposalis consummated, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available same-day funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent Purchaser; provided, however, that for the Company Termination Fee becomes payable to Parent following payment purpose of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, all references in the Company definition of Takeover Proposal to “20%” shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required instead be deemed to be made plus 3% per annum through the date such payment is actually receivedrefer to “a majority.”
(d) The parties acknowledge Company acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreementsTransactions. In the event that the Company shall fail to pay the Termination Fee when due, the parties would not enter into Company shall reimburse the Purchaser for all reasonable costs and expenses actually incurred or accrued by the Purchaser (including reasonable fees and expenses of counsel) in connection with the Purchaser’s enforcement of this AgreementSection 8.3.
Appears in 1 contract
Termination Fees. (a) [Reserved]If this Agreement is terminated:
(i) pursuant to Section 10.1(f) or Section 10.1(g) or by Parent or the Company pursuant to Section 10.1(c) under circumstances in which Parent would have been entitled to terminate the Agreement pursuant to Section 10.1(f); or
(ii) pursuant to (A) Section 10.1(c), (B) Section 10.1(d) (with respect to a breach, inaccuracy or failure to perform that is the principal cause of the Offer Closing or the Merger Closing not occurring) or (C) Section 10.1(j), provided that at the time of the Company Stockholder Vote, it is not publicly known that the Financing Commitments have been terminated, withdrawn or rescinded without being replaced by Alternative Financing commitments sufficient to consummate the transactions contemplated by this Agreement, and, in the case of each of (A), (B) or (C), (x) after the date hereof and prior to the Termination Date, any third party shall have publicly made an Acquisition Proposal or the making of an Acquisition Proposal becomes publicly known and (y) within nine months after the Termination Date, the Company enters into a definitive agreement with such third-party with respect to an Acquisition Proposal (solely for purposes of this Section 10.3(a)(ii), all references in the definition of Acquisition Proposal to “20%” shall be increased to “51%”); then, in the case of each of (i) and (ii) the Company shall pay Parent, by wire transfer of immediately available funds, the sum of $32,000,000 (the “Company Termination Fee”). The payment of the Company Termination Fee shall be made (i) in the case of payment pursuant to Section 10.3(a)(i), (A) if this Agreement has been terminated pursuant to Section 10.1(g) by the Company, simultaneously with such termination and (B) if this Agreement is otherwise terminated, within two Business Days after termination and (ii) in the case of payment pursuant to Section 10.3(a)(ii), two Business Days after the date on which the Company enters into a definitive agreement with respect to an Acquisition Proposal.
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii10.1(e) [Failure (with respect to Obtain a breach, inaccuracy or failure to perform that is the principal cause of the Offer Closing or the Merger Closing not occuring) Section 10.1(h) or Section 10.1(i) (or pursuant to Section 10.1(c) under circumstances in which the Company Stockholder Approval]; thenwould have been entitled to terminate this Agreement pursuant to Section 10.1(e) (with respect to a breach, inaccuracy or failure to perform that is the principal cause of the Offer Closing or the Merger Closing not occuring), Section 10.1(h) or Section 10.1(i)), then Parent shall pay to the Company by wire transfer of immediately available funds, the Company shallsum of $85,000,000 (the “Parent Termination Fee”) as promptly as reasonably practicable (and, in any event, within two Business Days) following the date of termination of this Agreement.
(c) In the event this Agreement is terminated (A) in a manner that requires or could require the case payment of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the a Company Termination Fee; Fee pursuant to Sections 10.3(a)(i) or 10.3(a)(ii) or (B) in the case of clause (ii) abovepursuant to Section 10.1(d), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) then the Company Termination Fee; shall promptly (C) and in the case of clause (iii) above, any event within two (2) Business Days Days) following receipt of such terminationan invoice therefor, pay up to $8,000,000 of Parent’s reasonable and documented out-of-pocket fees and expenses (including legal fees and expenses) incurred by Parent and its Affiliates in connection with the transactions contemplated by this Agreement (including the Financing) on or cause prior to be paid) the termination of this Agreement (the “Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) aboveExpenses”), within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available same day funds to one or more accounts designated by Parent; it being understood provided, however, that in no event shall the existence of circumstances which require or could require the Company be required Termination Fee to become subsequently payable by the Company pursuant to Section 10.3(a) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 10.3(c); and provided, further, that the payment by the Company of Parent Expenses pursuant to this Section 10.3(c) shall not relieve the Company of any obligation to pay the Company Termination Fee or pursuant to Section 10.3(a).
(d) The Company and Parent agree that the No Vote Termination Fee on more than one occasion andobligations contained in Section 10.3 are an integral part of the transactions contemplated by this Agreement, in that without the event Parties’ agreement to discharge such obligations, Parent and the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Feewould not have entered into this Agreement, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) and that each of the Company Termination Fee and the Parent Termination Fee constitutes liquidated damages incurred by the applicable Party and is not a penalty. Accordingly, if the Company or Parent, as the case may be, fails promptly to pay the fee or, in the case of the Company, Parent Expenses due pursuant to Section 10.3, and, in order to obtain such payment, Parent or the No Vote Termination Fee Company commences a proceeding that results in accordance with this Section 8.3(b)an award against the other Party for such payment, the Company or Parent, as the case may be, shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, addition pay to the extent other Party its costs and expenses (including attorneys’ fees and expenses) in connection with such proceeding, together with interest on the Company Termination Fee becomes payable to Parent following payment amount of the No Vote Termination Fee, any obligation to pay (or cause applicable fee from the date such payment was required to be paid) an amount equal to made until the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount date of 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 plus 3% per annum through the date such payment is actually receivedmade.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement an Alternative Proposal, whether or not conditional, shall have been terminated pursuant made directly to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company Company’s stockholders generally or any other Person person shall have publicly disclosed or announced a Company an intention to make an Alternative Proposal made on or after Proposal, (B) following the date occurrence of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement an event described in the circumstances set forth in preceding clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (iA), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by (x) Parent pursuant to Section 7.01(b)(i) or Section 7.01(d)(i) or (y) by either the Company or Parent pursuant to Section 8.1(b)(iii7.01(b)(iii), and (C) [Failure the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal, or such a transaction is consummated (whether or not such Alternative Proposal was the same Alternative Proposal referred to Obtain in the foregoing clause (A)), in any such case within 12 months of the date this Agreement is terminated; or
(ii) this Agreement is terminated by the Company Stockholder Approval]pursuant to Section 7.01(c)(ii); thenor
(iii) this Agreement is terminated by Parent pursuant to Section 7.01(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.02(a), the Company shall, shall pay to Parent a termination fee of $40,000,000 in cash (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company “Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable occasion.
(b) With respect to Parent following any payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall required to be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this made pursuant to Section 8.3(b7.02(a)(i), the Company shall have no further liability pay $5,000,000 of the Termination Fee concurrently with the termination of this Agreement, and shall pay the remainder of the Termination Fee upon the occurrence of the events in Section 7.02(a)(i)(C). With respect to this Agreement any payment to be made pursuant to Section 7.02(a)(ii) or Section 7.02(a)(iii), the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach Company shall pay the Termination Fee concurrently with the termination of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeAgreement.
(c) If the Company fails to timely pay an amount due pursuant to this In any event under Section 8.37.02(a), the Company shall pay Parent interest pay, in addition to the Termination Fee or any part thereof, to an account or accounts designated by Parent, as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor (which may be delivered at any time on such amount at the prime rate as published in The Wall Street Journal in effect on or after the date such payment was required two Business Days before the termination of this Agreement) all of Parent’s and Sub’s actual and reasonably documented out-of-pocket fees and expenses (including legal fees and expenses) actually incurred by Parent, Sub and their Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (“Parent Expenses”), which amount shall not be made plus 3% per annum through the date such payment is actually receivedgreater than $5,000,000.
(d) The In the event that (A) either party shall terminate this Agreement pursuant to Section 7.01(b)(i) or 7.01(b)(ii) (with respect to Restraints related to any Regulatory Law), (B) as of the date of such termination any approval under any Regulatory Law required to be obtained prior to the Closing shall not have been obtained or any waiting period under any Regulatory Law required to be expired or terminated prior to the Closing shall not have expired or been terminated, (C) immediately prior to such termination, the conditions set forth in Sections 6.01(a), 6.01(c) (other than a failure of such condition with respect to Restraints related to any Regulatory Law), 6.02(a) and 6.02(b) shall have been satisfied, then Parent shall pay to the Company, no later than two Business Days following such termination, a termination fee of $50,000,000 in cash (the “Regulatory Termination Fee”), it being understood that in no event shall the Company be required to pay the Regulatory Termination Fee on more than one occasion.
(e) In the event that the Company shall fail to pay the Termination Fee or Parent Expenses or Parent shall fail to pay the Regulatory Termination Fee, in each case as required pursuant to this Section 7.02 when due, such amounts shall accrue interest for the period commencing on the date such amounts became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase from time to time during such period, as such bank’s prime lending rate plus 1.50%. In addition, if the Company or Parent shall fail to pay such amounts when due, then such party shall also pay to the other party all of the other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee.
(f) Each of the parties acknowledge hereto acknowledges that the agreements contained in this Section 8.3 7.02 are an integral part of the transactions contemplated by this Agreement and thatthat the Termination Fee is not a penalty, without these agreementsbut rather is liquidated damages in a reasonable amount that will compensate Parent and Sub 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.
(g) Any payments made pursuant to this Section 7.02 shall be net of any amounts as may be required to be deducted or withheld therefrom under the parties would not enter into this AgreementCode or under any provision of applicable Tax Law.
Appears in 1 contract
Samples: Merger Agreement (Paxar Corp)
Termination Fees. Except as set forth in this Section 9.4, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Transactions are consummated. Notwithstanding the foregoing, if (ai) [Reserved].
the Seller shall enter into a Superior Offer, then the Seller shall pay Parent a fee of $250,000 at the time the Seller or Parent terminates this Agreement, (ii) the Seller terminates the Transactions pursuant to this Section 9, other than pursuant to Sections 9.1(a), (b) In or(c) hereof, the event that:
(i) (1) This Seller shall pay all fees and expenses incurred by Parent and the Purchaser in connection with this Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date]and the Transactions, including, but not limited to, attorneys fees and other professional fees, (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2iii) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) Seller enters into an agreement for an Acquisition Transaction within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes following the termination of this clause (i)Agreement, the references to “20% or more” Seller shall pay Parent the difference between $250,000 and such expense reimbursement set forth in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) if Parent (or one or more of its designees) terminates the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions transaction contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach hereby after execution of this Agreement (by both Parent and the Seller) pursuant to Section 9.1(b) or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If hereof, Parent shall pay the Company fails Seller a fee of $250,000 at the time Parent terminates the Purchase Agreement and (v) either Parent or the Seller terminates the transaction contemplated hereby after execution of this Agreement due to timely pay an amount due pursuant to this Section 8.3a breach of the other party, the Company non-breaching party shall pay Parent interest on be entitled, at its option, to extend the termination date set forth in Section 9.1(b) hereof or recover all fees and expenses incurred by such amount at the prime rate as published party in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by connection with this Agreement and thatthe Transactions, without these agreementsincluding, the parties would but not enter into this Agreementlimited to, attorneys fees and other professional fees.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1) This (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) and, at the time of such termination, any of the conditions set forth in Section 7.01(b) or, in connection with the Required Statutory Approvals, Section 7.01(c) shall have not been satisfied and such conditions, if waivable by Parent, shall not have been waived by Parent, (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Statutory Approvals) or (C) the Company terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a), Section 7.03(a), Section 7.03(b) and Section 7.03(c) shall have been terminated pursuant satisfied or waived (except for (I) those conditions that by their nature are to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination or (zII) Section 8.1(d)(ii) [Company Breach those conditions that have not been satisfied as a result of Reps and Warranties a breach of this Agreement by Parent), or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminates this Agreement pursuant to Section 8.1(c)(ii8.01(c)(iii), then Parent shall pay to the Company a fee of Sixty-Five Million United States Dollars ($65,000,000) [in cash (the “Parent Termination Fee”). Parent shall pay the Parent Termination Fee to the Company Superior Proposal];(to an account designated in writing by the Company) no later than three (3) Business Days after the date of the applicable termination.
(iiiii) Parent shall have terminated If the Company terminates this Agreement pursuant to Section 8.1(d)(i8.01(c)(i) [or Parent terminates this Agreement pursuant to Section 8.01(d)(i), the Company Change shall pay to Parent a fee of Recommendation]; or
Fifty-Three Million United States Dollars (iv$53,000,000) This in cash (the “Company Termination Fee”). The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to or concurrently with such termination of this Agreement is terminated by the Company pursuant to Section 8.01(c)(i) or no later than three (3) Business Days after the date of such termination of this Agreement by Parent pursuant to Section 8.1(b)(iii8.01(d)(i).
(iii) [Failure If (1) either (A) Parent or the Company terminates this Agreement pursuant to Obtain Section 8.01(b)(iii), prior to the Company Stockholder Approval]; thenShareholders Meeting a Company Takeover Proposal shall have been publicly disclosed, and as of the Company Shareholders Meeting such Company Takeover Proposal shall not have been withdrawn, or (B) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i), prior to such termination a Company Takeover Proposal shall have been publicly disclosed, and as of such termination the Company Shareholders Meeting shall not have been held and such Company Takeover Proposal shall not have been withdrawn, or (C) Parent terminates this Agreement pursuant to Section 8.01(d)(ii) (solely with respect to breach of or failure to perform a covenant), prior to such termination a Company Takeover Proposal shall have been publicly disclosed, and as of such termination such Company Takeover Proposal shall not have been withdrawn, and (2) within nine (9) months after the termination of this Agreement, the Company shallshall have entered into a definitive agreement with respect to, or consummated, a Company Takeover Proposal (A) whether or not the same Company Takeover Proposal referred to in the case of clause (i) above1)), upon then the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, shall pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition Fee to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designeesto an account designated in writing by Parent) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days after the earlier of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the date the Company Termination Fee; and (D) in the case enters into such definitive agreement or consummates such Company Takeover Proposal. For purposes of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b8.02(b)(iii), the term “Company Takeover Proposal” shall have no further liability with respect the meaning assigned to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personsuch term in Section 5.01, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge except that the agreements contained applicable percentage in this Section 8.3 are an integral part the definition of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement“Company Takeover Proposal” shall be “more than 50%” rather than “20% or more.”
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
If (i) this Agreement is terminated pursuant to Section 7.1(b), Section 7.1(d) or Section 7.1(f) (1for a Willful Breach only), (ii) This Agreement a Company Takeover Proposal shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] publicly announced or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but and prior to such termination shall not have been publicly withdrawn and (iii) at any time on or prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months 12)-month anniversary of such termination, any transaction constituting any the Company Alternative enters into a definitive agreement with respect to, or consummates, the Company Takeover Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this referred to in clause (iii) above (a “Company Takeover Transaction”), the Company shall pay Parent the Termination Fee, by wire transfer (to an account designated by Parent) in immediately available funds, upon the earlier of entering into such definitive agreement with respect to the Company Takeover Transaction or the consummation of the Company Takeover Transaction; provided that for the purposes of clause (iii) only, all references to “20% or more” in the definition of Company Takeover Proposal to “Company Alternative Proposaltwenty-five percent (25%)” shall be deemed to instead be references to “fifty percent (50% or more%).”;
(iib) The Company shall have terminated If Parent terminates this Agreement pursuant to Section 8.1(c)(ii7.1(g), the Company shall pay Parent the Termination Fee, by wire transfer (to an account designated by Parent) [Company Superior Proposal];in immediately available funds, within three (3) Business Days after such termination.
(iiic) Parent “Termination Fee” shall be $38,765,000, in cash. Anything to the contrary in this Agreement notwithstanding, if the Termination Fee shall become due and payable in accordance with this Section 7.3, from and after such termination and payment of the Termination Fee in full pursuant to and in accordance with this Section 7.3, the Company and its Affiliates and Representatives (in the case of a payment of the Termination Fee by the Company) shall have terminated no further Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 7.3, except in the case of fraud. Each of the Parties hereto acknowledges that the Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Termination Fee is due and payable and do not involve fraud, 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. In no event shall Parent be entitled to more than one payment of the Termination Fee in connection with a termination of this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of which such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or is payable. For the No Vote Termination Fee on more than one occasion andavoidance of doubt, while Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 8.5 and the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee under this Section 7.3, under no circumstances shall Parent and Merger Sub be permitted or entitled to receive the No Vote Termination Fee in accordance with (if entitled under this Section 8.3(b), 7.3) if the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeMerger is consummated.
(cd) If The Company acknowledges that the agreements contained in this Section 7.3 are an integral part of the Merger, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely pay an manner any amount due pursuant to this Section 8.37.3, then (i) the Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in the collection of such overdue amount, including in connection with any related claims, actions or proceedings commenced and (ii) the Company shall pay to Parent interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate as published set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedtwo percent (2%).
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (KMG Chemicals Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant be required to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) pay to Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; Fee in any of the following events (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood provided that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion):
(i) this Agreement is terminated by Parent pursuant to Section 8.1(f) (or by the Company or Parent pursuant to Section 8.1(b) or Section 8.1(d) at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 8.1(f));
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(h); or
(iii) (A) this Agreement is terminated by (1) Parent or the No Vote Company pursuant to Section 8.1(b), (2) Parent or the Company pursuant to Section 8.1(d), or (3) Parent pursuant to Section 8.1(e); (B) (x) in the case of sub-clauses (1) and (3), any Person shall have made to the Company Board of Directors, or shall have made, disclosed or otherwise communicated or made known, a Competing Proposal after the date hereof and prior to such termination and such Competing Proposal has not been withdrawn prior to such termination or (y) in the case of sub-clause (2), any Person shall have publicly made, disclosed or otherwise publicly communicated or made known, a Competing Proposal after the date hereof and prior to such termination and such Competing Proposal has not been publicly withdrawn prior to such termination and (C) within 12 months following the date of such termination, the Company shall have entered into a definitive agreement with respect to any Competing Proposal or consummated a transaction contemplated by any Competing Proposal; provided that for purposes of this Section 8.3(a)(iii), each reference to “15%” in the definition of “Competing Proposal” shall be deemed to be a reference to “50%,” except that the reference to “15%” in clause (a) of such definition shall be deemed to be a reference to “90%.”
(b) Payment of the Company Termination Fee shall be made to the account or accounts designated by Parent by wire transfer of immediately available funds (i) in the case of Section 8.3(a)(i), within three business days after the date of such termination, (ii) in the case of Section 8.3(a)(ii), prior to or concurrently with such termination, and (iii) in the case of Section 8.3(a)(iii), upon the earlier of the entry into of such definitive agreement with respect to, or the consummation of a transaction contemplated by, the applicable Competing Proposal.
(c) Parent shall be required to pay to the Company the Parent Termination Fee in any of the following events (provided that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion occasion):
(i) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) and, at or prior to the time of such termination, the conditions set forth in the event at least one of Section 7.1(b) or Section 7.1(c) shall not have been satisfied;
(ii) this Agreement is terminated by Parent or the Company Termination Fee becomes payable pursuant to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against Section 8.1(c);
(iii) this Agreement is terminated by the Company Termination Fee. Following receipt pursuant to Section 8.1(g) or Section 8.1(i); or
(iv) this Agreement is terminated by Parent (or one or more of its designees) of either the Company Termination Fee or Parent pursuant to Section 8.1(b) and, at the No Vote Termination Fee in accordance with this Section 8.3(b)time of such termination, the Company shall would have no further liability with respect been entitled to terminate this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received8.1(g) or Section 8.1(i).
(d) The Payment of the Parent Termination Fee shall be made to the account or accounts designated by the Company by wire transfer of immediately available funds within three business days after the date of the relevant termination contemplated by Section 8.3(c).
(e) Each of the parties acknowledge acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement Transactions and that, without these agreements, the parties would not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay the amount due pursuant to this Section 8.3 and, in order to obtain such payment, the Company or Parent, as the case may be, commences a Legal Proceeding that results in a court judgment in its favor, such paying party shall pay to the other party or parties, as applicable, such other party’s or parties’ reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amount of such payment from the date such payment was required to be made under this Section 8.3 until the actual date of payment at a rate per annum equal to the prime interest rate published in The Wall Street Journal on the date such interest begins accruing.
(f) The parties further acknowledge and agree that none of the Termination Fees is a penalty, but rather a fee payable upon termination of this Agreement, which has been calculated as a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such applicable Termination Fee is payable, for the efforts and resources expended and opportunities foregone by such compensated party while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.
(g) Notwithstanding anything to the contrary in this Agreement, but without limiting or affecting Parent’s rights to specific enforcement expressly set forth in Section 9.13, in any circumstance in which this Agreement is terminated and Parent is entitled to the Company Termination Fee from the Company pursuant to Section 8.3(a), such termination of this Agreement and receipt of payment of the Company Termination Fee (together with any costs and expenses of Parent due under Section 8.3(e)) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Parent Related Parties against the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, employees, partners, shareholders, managers, members, affiliates, Representatives or agents or any of their respective assignees or successors or any former, current or future officers, directors, employees, partners, shareholders, managers, members, affiliates, Representatives, agents assignees or successors of any of the foregoing (collectively, the “Company Related Parties”) for any cost, expense, loss or damage suffered as a result of, or arising from or otherwise in connection with (i) this Agreement or any of the other agreements, instruments and documents contemplated hereby or executed in connection herewith or the transactions contemplated hereby or thereby, (ii) the failure of the Merger and the other Transactions to be consummated, (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise or (iv) any oral representation made or alleged to have been made in connection herewith or therewith (collectively, the “Company Transaction Related Matters”), and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, and none of Parent, Merger Sub, nor any other Parent Related Party shall seek or be entitled to seek or recover any other damages or seek or be entitled to any other remedy, whether based on a claim at law or in equity, in contract, tort or otherwise, with respect to any losses or damages suffered in connection with any Company Transaction Related Matters. Parent, on behalf of itself and the Parent Related Parties, acknowledges and agrees that in no event shall (x) the Company’s liability for its actual and intentional fraud or Willful Breach of its representations, warranties, agreements or covenants pursuant to Section 8.2 exceed an aggregate amount equal to (1) $5,000,000, in the case of any actual and intentional fraud or Willful Breach of the covenants contained in Section 5.1 or (2) the amount of the Company Termination Fee, in all other such cases, and (y) the Company be liable for both (1) damages for the Company’s actual and intentional fraud or Willful Breach of its representations, warranties, agreements or covenants in accordance with clause (x) of this sentence and (2) the Company Termination Fee.
(h) Notwithstanding anything to the contrary in this Agreement, but without limiting or affecting the Company’s rights to specific enforcement expressly set forth in Section 9.13, the termination of this Agreement under the circumstances specified in Section 8.3(c) and receipt of payment of the Parent Termination Fee pursuant to this Section 8.3 and any costs and expenses of the Company pursuant to Section 8.3(e) (and the obligations of the Guarantor under the Guarantee (in accordance with the terms and conditions thereof) with respect thereto), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company Related Parties against any of Parent, Merger Sub, the Guarantor or any of their respective former, current or future general or limited partners, stockholders, controlling Persons, direct or indirect equityholders, managers, members, directors, officers, employees, affiliates, affiliated (or commonly advised) funds, representatives or agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, direct or indirect equityholder, manager, member, director, officer, employee, affiliate, affiliated (or commonly advised) fund, representative, agent, assignee or successor of any of the foregoing (collectively, the “Parent Related Parties”) or the lenders, agents, underwriters, commitment parties and arrangers of any Debt Financing (including pursuant to the Debt Financing Documents or any engagement letters, credit agreements, loan agreements, joinders or indentures relating to any Debt Financing), together with their respective affiliates, and their and their respective affiliates’ officers, directors, employees, controlling persons, advisors, attorneys, agents and representatives and their successors and assigns, including any successors or assigns via joinder agreements or credit agreements related thereto (a “Lender Related Party”) for any cost, expense, loss or damage suffered as a result of, or arising from or otherwise in connection with (i) this Agreement, the Guarantee, the Equity Commitment Letter or any of the other agreements, instruments and documents contemplated hereby or executed in connection herewith or the transactions contemplated hereby or thereby, (ii) the failure of the Merger or the other Transactions to be consummated (including the funding of the Financing), (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise or (iv) any oral representation made or alleged to have been made in connection herewith or therewith (collectively, the “Parent Transaction Related Matters”). Except as expressly provided in the immediately preceding sentence, none of Parent, Merger Sub, the other Parent Related Parties or the Lender Related Parties shall have any liability or obligation relating to or arising out of or in connection with any Parent Transaction Related Matters, except that nothing shall relieve Parent of its obligations under Section 6.14(c), Section 6.14(d), Section 8.3(e) and Section 9.3. For the avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement, other than termination of this Agreement pursuant to Section 8.3(c) and the right of the Company to receive payment of the Parent Termination Fee, reimbursement of any costs and expenses of the Company under Section 8.3(e) and reimbursement or payment of all amounts due under Section 6.14(c), Section 6.14(d) and Section 9.3, none of the Parent Related Parties or Lender Related Parties shall have any further liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement, the Guarantee, the Financing, the Financing Documents or the transactions contemplated hereby or thereby, and none of the Company, the Company Subsidiaries nor any other Company Related Party shall seek or be entitled to seek or recover any other damages or seek or be entitled to any other remedy, whether based on a claim at Law or in equity, in contract, tort or otherwise, with respect to any losses or damages suffered in connection with any Parent Transaction Related Matters.
(i) Notwithstanding the foregoing, nothing in Section 8.3(g) or Section 8.3(h) shall limit the right of a party to bring or maintain any Legal Proceeding (i) for injunction, specific performance or other equitable relief to the extent provided in Section 9.13, unless and until this Agreement has been terminated and the applicable Termination Fee has been paid to such party in accordance with this Section 8.3 and (ii) against the other parties or their affiliates arising out of or in connection with a breach of the Confidentiality Agreement. Under no circumstances will a party be entitled to receive both a grant of specific performance and the applicable Termination Fee (if payable to such party).
Appears in 1 contract
Samples: Merger Agreement (Central European Media Enterprises LTD)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement an Alternative Proposal, whether or not conditional, shall have been terminated pursuant made directly to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company Company’s stockholders generally or any other Person person shall have publicly disclosed or announced a Company an intention to make an Alternative Proposal made on or after Proposal, (B) following the date occurrence of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement an event described in the circumstances set forth in preceding clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (iA), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by (x) Parent pursuant to Section 7.01(b)(i) or Section 7.01(d)(i) or (y) by either the Company or Parent pursuant to Section 8.1(b)(iii7.01(b)(iii), and (C) [Failure the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal, or such a transaction is consummated (whether or not such Alternative Proposal was the same Alternative Proposal referred to Obtain in the foregoing clause (A)), in any such case within 12 months of the date this Agreement is terminated; or
(ii) this Agreement is terminated by the Company Stockholder Approval]pursuant to Section 7.01(c)(ii); thenor
(iii) this Agreement is terminated by Parent pursuant to Section 7.01(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.02(a), the Company shall, shall pay to Parent a termination fee of $40,000,000 in cash (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company “Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable occasion.
(b) With respect to Parent following any payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall required to be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this made pursuant to Section 8.3(b7.02(a)(i), the Company shall have no further liability pay $5,000,000 of the Termination Fee concurrently with the termination of this Agreement, and shall pay the remainder of the Termination Fee upon the occurrence of the events in Section 7.02(a)(i)(C). With respect to this Agreement any payment to be made pursuant to Section 7.02(a)(ii) or Section 7.02(a)(iii), the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach Company shall pay the Termination Fee concurrently with the termination of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeAgreement.
(c) If the Company fails to timely pay an amount due pursuant to this In any event under Section 8.37.02(a), the Company shall pay Parent interest pay, in addition to the Termination Fee or any part thereof, to an account or accounts designated by Parent, as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor (which may be delivered at any time on such amount at the prime rate as published in The Wall Street Journal in effect on or after the date such payment was required two Business Days before the termination of this Agreement) all of Parent’s and Sub’s actual and reasonably documented out-of-pocket fees and expenses (including legal fees and expenses) actually incurred by Parent, Sub and their Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (“Parent Expenses”), which amount shall not be made plus 3% per annum through the date such payment is actually receivedgreater than $5,000,000.
(d) The In the event that (A) either party shall terminate this Agreement pursuant to Section 7.01(b)(i) or 7.01(b)(ii) (with respect to Restraints related to any Regulatory Law), (B) as of the date of such termination any approval under any Regulatory Law required to be obtained prior to the Closing shall not have been obtained or any waiting period under any Regulatory Law required to be expired or terminated prior to the Closing shall not have expired or been terminated, (C) immediately prior to such termination, the conditions set forth in Sectionsv 6.01(a), 6.01(c) (other than a failure of such condition with respect to Restraints related to any Regulatory Law), 6.02(a) and 6.02(b) shall have been satisfied, then Parent shall pay to the Company, no later than two Business Days following such termination, a termination fee of $50,000,000 in cash (the “Regulatory Termination Fee”), it being understood that in no event shall the Company be required to pay the Regulatory Termination Fee on more than one occasion.
(e) In the event that the Company shall fail to pay the Termination Fee or Parent Expenses or Parent shall fail to pay the Regulatory Termination Fee, in each case as required pursuant to this Section 7.02 when due, such amounts shall accrue interest for the period commencing on the date such amounts became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase from time to time during such period, as such bank’s prime lending rate plus 1.50% . In addition, if the Company or Parent shall fail to pay such amounts when due, then such party shall also pay to the other party all of the other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee.
(f) Each of the parties acknowledge hereto acknowledges that the agreements contained in this Section 8.3 7.02 are an integral part of the transactions contemplated by this Agreement and thatthat the Termination Fee is not a penalty, without these agreementsbut rather is liquidated damages in a reasonable amount that will compensate Parent and Sub 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.
(g) Any payments made pursuant to this Section 7.02 shall be net of any amounts as may be required to be deducted or withheld therefrom under the parties would not enter into this AgreementCode or under any provision of applicable Tax Law.
Appears in 1 contract
Termination Fees. (ai) [Reserved]If this Agreement is terminated by Parent pursuant to Section 11.01(c)(i) or by the Company pursuant to Section 11.01(d)(i), then the Company shall pay to Parent (or its designee) by wire transfer of immediately available funds the Company Termination Fee, in the case of a termination by Parent, within one Business Day after such termination and, in the case of a termination by the Company, concurrently with, and as a condition to, such termination. For purposes hereof, “Company Termination Fee” means $33 Million.
(bii) In If (A) this Agreement is terminated by Parent or the event that:
(i) (1) This Agreement shall have been terminated Company pursuant to (xSection 11.01(b)(i) or Section 8.1(b)(i11.01(b)(iii) [End Date]or by Parent pursuant to Section 11.01(c)(ii), (yB) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but and prior to the earlier of such termination, any Person shall have publicly announced an intention (xwhether or not conditional) the Company Meeting to make an Acquisition Proposal or an Acquisition Proposal shall have become publicly known, and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3C) within twelve (12) months after the date of such termination, the Company enters into any transaction constituting Acquisition Proposal Documentation with respect to any Company Alternative Acquisition Proposal (regardless of whether such Acquisition Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, the same one referred to in clause (B) above) (provided that for purposes of this clause (iii)(C), the references each reference to “20% or more15%” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references a reference to “50% or more%”;
(ii) The ), then the Company shall have terminated this Agreement pursuant pay to Section 8.1(c)(iiParent (or its designee) [by wire transfer of immediately available funds, concurrently with the execution of such Acquisition Proposal Documentation, the Company Superior Proposal];Termination Fee.
(iii) Parent shall have terminated If this Agreement is terminated:
(A) by the Company pursuant to Section 8.1(d)(i11.01(d)(ii) [or Section 11.01(d)(iii) if in either case, at the time of such termination, the Company Change is not in material breach of Recommendation]its obligations under this Agreement; or
(ivB) This Agreement by the Company pursuant to Section 11.01(d)(iv) if, at the time of such termination, the Company is terminated not in material breach of its obligations under this Agreement; or (C) by the Company or Parent pursuant to Section 8.1(b)(iii11.01(b)(i) [Failure to Obtain Company Stockholder Approval]; thenif, at the Company shalltime of such termination, (Ax) Section 10.01(b) or Section 10.01(c) has not been satisfied, in the case of clause (i) aboveSection 10.01(c), upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation as a result of any Company Alternative Proposalinjunction or other order by a Governmental Authority having competent jurisdiction in connection with the HSR Act or any other applicable competition or antitrust law, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) and including, without limitation, and in the case of clause Sections 10.01(b) and 10.01(c), as a result of Parent not agreeing to take an Antitrust Action that would constitute a Burdensome Condition, (iiy) aboveas of the End Date, concurrently withall of the other conditions set forth in Section 10.01 and Section 10.02 have been satisfied (other than conditions that by their nature are to be satisfied at the Closing, but subject to such conditions being capable of being satisfied if the Closing Date were the date of termination) (provided that, solely for purposes of determining whether the conditions set forth in Section 10.02 have been satisfied, neither the failure of the condition set forth in Section 10.01(b) to be satisfied nor an injunction or other order by a Governmental Authority having competent jurisdiction in connection with the HSR Act or any other applicable competition or antitrust law having occurred and that caused the failure of the condition set forth in Section 10.01(c) to be satisfied, in each case in and of itself, shall constitute a “Company Material Adverse Effect”), and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designeesz) the Company Termination Fee; (C) is not in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more material breach of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into obligations under this Agreement.;
Appears in 1 contract
Samples: Merger Agreement (PharMerica CORP)
Termination Fees. (a) [Reserved].
(b) In the event thatIf this Agreement is terminated by:
(i) (1A) This Parent pursuant to Section 7.1(d)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or (B) either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any such case (I) after the execution of this Agreement and prior to such termination (or prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Acquisition Proposal shall have been terminated publicly disclosed (or, in the case of termination pursuant to (xSection 7.1(b)(i) or Section 8.1(b)(i) [End Date]7.1(d)(i), (y) Section 8.1(b)(iii) [Failure otherwise made known to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have Board) and not withdrawn (publicly, if publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (xdisclosed) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3II) within twelve (12) months of after such termination, any transaction constituting any Company Alternative Acquisition Proposal is consummated or an the Company enters into a definitive agreement providing for with respect to any Company Alternative Acquisition Proposal (regardless of when or whether such transaction is executed; provided, that, consummated) (provided that for purposes of this clause (iSection 7.3(a)(i)(B), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “fifty percent (50% or more%)”);
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];7.1(c)(ii); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]7.1(d)(ii); then, in any such case, the Company shallshall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same-day funds to the account or accounts designated by Parent, (A) in the case of clause (i) above, upon on the same day as the earlier of (x) any consummation of, or entry into a definitive agreement with respect to, the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposaltransaction contemplated therein, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, immediately prior to or substantially concurrently with, with such termination and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within promptly, but in no event later than two (2) Business Days after the date of such termination.
(b) In the event this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii), then the Company shall pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds funds) the reasonable and documented out-of-pocket costs and expenses, including all fees and expenses incurred in connection with the financing of the transactions contemplated by this Agreement and the fees and expenses of counsel, accountants, investment bankers, experts and consultants, incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to one or more accounts designated by exceed $50,000,000 (the “Parent Expenses”); provided that any payment of the Parent Expenses shall not affect Parent; it being understood ’s right to receive any Company Termination Fee otherwise due under Section 7.3(a), but shall reduce, on a dollar-for-dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a).
(c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion.
(d) Notwithstanding anything to the contrary set forth in this Agreement, in the event Parent’s right to receive payment from the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or pursuant to Section 7.3(a) and/or the No Vote Termination Fee in accordance with this right to receive payment of the Parent Expenses pursuant to Section 8.3(b7.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personshall, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent circumstances in which the Company Termination Fee becomes or Parent Expenses (as applicable) are payable hereunder and are paid in full, constitute the sole and exclusive monetary remedy (other than (i) in the event of fraud or an intentional breach by the Company of this Agreement and (ii) Parent’s right, notwithstanding having received the Parent Expenses, to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to receive the Company Termination Fee less the No Vote Termination Fee.
(cParent Expenses in the circumstances expressly contemplated in Section 7.3(a)) If of Parent and Merger Sub against the Company fails to timely pay an amount due pursuant to this Section 8.3and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Company shall pay Parent interest on such amount at Related Parties”) for all losses and damages suffered as a result of the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and thatupon payment of such amounts when so payable, without these agreements, none of the parties would not enter into Company Related Parties shall have any further liability or obligation relating to or arising out of this AgreementAgreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to any amounts owing pursuant to Section 7.3(e)).
Appears in 1 contract
Samples: Merger Agreement
Termination Fees. Notwithstanding any provision in this Agreement to the contrary:
(a) [Reserved].
(b) In the event that:If
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 7.1(g); or
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii7.1(h) [Failure or, following a material breach of Section 5.3, pursuant to Obtain Company Stockholder Approval]Section 7.1(f); then, the Company shall, then in any such event described in 7.2(a)(i) or (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designeesii) the Company Termination Fee; shall pay to Parent a fee of fifty (BU.S.$50) million (the "FULL FEE") in the case of clause (ii) above, concurrently with, cash and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein hereby to Parent (provided that, subject to Section 8.11 hereof, nothing herein shall release any party from liability for intentional breach or its Subsidiaries or Affiliates or any other Personfraud), other than in respect of Willful such payment to be made concurrently with, and Material Breach a condition to, the termination of this Agreement (in the case of Section 7.2(a)(i)) or Fraud within two business days following the termination of this Agreement (in the case of Section 7.2(a)(ii)), it being understood that in no event shall the Company be required to pay the Full Fee on more than one occasion. Any such payment shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law.
(b) If (A) at any time after the date of this Agreement, any Company Alternative Proposal is publicly proposed or disclosed (or, in the case of a termination pursuant to Section 7.1(b), is publicly disclosed or otherwise communicated to the extent Board of Directors of the Company) prior to, and not irrevocably withdrawn at the time of, the Company Termination Fee becomes payable Meeting and (B) this Agreement is terminated pursuant to Section 7.1(b) (but only if at such time Parent would not be prohibited from terminating this Agreement by application of Section 7.1(b)(ii)), by Parent pursuant to Section 7.1(f) or by Parent or the Company pursuant to Section 7.1(d); PROVIDED, that for purposes of this Section 7.2, a Company Alternative Proposal shall not be deemed to be irrevocably withdrawn, if, prior to the six month anniversary of the termination of this Agreement, the offeror or its affiliates shall have disclosed publicly or to the Company the intent of resubmitting or resubmits such proposal or any amended or substitute Company Alternative Proposal, then the Company shall pay to Parent a fee of twenty five (U.S.$25) million (the "PARTIAL FEE") in cash, and, subject to Section 7.2(c), shall have no further liability with respect to this Agreement or the transactions contemplated hereby to Parent (provided that nothing herein shall release any party from liability for intentional breach or fraud), such payment to be made within two business days following payment the termination of this Agreement (in the No Vote Termination Feemanner described in this Section 7.2(b)), any obligation it being understood that in no event shall the Company be required to pay (or cause the Partial Fee if the Full Fee is otherwise required to be paid) an amount equal . Any such payment shall be reduced by any amounts as may be required to the Company Termination Fee less the No Vote Termination Feebe deducted or withheld therefrom under applicable Tax Law.
(c) If the Company fails to timely pay an amount due Partial Fee is paid pursuant to Section 7.2(b), and within 6 months after the termination of this Section 8.3Agreement, any definitive agreement providing for a Qualifying Transaction (as defined below) shall have been entered into, or a Qualifying Transaction shall have been consummated, then the Company shall pay to Parent interest on such amount at an additional fee of twenty five (U.S.$25) million in cash and shall have no further liability with respect to this Agreement or the prime rate as published in The Wall Street Journal in effect on the date transactions contemplated hereby to Parent (provided that, nothing herein shall release any party from liability for intentional breach or fraud), such payment was to be made within two business days following the earlier of the execution of such definitive agreement or the consummation of such Qualifying Transaction. Any such payment shall be reduced by any amounts as may be required to be made plus 3% per annum through the date such payment is actually receiveddeducted or withheld therefrom under applicable Tax Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. If:
(a) [Reserved].
(b) In the event that:
(i) (1) This this Agreement shall have been is terminated by Parent or the Company pursuant to Section 8.1(b) (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months case of a termination by the Company, only if at such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall time Parent would not be deemed to be references to “50% or more”;
(ii) The Company shall have terminated prohibited from terminating this Agreement pursuant to Section 8.1(c)(ii8.1(b)) [or by Parent pursuant to Section 8.1(e) and (ii) within eighteen (18) months after termination of this Agreement, the Company Superior consummates a transaction in respect of, or enters into a letter of intent, agreement in principle, acquisition agreement or other definitive agreement providing for, any Competing Proposal (for purposes of this subsection, substituting 50% for the 10% thresholds set forth in the definition of Competing Proposal]);
(iiib) Parent shall have terminated this Agreement is terminated by Parent pursuant to Section 8.1(d)(i) [Company Change of Recommendation]8.1(g); or
(ivc) This this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]8.1(h); then, then in any such event the Company shallshall pay to Parent a fee payable in cash equal to $10,257,222 (the "Company Termination Fee"), less the amount of any Expense Reimbursement paid pursuant to Section 8.6(b), to an account designated in writing by Parent, and thereafter neither the Company nor any other person shall (Asubject to the provisions of Section 8.2(b)) have any further liability to Parent, Acquisition Sub or any other person with respect to this Agreement or the transactions contemplated hereby (and upon payment thereof the Company Termination Fee shall be the sole and exclusive remedy (subject to the provisions of Section 8.2(b) ) of Parent and Acquisition Sub against the Company, its subsidiaries and their respective former, current and future Representatives for any loss suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder), such payment to be made (i) in the case of clause (i) aboveSection 8.3(a), upon at the earlier of (xA) when the execution Company enters into a letter of an intent, agreement in principle, acquisition agreement or other definitive agreement providing for any Company Alternative such Competing Proposal and or (yB) the consummation when a transaction in respect of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Feesuch Competing Proposal is consummated; (Bii) in the case of clause (ii) aboveSection 8.3(b), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within no later than two (2) Business Days after the termination of such termination, pay this Agreement; or (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (Diii) in the case of clause (iv) aboveSection 8.3(c), within two (2) Business Days upon the termination of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parentthis Agreement; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee fee referred to in this Section 8.3 on more than one occasion andoccasion. For the avoidance of doubt and notwithstanding anything to the contrary herein, in the event any payment by the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid Expense Reimbursement shall be credited against the Company Termination Fee. Following , if any, that may become payable by the Company hereunder, and following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, Parent shall not thereafter be entitled to receive any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeExpense Reimbursement.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii) or the Company pursuant to Section 7.1(d)(ii), then the Company shall pay to Parent, no later than the second (2nd) Business Day following termination in the case of Section 7.1(c)(ii) and concurrently with termination in the case of Section 7.1(d)(ii), by wire transfer of same-day funds (i) a termination fee of $5,850,000 (the "Termination Fee") and (ii) all reasonable out-of-pocket expenses, actually documented and incurred or payable by or on behalf of Parent or Merger Sub in connection with or in anticipation of the Transactions (whether before or after the date of this Agreement), including all attorneys' fees, financial advisor's fees (including fees set forth in Section 4.10), accountants' fees and filing fees (the "Expense Payment"); provided that in no circumstance shall the Expense Payment exceed $1 million in the aggregate.
(b) In the event that:
that (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] Parent or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) 7.1(b)(iii), or Parent shall have terminated terminate this Agreement pursuant to Section 8.1(d)(i7.1(c)(i) [as a result of a breach of Section 5.3, and (ii) in each case prior to the time of such termination a bona fide Takeover Proposal or an intention (whether or not conditional) to make a Takeover Proposal has been publicly made or otherwise made known to the Board of Directors of the Company Change or its stockholders and not withdrawn at least five (5) Business Days prior to termination, then the Company shall pay to Parent, no later than the second (2nd) Business Day following termination in the case of Recommendation]; or
a termination by Parent and concurrently with such termination in the case of a termination by the Company, by wire transfer of same-day funds, one-half of the Termination Fee and the entire Expense Payment, and (iviii) This Agreement if, within 12 months after the date of such termination, a definitive agreement is terminated entered into by the Company or Parent pursuant any of its Affiliates with respect to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; thenany Takeover Proposal or any Takeover Proposal is consummated, then the Company shallshall pay to Parent, (A) in on the case of clause (i) abovedate such agreement is entered into or on the date that such Takeover Proposal is consummated, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposalwhichever is earlier, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds same-day funds, an additional amount equal to one or more accounts designated by Parentone-half of the Termination Fee; it being understood provided, however, that for the purpose of this Section 7.3(b), all references in no event the definition of Takeover Proposal to "15%" shall instead be deemed to refer to "a majority".
(c) Each of the Company be required to pay and Parent acknowledges that the Company Termination Fee or agreements contained in this Section 7.3 are an integral part of the No Vote Termination Fee on more than one occasion andTransactions and that, without these agreements, Parent could not enter into this Agreement. Accordingly, in the event that the Company shall fail to pay the Termination Fee becomes payable to or Expense Payment when due, the Company, shall reimburse Parent following payment for all costs and expenses incurred or accrued by it (including reasonable fees and expenses of counsel) in connection with the No Vote Termination Fee, collection under and enforcement of this Section 7.3 with interest on the amount of the No Vote Termination Fee actually paid and/or Expense Payment, as the case may be, from the date that such payment was required to be made until the date of actual payment at the prime rate of Citibank, N.A, in effect on the date that such payment was required to be made.
(d) The parties agree that the payment of the Termination Fee and/or Expense Payments shall be credited against the Company Termination Fee. Following receipt by sole and exclusive remedy available to Parent (or one or more of its designees) and Merger Sub with respect to this Agreement and the Transactions in the event any payment of the Company Termination Fee or and/or Expense Payments become due and payable under the No Vote Termination Fee in accordance with terms of this Section 8.3(b)Agreement, and, upon payment of the applicable amount, the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeMerger Sub hereunder.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement a Third Party shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced made a Company Alternative Competing Proposal made on or after the date of this Agreement, (B) this Agreement but prior to the earlier of is subsequently terminated by (x) the Company Meeting and or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or (y) the termination Parent pursuant to Section 8.1(d)(i) as a result of a breach of any representation, warranty, covenant or agreement under this Agreement in by the circumstances set forth in clause (i)(1) above Company, and at the time of such termination, such Competing Proposal was not withdrawn, and (3C) within twelve (12) months of such terminationtermination of this Agreement, any the Company consummates a transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executedinvolving a Competing Proposal; provided, thathowever, for purposes of this that clause (i), the references to “20% or more” iii) in the definition of “Company Alternative "Competing Proposal” " shall be deemed to be references to “50% or more”deleted;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(b)(iii8.1(d)(ii) [Failure to Obtain Company Stockholder Approval]; then, or Section 8.1(d)(iii). then the Company shall, (A) in the case of clause (i) above, upon no later than two (2) Business Days following the earlier date of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative such transaction involving a Competing Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, prior to or substantially concurrently with, and as a condition to the effectiveness of with such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (C) in the case of clause (iii) above, within no later than two (2) Business Days after the date of such termination, pay (pay, or cause to be paid) , at the direction of Parent, the Termination Fee (less the amount of any Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) aboveExpenses previously paid to Parent pursuant to Section 8.6, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parentif any); it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in occasion. Notwithstanding the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personforegoing, other than in respect the case of Willful and Material Breach fraud or as otherwise permitted by Section 8.2, Parent's right to receive the Termination Fee pursuant to this Section 8.3(a) shall be of no further force or effect if Parent or any Parent Related Party makes any demand or claim for damages suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise in any Proceeding against the Company or any Company Related Party other than for the payment of the Termination Fee.
(b) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(c)(i) as a result of a breach of any representation, warranty, covenant or agreement under this Agreement or Fraud or, to the extent Section 8.1(c)(iii) or (ii) the Company Termination Fee becomes payable or Parent pursuant to Section 8.1(b)(i) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 8.1(c)(iii), then Parent following payment shall, no later than two (2) Business Days after the date of the No Vote Termination Feesuch termination, any obligation to pay (pay, or cause to be paid) an amount equal , at the direction of the Company, the Reverse Termination Fee; it being understood that in no event shall Parent be required to pay the Company Reverse Termination Fee less on more than one occasion. Notwithstanding the No Vote foregoing, other than in the case of fraud or as otherwise permitted by Section 8.2, the Company's right to receive the Reverse Termination Fee.
(c) If the Company fails to timely pay an amount due Fee pursuant to this Section 8.3, 8.3(b) shall be of no further force or effect if the Company shall pay Parent interest on such amount at or any Company Related Party makes any demand or claim for damages suffered as a result of the prime rate as published in The Wall Street Journal in effect on failure of the date such payment was required Merger to be made plus 3% per annum through consummated or for a breach or failure to perform hereunder or under the date such Guaranty or otherwise in any Proceeding against Parent or any Parent Related Party other than for the payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this AgreementReverse Termination Fee.
Appears in 1 contract
Samples: Merger Agreement (Compuware Corp)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1) This (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) and, at the time of such termination, any of the conditions set forth in Section 7.01(b) or, in connection with the Required Statutory Approvals, Section 7.01(c) shall have not been satisfied and such conditions, if waivable by Parent, shall not have been waived by Parent, (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Statutory Approvals) or (C) the Company terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a), Section 7.03(a), Section 7.03(b) and Section 7.03(c) shall have been terminated pursuant satisfied or waived (except for (I) those conditions that by their nature are to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination or (zII) Section 8.1(d)(ii) [Company Breach those conditions that have not been satisfied as a result of Reps and Warranties a breach of this Agreement by Parent), or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminates this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) 8.01(c)(iii), then Parent shall have terminated this Agreement pursuant pay to Section 8.1(d)(ithe Company a fee of Sixty-Five Million United States Dollars ($65,000,000) [in cash (the “Parent Termination Fee”). Parent shall pay the Parent Termination Fee to the Company Change of Recommendation]; or
(iv) This Agreement is terminated to an account designated in writing by the Company or Parent pursuant to Section 8.1(b)(iiiCompany) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, no later than three (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (23) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) after the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment date of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Feeapplicable termination.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Algonquin Power & Utilities Corp.)
Termination Fees. (a) [Reserved].
(b) In the event thatIf this Agreement shall be validly terminated:
(i) (1) This Agreement shall have been terminated pursuant to by (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently withprior to, and as a condition to the effectiveness of such termination, pay or (or cause y) by Buyer pursuant to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) aboveSection 8.1(d)(ii), then within two (2) Business Days of such termination, Company shall pay Buyer, subject to applicable Law and Section 8.2(d), a non-refundable fee in an amount equal to $11,029,889 (or cause to be paid) Parent (or one or more of its designees) the “Company Termination Fee”); or
(ii) (A) by (x) Company pursuant to Section 8.1(b)(ii) at a time when Buyer would have been entitled to terminate this Agreement under Section 8.1(d)(iii) or (y) Buyer pursuant to Section 8.1(d)(iii), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn, and (DC) in the case Company enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of clause whether such consummation happens prior to or following such twelve (iv) above12)-month period), then, within two (2) Business Days of after the date that such terminationTakeover Proposal is consummated, Company shall pay (or cause the Buyer, subject to be paid) Parent (or one or more of its designees) applicable Law and Section 8.2(d), the No Vote Company Termination Fee; provided, that for purposes of this Section 8.2(a)(ii), the term “Takeover Proposal” will have the meaning assigned to such term in each case Article IX, except that references to “25%” will be deemed to be references to “50%”. The Company Termination Fee shall be paid by wire transfer of immediately available funds to Buyer or, at the election of Buyer, to one of its Consolidated Subsidiaries, to an account designated in writing to Company by Buyer if Buyer shall have furnished to Company wire payment instructions prior to the date of payment or, otherwise, by certified or more accounts designated by Parentofficial bank check; it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(b) If this Agreement is terminated (i) by Buyer pursuant to Section 8.1(b)(ii) at a time when Company would have been entitled to terminate this Agreement under Section 8.1(c)(iii) or (ii) by Company pursuant to Section 8.1(c)(iii), then Buyer shall pay to Company a non-refundable fee in an amount equal to $11,029,889 (the No Vote “Buyer Termination Fee”) (which fee shall be payable within two (2) business days after such termination, by wire transfer of immediately available funds to an account designated in writing by Company if Company shall have furnished to Buyer wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check); it being understood that in no event shall Buyer be required to pay the Buyer Termination Fee on more than one occasion andoccasion.
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.8, (i) in the event the Company Termination Fee becomes is payable pursuant to Parent following Section 8.2(a), Buyer’s right to receive payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the from Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b8.2(a), shall constitute the sole and exclusive monetary remedy of Buyer and Merger Sub and Buyer Related Parties against Company and its subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder, and upon payment of such amount, none of the Company Related Parties shall have no any further liability with respect Liability relating to or arising out of this Agreement or the transactions contemplated herein Transactions provided that in no event shall Company be subject to Parent or its Subsidiaries or Affiliates or any other Person, other than Liability in respect of Willful and Material Breach of connection with this Agreement or Fraud or, the Transactions in an aggregate amount (including for monetary damages (including pursuant to the extent Section 8.3) and any payment of the Company Termination Fee becomes payable to Parent following payment Fee) in excess of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an aggregate amount equal to the Company Termination Fee less (the No Vote “Company Liability Cap”) (except in all cases that Company shall also be obligated with respect to its applicable obligations under Section 8.2(d) and Section 8.4), and (ii) in the event the Buyer Termination Fee is payable pursuant to Section 8.2(b), Company’s right to receive payment from Buyer of the Buyer Termination Fee in accordance with Section 8.2(b) (or from the Guarantor pursuant to the Guaranty), shall constitute the sole and exclusive monetary remedy of Company and the Company Related Parties against Buyer and its subsidiaries, Merger Sub, the Guarantor, the Financing Sources and any of their respective former, current or future direct or indirect general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Buyer Related Parties”) for all losses and damages suffered as a result of the failure of the Transactions, the Equity Commitment Letter or Guaranty to be consummated or for a breach or failure to perform the applicable provisions hereunder, and upon payment of such amount, none of the Buyer Related Parties shall have any further Liability relating to or arising out of this Agreement, the Equity Commitment Letter or the Guaranty, or the Transactions; provided that, in no event shall Buyer and the Buyer Related Parties be subject to any Liability in connection with this Agreement or the Transactions in an aggregate amount (including for monetary damages (including pursuant to Section 8.3) and any payment of the Buyer Termination Fee) in excess of an aggregate amount equal to the Buyer Termination Fee (the “Buyer Liability Cap”) (except in all cases that Buyer shall also be obligated with respect to its indemnification obligations contained in Section 6.12(h) and its applicable obligations under Section 8.2(d) and Section 8.4); provided, further, that the Buyer Termination Fee shall be reduced by the amount of any payments in respect of indemnification obligations or for other losses, damages or expenses made by the Buyer or Buyer Related Parties to Company.
(cd) If Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.2 is an integral part of the Transactions, (ii) each of the Company Termination Fee and the Buyer Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate, with respect to the Company Termination Fee, Buyer and its Affiliates and with respect to the Buyer Termination Fee, Company and its Affiliates, in the circumstances in which such fee 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 Transactions, which amount would otherwise be impossible to calculate with precision, and (iii) without the agreements contained in this Section 8.2, the parties hereto would not enter into this Agreement, accordingly, if Company or Buyer, as the case may be, fails to timely pay an any amount due pursuant to this Section 8.38.2 and, in order to obtain such payment, either Company or Buyer, as the Company case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.2, such paying party shall pay Parent the other party its costs and expenses in connection with such suit, together with interest on such amount at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Goldman Sachs Private Middle Market Credit LLC)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) If (1) This (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) and, at the time of such termination, any of the conditions set forth in Section 7.01(b) or, in connection with the Required Statutory Approvals, Section 7.01(c) shall have not been satisfied, (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if, and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Statutory Approvals) or (C) if the Company terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a), Section 7.03(a), Section 7.03(b) and Section 7.03(c) shall have been terminated pursuant satisfied or waived (except for (I) those conditions that by their nature are to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination or (zII) Section 8.1(d)(ii) [Company Breach those conditions that have not been satisfied as a result of Reps and Warranties a breach of this Agreement by Parent), or Covenants], (2) the Company or any other Person terminates this Agreement pursuant to Section 8.01(c)(iii), then Parent shall have publicly disclosed or announced pay to the Company a fee of $326,900,000 in cash (the “Parent Termination Fee”). Parent shall pay the Parent Termination Fee to the Company Alternative Proposal made on or (to an account designated in writing by the Company) no later than three (3) Business Days after the date of the applicable termination.
(ii) If the Company terminates this Agreement but pursuant to Section 8.01(c)(i) or Parent terminates this Agreement pursuant to Section 8.01(d)(i), the Company shall pay to Parent a fee of $212,500,000 in cash (the “Company Termination Fee”). The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to the earlier of (x) the Company Meeting and (y) the or concurrently with such termination of this Agreement in by the circumstances set forth in clause Company pursuant to Section 8.01(c)(i) or no later than three (i)(13) above Business Days after the date of such termination of this Agreement by Parent pursuant to Section 8.01(d)(i).
(iii) If (1) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(iii), (2) prior to the Company Shareholders Meeting, a Company Takeover Proposal shall have been publicly disclosed and, as of the Company Shareholders Meeting, such Company Takeover Proposal shall not have been withdrawn and (3) within twelve nine (129) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes after the termination of this clause (i)Agreement, the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant entered into a definitive agreement with respect to, or consummated, a Company Takeover Proposal (whether or not the same Company Takeover Proposal referred to Section 8.1(c)(ii) [Company Superior Proposal];
in clause (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by 2)), then the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, shall pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition Fee to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designeesto an account designated in writing by Parent) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days after the earlier of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the date the Company Termination Fee; and (D) in the case enters into such definitive agreement or consummates such Company Takeover Proposal. For purposes of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees3) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b8.02(b)(iii), the term “Company Takeover Proposal” shall have no further liability with respect the meaning assigned to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Personsuch term in Section 5.01, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge except that the agreements contained applicable percentage in this Section 8.3 are an integral part the definition of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement“Company Takeover Proposal” shall be “50.1%” rather than “30% or more”.
Appears in 1 contract
Samples: Merger Agreement (Teco Energy Inc)
Termination Fees. (a) [Reserved].
(b) In the event thatthat this Agreement is validly terminated:
(i) (1) This Agreement shall have been terminated by Seller pursuant to Section 7.01(d)(i) or Section 7.01(d)(ii) (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure or is otherwise terminated when Seller was entitled to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated terminate this Agreement pursuant to Section 8.1(c)(ii7.01(d)(i) [Company Superior Proposal];or Section 7.01(d)(ii)),
(ii) by Purchaser pursuant to Section 7.01(b)(ii) at a time when (A) the conditions set forth in Section 6.01(c)(i) is the only condition in Article VI which remains unsatisfied (other than those conditions that by their terms are to be satisfied or waived at the Closing itself, but subject to the ability of such conditions to be satisfied at the Closing), (B) the DOE’s written response to the DOE Preacquisition Application following the completion of the DOE’s comprehensive review has been received and (C) Purchaser does not have a right to terminate this Agreement under Section 7.01(b)(i), Section 7.01(b)(iii), or Section 7.01(c)(i), or (iii) Parent shall have terminated this Agreement by Purchaser pursuant to Section 8.1(d)(i7.01(c)(ii) [Company Change of Recommendation]; or
(ivat a time when Purchaser does not have a right to terminate this Agreement under Section 7.01(b)(i) This Agreement is terminated by the Company or Parent pursuant Section 7.01(c)(i), then Purchaser shall pay to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay Seller (or cause to be paidSeller’s designee) Parent (or one or more a non-refundable termination fee of its designees) the Company Termination Fee; (B) $88,800,000 in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case cash by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood (the “Termination Fee”) as promptly as practicable and in any case within two Business Days following such termination.
(b) Purchaser acknowledges that in no the event that Purchaser shall the Company be required fail to pay the Company Termination Fee when due, Purchaser shall reimburse Seller and its Affiliates for all reasonable costs and expenses actually incurred or accrued by Seller or its Affiliates (including reasonable fees and expenses of counsel) in connection with any action (including the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable filing of any lawsuit) taken to Parent following collect payment of such amount, together with interest on such unpaid amounts at four percent per annum, calculated on a daily basis from the No Vote Termination Fee, date such amounts were required to be paid to the amount date of the No Vote Termination Fee actually paid actual payment. The Parties acknowledge and agree that nothing in this Section 7.03 shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this deemed to affect their respective rights to specific performance under Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee10.13.
(c) If In the Company fails to timely pay an amount due event that Seller shall receive full payment pursuant to this Section 8.37.03(a), the receipt of the Termination Fee, as applicable, shall be deemed to be liquidated damages for any and all Losses suffered or incurred by Seller, the Company Group or any of the Related Parties or their respective Representatives in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and none of Seller, the Company Group or any of the Related Parties or their respective Representatives shall pay Parent interest on be entitled to bring or maintain any Proceeding against Purchaser, the Debt Financing Sources or their respective Affiliates and Representatives arising out of or in connection with this Agreement, the Debt Commitment Letter, any Fee Letter, the Ancillary Documents or any transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedtermination.
(d) The parties Parties acknowledge and agree that the agreements contained in this Section 8.3 7.03 are an integral part of the transactions contemplated by this Agreement, that any payment of the Termination Fee is not a penalty but is liquidated damages in a reasonable amount that will compensate Seller in the circumstances in which such fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision and that, without these agreements, the parties Parties would not enter have entered into this Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 7.03 and Seller’s rights set forth in Section 10.13, the Parties acknowledge that, in the circumstances where the Termination Fee is paid to Seller pursuant to Section 7.03(a), the reimbursement and indemnification obligations of Purchaser and its Affiliates under Section 5.15 and Seller’s receipt of the Termination Fee and any other amounts pursuant to Section 7.03(b) from Purchaser and Seller’s right to seek specific performance of this Agreement by Purchaser prior to termination of this Agreement, as provided for and subject to the limitations set forth in Section 10.13, shall be the sole and exclusive remedy of Seller, the Company Group and the Related Parties and their respective Representatives, successors and assigns against Purchaser, the Debt Financing Sources and their respective Affiliates and Representatives for any Losses and Liabilities suffered as a result of this Agreement, the Debt Commitment Letter, any Fee Letter, the Ancillary Documents, the transactions contemplated hereby and thereby, the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder, any statements or representations made in connection with this agreement or under any theory of liability related to any of the foregoing or otherwise, whether at law or in equity, in contract, in tort or otherwise, and upon receipt by Seller of such amounts, none of Purchaser, the Debt Financing Sources or their respective Affiliates and Representatives shall have any further Liability or obligation relating to or arising out of this Agreement, the Debt Commitment Letter, any Fee Letter, the Ancillary Documents or the transactions contemplated hereby or thereby. For the avoidance of doubt, in the circumstances where this Agreement has been terminated by Seller pursuant to Section 7.01(d)(i) or Section 7.01(d)(ii) and Seller has received full payment of the Termination Fee pursuant to Section 7.03(a), none of Seller, the Company Group or any Related Party or their respective Affiliates, Representatives, successors and assigns will be entitled to monetary damages in excess of the amount of the Termination Fee (except for any indemnification or reimbursement pursuant to Section 5.16 and any amounts payable pursuant to Section 7.03(b)). In any other circumstance, the amount of the Termination Fee shall not serve as a cap or limitation on the amount of any monetary damages to which Seller, the Company Group or any Related Party of their respective Affiliates, Representatives, successors and assigns may be entitled pursuant to or in connection with this Agreement, the Debt Commitment Letter, any Fee Letter, the Ancillary Documents and the transactions contemplated hereby and thereby (including the failure to consummate any such transactions). In no event shall (i) Purchaser be required to pay the Termination Fee on more than one occasion, whether paid by or on behalf of Purchaser or any of its Affiliates or (ii) Seller, the Company Group or the Related Parties be entitled to receive (or designate any other Persons to receive) the Termination Fee more than once, and while Seller may pursue both a grant of specific performance to consummate the Closing in accordance with Section 10.13 and the payment of the damages or Termination Fee under Section 7.03(a), under no circumstances shall Seller be permitted or entitled to receive both a grant of specific performance to consummate the Closing and any payment of the Termination Fee. For the avoidance of doubt, in no event shall the Termination Fee be payable on more than one occasion, regardless of whether the termination fee is payable in respect of more than one event giving rise to a right of termination.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by the Company pursuant to Section 9.1(e) or by Parent or Merger Sub pursuant to Section 9.1(f)(i) or 9.1(f)(iii), then the Company shall pay to Parent the Termination Fee by wire transfer of same day funds concurrently with any such termination. Any amount that becomes payable pursuant to this Section 9.2(a) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(b) In the event that:
that after the date hereof, (i) (1) This Agreement a Company Acquisition Proposal shall have been made to the Company or shall have been made directly to the shareholders of the Company generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make a Company Acquisition Proposal, (ii) thereafter this Agreement is terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i9.1(b)(i), the references 9.1(b)(iii), 9.1(d) (with respect to “20% breaches of covenants, but not representations and warranties), 9.1(f)(ii), or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
9.1(f)(iv), and (iii) Parent shall have terminated this Agreement pursuant within 12 months after any such termination referred to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company enters into a definitive Contract with respect to, or consummates the transactions contemplated by, any Company Acquisition Proposal (regardless of whether such Company Acquisition Proposal is (x) made before or after termination of this Agreement or (y) is the same Company Acquisition Proposal referred to in clause (i) above), then the Company shall pay to Parent the Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall same day funds, on the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment date of the No Vote Termination Fee, the amount first to occur of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent such event(s) referred to above in this clause (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(biii), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the The Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge acknowledges and agrees that the agreements contained in this Section 8.3 9.2 are an integral part of the transactions contemplated by this Agreement and thatAgreement, that without these agreementsagreements Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. If the Company fails to pay Parent the Termination Fee when due, the Company shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent and Merger Sub in connection with the collection under and enforcement of this Section 9.2 and shall pay interest on the amount of the Termination Fee at the rate of 10% per annum, compounded daily, from the date such Termination Fee became due and owing through and including the date of payment. In addition, the parties would not enter into further agree that, if the Company fails to pay Parent any amount payable under this Agreement when due or Parent fails to pay the Company any amount payable under this Agreement when due (other than the amounts referred to in the prior sentence), the Company or Parent, as the case may be, shall pay interest on such amount at the rate of 10% per annum, compounded daily, from the date such amount became due and owing through and including the date of payment.
(d) Each of Parent and Merger Sub agrees that notwithstanding anything in this Agreement to the contrary (including Section 9.3), in the event that the Termination Fee is paid to and accepted by Parent pursuant to this Section 9.2, the payment of such amount shall be the sole and exclusive monetary remedy of Parent and Merger Sub, and their respective Subsidiaries, shareholders, Affiliates, officers, managers, directors, employees and Representatives against the Company or any of its Representatives or Affiliates for, and in no event will Parent or Merger Sub or any other such person seek to recover any other money damages or seek any other monetary remedy based on a claim in law or equity with respect to, (i) any loss suffered as a result of the failure of the Merger to be consummated, (ii) the termination of this Agreement, (iii) any liabilities or obligations arising under this Agreement, or (iv) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and upon payment and acceptance of the Termination Fee, neither the Company nor any of its Representatives or Affiliates shall have any further liability or obligation to Parent or Merger Sub relating to or arising out of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Termination Fees. (a) [Reserved]If either Parent or Company terminates this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(iii) and, at the time of such termination, all of the conditions set forth in Sections 7.01 and 7.03 have been satisfied (other than (a) the condition set forth in Section 7.01(d); provided that such condition would have been reasonably capable of being satisfied on the date of termination if the Closing occurred on such date and (b) those conditions that by their nature are to be satisfied at the Closing; provided that such conditions would have been satisfied on the date of termination if the Closing occurred on such date) or waived, other than those conditions set forth in Section 7.01(b) or 7.01(c) (with respect to Section 7.01(c), solely to the extent that such Restraint arises under the HSR Act, any other Review Law or the DPA), then Parent shall pay to Company $114,600,000 (the “Parent Termination Fee”) in immediately available funds to an account designated by Company. Such payment shall be due (x) concurrently with termination by Parent or (y) within two Business Days after written notice of termination by Company (as applicable). Parent shall not be obligated to make more than one payment pursuant to this Section 8.03(a).
(b) In the event thatIf:
(i) Parent terminates this Agreement pursuant to Section 8.01(d)(ii);
(1ii) This Company terminates this Agreement pursuant to Section 8.01(c)(ii); or
(iii) (A) this Agreement is terminated by either Company or Parent pursuant to Section 8.01(b)(i) (but only if the Company Stockholders’ Meeting has not been held by the End Date) or Section 8.01(b)(ii), (B) a Company Acquisition Proposal shall have been terminated pursuant publicly made to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have been made directly to the stockholders of Company or shall have otherwise become publicly disclosed or announced a Company Alternative Proposal made on or known, in each case after the date of this Agreement but prior to the earlier of (x) the Company Meeting such termination, and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3C) within twelve (12) 12 months of such termination, any transaction constituting any termination Company Alternative (1) enters into a definitive agreement with respect to a Company Acquisition Proposal and such Company Acquisition Proposal is subsequently consummated or an agreement providing for any (2) consummates a Company Alternative Proposal is executedAcquisition Proposal; provided, provided that, for the purposes of this clause (iSection 8.03(b)(iii), the references to “20% or more15%” in the definition of “Company Alternative Proposal” Acquisition Proposal shall be deemed to be references to “50% or more%”;
(ii) The , then in any such case Company shall have terminated this Agreement pursuant pay to Section 8.1(c)(iiParent $47,750,000 (the “Company Termination Fee”) [Company Superior Proposal];
in immediately available funds to an account designated by Parent. Such payment shall be due (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (Ax) in the case of a termination specified in clause (i) above), upon the earlier within two Business Days after written notice of (x) the execution of an agreement providing for any Company Alternative Proposal and termination by Parent or (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of a termination specified in clause (ii) aboveor (iii), concurrently with, and as a condition at or prior to the effectiveness earlier of such termination, pay (or cause to be paid) Parent (or one or more the entering into of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee agreement or the No Vote Termination Fee on consummation of the transaction referred to therein. Company shall not be obligated to make more than one occasion and, in the event the Company Termination Fee becomes payable payment pursuant to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b8.03(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If Each of the parties hereto acknowledges that the agreements contained in this Section 8.03 are an integral part of the Transactions, and that without these agreements, the other parties hereto would not enter into this Agreement and each other Transaction Document to which it is a party. Accordingly, if Company or Parent, as the case may be, fails to timely promptly pay an any amount due pursuant to this Section 8.38.03, and, in order to obtain payment of such amount, Parent or Company, as the Company case may be, commences an Action which results in a final, non-appealable order against the other requiring the payment set forth in this Section 8.03, such paying party shall pay Parent or cause to be paid to the other party, as applicable, its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) incurred in connection with such Action, together with interest on such due and unpaid amount pursuant to this Section 8.03 at the rate of (i) the prime rate as published in The Wall Street Journal in effect on the date such payment amount was required to be made paid plus 3(ii) 2% per annum through the date such payment is was actually received.
(d) The parties acknowledge that Subject in all respects to Section 8.02, Company’s injunction, specific performance and equitable relief rights and related rights set forth in Section 9.12 and Section 8.03(c), in the agreements contained event the Parent Termination Fee is paid to Company in this circumstances under which the Parent Termination Fee is payable pursuant to Section 8.3 are an integral part 8.03(a), payment of the transactions contemplated by Parent Termination Fee (which, for the avoidance of doubt, shall be payable to Company solely in the circumstances described in Section 8.03(a)) shall be the sole and exclusive remedy (whether at Law or in equity, whether in contract or in tort or otherwise) of Company and its Subsidiaries against Parent, Merger Sub or any of their respective former, current or future general or limited partners, stockholders, financing sources (including the Debt Financing Sources), managers, members, directors, officers or Affiliates (collectively, the “Parent Related Parties”) for any and all losses, damages, fees, costs and expenses suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this Agreement or the Transactions, and thatupon payment of such amount, without these agreementsnone of the Parent Related Parties shall have any further Liability relating to or arising out of this Agreement or the Transactions (other than claims for Fraud or willful and material breach by any party hereto of this Agreement or any other Transaction Document).
(e) Subject in all respects to Section 8.02, Parent’s injunction, specific performance and equitable relief rights and related rights set forth in Section 9.12 and Section 8.03(c), in the parties would not enter into event the Company Termination Fee is paid to Parent in circumstances for which the Company Termination Fee is payable pursuant to Section 8.03(b), payment of the Company Termination Fee (which, for the avoidance of doubt, shall be payable to Company solely in the circumstances described in Section 8.03(b)) shall be the sole and exclusive remedy (whether at Law or in equity, whether in contract or in tort or otherwise) of Parent, Merger Sub and the Parent Related Parties against Company and its Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates (collectively, “Company Related Parties”) for any and all losses, damages, fees, costs and expenses suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this AgreementAgreement or the Transactions, and upon payment of such amount none of the Company Related Parties shall have any further Liability relating to or arising out of this Agreement or the Transactions (other than claims for Fraud or willful and material breach by any party hereto of this Agreement or any other Transaction Document).
Appears in 1 contract
Termination Fees. Any provision in this Agreement to the contrary notwithstanding,
(a) [Reserved].
(b) In the event that:
that (i) (1A) This Seller or Buyer shall have validly terminated this Agreement pursuant to Section 7.1(b) or 7.1(c) (and, in the case of termination pursuant to Section 7.1(b) due to the fact that the Financing is not available to Buyer, such failure is for reasons other than a breach by Seller or the Company of the Transaction Documents); (B) Seller shall have validly terminated this Agreement pursuant to Section 7.1(d) or 7.1(g) (and, in the case of termination pursuant to Section 7.1(g) due to the fact that the Financing is not available to Buyer, such failure is for reasons other than a breach by Seller or the Company of the Transaction Documents); (C) this Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] 7.1(f); or (zD) Seller or Offeror (as defined in the Tender Offer Agreement) shall have validly terminated the Tender Offer Agreement pursuant to Section 8.1(d)(ii6.02(a) [Company Breach of Reps or 6.02(b) thereof; or (E) Seller shall have validly terminated the Tender Offer Agreement pursuant to Section 6.04(a) or 6.04(c) thereof; and Warranties or Covenants]in any such case Buyer, (2) the Company Offeror or any other Person shall have publicly disclosed or announced of their Affiliates has committed a Company Alternative Proposal made on or after Willful Breach that resulted in the date of this Agreement but prior facts giving rise to the earlier of (x) the Company Meeting and (y) the such termination of this Agreement in or the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such terminationTender Offer Agreement, any transaction constituting any Company Alternative Proposal is consummated as applicable, Buyer shall pay or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed cause to be references paid to “50% Seller a reverse termination fee of $175,000,000 in cash; or more”;
(ii) The Company Seller shall have validly terminated this Agreement pursuant to Section 8.1(c)(ii7.1(d) [or 7.1(g) (and, in the case of termination pursuant to Section 7.1(g) due to the fact that the Financing is not available to Buyer, such failure is for reasons other than a breach by Seller or the Company Superior Proposal];
of the Transaction Documents) under any circumstances other than those specified in clause (iii) Parent i), or this Agreement shall have been terminated this pursuant to Section 7.1(f) as a result of the termination of the Tender Offer Agreement pursuant to Section 8.1(d)(i6.04(a) [Company Change of Recommendation]; or
(ivor 6.04(c) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) thereof under any circumstances other than those specified in the case of clause (i) above), upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, Buyer shall pay (or cause to be paidpaid to Seller a reverse termination fee of $75,000,000 in cash (each such fee in clauses (i) Parent and (or one or more of its designees) ii), the Company “Buyer Termination Fee; (B) in the case of clause (ii) above”), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available same-day funds to one or more accounts designated by ParentSeller, such payment to be made no later than three Business Days after such termination; provided, however, that it being understood is expressly acknowledged and agreed by the parties that in no event shall the Company Buyer be required to pay the Company Termination Fee or the No Vote Buyer Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Feeoccasion. Following receipt by Parent (or one or more of its designees) Seller of the Company Termination Fee or the No Vote applicable Buyer Termination Fee in accordance with this Section 8.3(b)7.3, the Company Buyer shall have no further liability with respect to this Agreement or the transactions contemplated herein hereby to Parent Seller or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeCompany.
(cb) If The parties acknowledge that the Company agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, the parties would not have entered into this Agreement; accordingly, if Buyer fails to timely pay an amount due pursuant to this Section 8.37.3, the Company defaulting party shall pay Parent the non-defaulting party interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received.
(dc) The parties acknowledge Notwithstanding anything to the contrary in this Agreement, in the event Buyer fails to effect the Closing (including where such failure to effect the Closing is solely due to the fact that the agreements contained Debt Financing is not available to the Buyer) or otherwise breaches this Agreement, then, except for an order of specific performance as and only to the extent expressly permitted by Section 8.5 or any remedy available at law or equity with respect to a covenant that, by its terms, is to be performed following the Closing, the Equity Commitment Letters, and/or the Sponsor Guarantee, Seller’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any former, current and future equity holders, controlling persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of the Sponsor, Buyer, Debt Financing Sources or Equity Investors or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing (each, a “Buyer Related Party,” and collectively, “Buyer Related Parties”) in respect of this Agreement, any Contract or agreement executed in connection herewith (including the Debt Commitment Letters and the Equity Commitment Letters) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and collect hereunder, (i) the applicable Buyer Termination Fee; (ii) any amount due pursuant to the final sentence of Section 8.3 are an integral part 5.8(b); and (iii) any interest payable pursuant to Section 7.3(b), and upon payment of all such amounts, no Buyer Related Party shall have any further liability or obligation relating to or arising out of this Agreement, any contract or agreement executed in connection herewith (including the Debt Commitment Letters, the Equity Commitment Letters and the Sponsor Guarantee) or any of the transactions contemplated hereby or thereby.
(d) Notwithstanding anything to the contrary in this Agreement, in the event Seller fails to effect the Closing (including where such failure to effect the Closing is solely due to the fact that the Refinancing is not available to the Seller) or otherwise breaches this Agreement, then, except for (x) an order of specific performance as and only to the extent expressly permitted by Section 8.5 or, in lieu of specific performance, (y) any remedy for damages in the case of a breach of this Agreement in circumstances in which the Company Termination Fee would not be payable under the Tender Offer Agreement and Closing does not occur, or (z) any remedy available at law or equity with respect to a covenant that, without these agreementsby its terms, is to be performed following the parties would not enter into Closing, Buyer’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any former, current and future equity holders, controlling persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of Seller or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing (each, a “Seller Related Party,” and collectively, “Seller Related Parties”) in respect of this Agreement, any Contract or agreement executed in connection herewith (including the Refinancing Commitment Letters) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and the Tender Offer Agreement in accordance with its terms and collect thereunder (i) the Company Termination Fee, and (ii) any interest payable pursuant thereto, and upon payment of all such amounts or if no such amounts are payable, no Seller Related Party shall have any further liability or obligation relating to or arising out of this Agreement, any contract or agreement executed in connection herewith (including the Refinancing Commitment Letters) or any of the transactions contemplated hereby or thereby.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement after the date hereof, a bona fide Alternative Proposal shall have been made known to Parent or shall have been made directly to its shareholders generally or any person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Alternative Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by Parent or the Company pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) so long as the Company or any other Person shall have Alternative Proposal was publicly disclosed prior to, and had not been withdrawn at, the time of the Parent Shareholder Meeting) or announced Section 8.1(d)(i), and (C) Parent consummates a Company transaction with respect to an Alternative Proposal made on or after the date of this Agreement but prior to the earlier of within six (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (126) months of such termination, the date this Agreement is terminated or enters into a definitive agreement with respect to any transaction constituting any Company Alternative Proposal within six (6) months of the date this Agreement is consummated or an agreement providing for any Company terminated and consummates a transaction with respect to such Alternative Proposal is executed; provided, that, (provided that for purposes of this clause (iSection 8.2(a)(i), the references to “20% or more%” in the definition of “Company Alternative Proposal” Proposal shall be deemed to be references to “50% or more%”;); or
(ii) The Company shall have terminated this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii) [Company Superior Proposal];); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii8.1(d)(ii); then in any such event under clause (i), (ii) [Failure or (iii) of this Section 8.2(a), Parent shall pay to Obtain Company Stockholder Approval]; then, the Company shallthe Termination Fee, it being understood that in no event shall Parent be required to pay the Termination Fee on more than one occasion.
(Ab) in the case of Any payment required to be made pursuant to clause (i) above, upon of Section 8.2(a) shall be made to the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) promptly following the consummation of the transaction referred to therein (and in any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within event not later than two (2) Business Days after delivery to Parent of such termination, pay (or cause notice of demand for payment); any payment required to be paidmade pursuant to clause (ii) Parent (or one or more of its designeesSection 8.2(a) shall be made to the Company Termination Feeconcurrently with the termination of this Agreement by Parent pursuant to Section 8.1(c)(ii); and (D) in the case of any payment required to be made pursuant to clause (iviii) above, within of Section 8.2(a) shall be made to the Company promptly following termination of this Agreement by the Company pursuant to Section 8.1(d)(ii) (and in any event not later than two (2) Business Days after delivery to Parent of notice of demand for payment), and such termination, pay (or cause to payment shall be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case made by wire transfer of immediately available funds to one or more accounts an account to be designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeCompany.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (PLC Systems Inc)
Termination Fees. (a) [Reserved]In the event of a termination of this Agreement under Section 8.1(g) or Section 8.1(h), then the Company shall pay a non-refundable fee to FROZEN, LLC or as directed by FROZEN, LLC equal to $21,000,000 (such amount, the “Termination Fee”) (provided, that if such termination is by the Company pursuant to Section 8.1(h) prior to the Solicitation Period End-Date in order to enter into a definitive agreement with respect to a Superior Proposal prior to the Solicitation Period End-Date, then, in such case, such payment shall instead be in the amount equal to the sum of (x) $7,000,000 plus (y) the amount of any filing fees relating to the HSR Act paid by the Parents pursuant to Section 5.2 prior to the date of such termination), as promptly as reasonably practicable (and, in any event, within two Business Days following such termination, or in the case of termination pursuant to Section 8.1(h), contemporaneously with such termination), payable by wire transfer of immediately available funds to an account designated by FROZEN, LLC.
(b) In the event that this Agreement is terminated by the Parents or the Company pursuant to Section 8.1(d), then the Company shall reimburse the Parents for all Expenses incurred by or on behalf of the Parents or their Affiliates or their prospective financing sources as of the time of such reimbursement up to a maximum of $7,000,000, as promptly as reasonably practicable following delivery of supporting documentation thereof (and, in any event, within two Business Days following receipt of such documentation), payable by wire transfer of immediately available funds to an account designated by the Parents; provided that:, the payment by the Company of such Expenses pursuant to this Section 8.3(b) shall not relieve the Company of any obligation to pay the Termination Fee pursuant to Section 8.3(c).
(ic) In the event that (1A) This following the occurrence of an event described in following clause this Agreement shall have been is terminated by the Parents or the Company pursuant to (xSection 8.1(b) or Section 8.1(b)(i8.1(d) [End Date], (yor by the Parents pursuant to Section 8.1(e) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3B) within twelve (12) months of any such termination, the Company consummates any transaction constituting Takeover Proposal, or enters into a definitive agreement in respect of any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; providedTakeover Proposal, that, for purposes of this clause (i), then the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pay to the Parents, or as directed by the Parents, on the date of entry into the agreement in respect of the Takeover Proposal, or, if earlier, consummation of such Takeover Proposal, as applicable, an amount equal to the Termination Fee minus the amount of any Expenses previously paid by the Company pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent 8.3(b). Payment of such amount shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated be made, as directed by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; thenParents, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedfunds.
(d) The parties acknowledge that If the agreements contained in Company terminates this Agreement pursuant to Section 8.1(i), then Merger Sub shall pay the Termination Fee (such payment to the Company pursuant to this Section 8.3 are an integral part of 8.3(d) being hereinafter referred to as the transactions contemplated “Reverse Termination Fee”) to the Company or as directed by this Agreement and thatthe Company as promptly as reasonably practicable (and, without these agreementsin any event, the parties would not enter into this Agreementwithin two Business Days following such termination).
Appears in 1 contract
Termination Fees. (a) [Reserved]In the event that this Agreement is terminated by Parent pursuant to Section 7.1(d) or by the Company pursuant to Section 7.1(h), then the Company shall pay to Parent the Company Termination Fee. The Company Termination Fee payable pursuant to this Section 7.3(a) shall be paid no later than the second (2nd) Business Day following termination pursuant to Section 7.1(d) and concurrently with any termination pursuant to Section 7.1(h).
(b) In the event that:
If (i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement Date but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in accordance with its terms, an Acquisition Proposal shall have become publicly known or delivered to the circumstances set forth Company Board and not withdrawn (publicly, if such Acquisition Proposal became publicly known), (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section 7.1(b) (but in clause the case of such a termination by the Company, only if at such time Parent would not have been prohibited from terminating this Agreement pursuant to the second proviso to Section 7.1(b)), or (i)(1B) above by Parent pursuant to Section 7.1(e) for a willful and material breach of any covenant or agreement in this Agreement on the part of the Company, which willful and material breach has been a principal cause of or resulted in the failure of the Offer to be consummated, or (C) by Parent or the Company pursuant to Section 7.1(i) (but in the case of such a termination by the Company, only if at such time Parent would not have been prohibited from terminating this Agreement pursuant to the proviso to Section 7.1(i)), and (3iii) within twelve (12) months of after such termination, any transaction constituting any termination the Company Alternative Proposal is consummated consummates an Acquisition Transaction or enters into an agreement providing for any an Acquisition Transaction which Acquisition Transaction is subsequently consummated (whether during or after such twelve (12) month period), then the Company Alternative Proposal shall pay to Parent the Company Termination Fee by wire transfer of same-day funds on the date such transaction is executedconsummated; provided, that, provided that solely for purposes of this clause (iSection 7.3(b), the all references to “20% or more” in the definition of “Company Alternative ProposalAcquisition Transaction” shall be deemed to be references to “50% or more”;%.
(iic) The In the event of a Specified Termination, then Parent shall pay to the Company $33,420,000 (the “Reverse Termination Fee”) in immediately available funds within five Business Days thereafter; provided that the Company shall have terminated not be entitled to receive the Reverse Termination Fee if the Company’s breach of this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];shall have been a principal cause of such Specified Termination.
(iiid) Parent All payments under this Section 7.3 shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case made by wire transfer of immediately available funds to one an account designated in writing by the party to whom payment is owed.
(e) Except in the case of Fraud or more accounts designated a willful and material breach of this Agreement, if this Agreement is terminated pursuant to Section 7.1, (i) Parent’s receipt of the Company Termination Fee, to the extent owed pursuant to Section 7.3(b), and any amounts owed pursuant to Section 7.3(g) will be the sole and exclusive remedy of (x) Parent and Merger Sub and (y) the former, current and future controlling persons, directors, officers, employees, agents, attorneys, Affiliates (other than Parent or Merger Sub) and permitted assignees of each of Parent and Merger Sub (the Persons in clauses (x) and (y) collectively, the “Parent Related Parties”) against any of (A) the Company and its Affiliates; and (B) the former, current and future controlling persons, directors, officers, employees, agents, attorneys, Affiliates and permitted assignees of each of the Company and its Affiliates (the Persons in clauses (A) and (B) collectively, the “Company Related Parties”), and (ii) the Company’s receipt of the Reverse Termination Fee, to the extent owed pursuant to Section 7.3(c), and any amounts owed pursuant to Section 7.3(g) will be the sole and exclusive remedy of the Company Related Parties against any of the Parent Related Parties, in either case, in respect of this Agreement, the Transactions, any agreement executed in connection herewith and the transactions contemplated hereby and thereby, the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure.
(f) The parties acknowledge that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by Parent; it being understood that this Agreement and constitute liquidated damages and not a penalty, and that, without these agreements, the parties would not have entered into this Agreement. For the avoidance of doubt, in no event shall the Company be required to pay the Company Termination Fee or Parent be required to pay the No Vote Reverse Termination Fee Fee, as applicable, on more than one occasion andoccasion, in the event whether or not the Company Termination Fee becomes or the Reverse Termination Fee, as applicable, may be payable to under one or more provisions hereof. In the event Parent following payment of shall receive the No Vote Company Termination Fee, or the Company shall receive the Reverse Termination Fee, the amount of the No Vote Termination Fee actually paid receipt thereof shall be credited against deemed to be liquidated damages to reasonably compensate the receiving party for the disposition of its rights under this Agreement in the circumstances in which such amount is due and payable, which amount would otherwise be impossible to calculate with precision. Upon payment of the Company Termination Fee, (A) none of the Company Related Parties will have any further liability or obligation to any of the Parent Related Parties relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis of such termination; and (B) none of the Parent Related Parties will be entitled to bring or maintain any Legal Proceeding against any Company Related Party arising out of this Agreement, the Transactions, any agreement executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis for such termination; provided, however, that payment of the Company Termination Fee will not be liquidated damages in the case of Fraud or a willful and material breach of this Agreement by the Company. Following receipt Upon payment of the Reverse Termination Fee, (A) none of the Parent Related Parties will have any further liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis of such termination; and (B) none of the Company Related Parties will be entitled to bring or maintain any Legal Proceeding against any Parent Related Party arising out of this Agreement, the Transactions, any agreement executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis for such termination; provided, however, that payment of the Reverse Termination Fee will not be liquidated damages in the case of Fraud or a willful and material breach of this Agreement by Merger Sub or Parent.
(g) If the Company fails to pay the Company Termination Fee, or Parent fails to pay the Reverse Termination Fee, when due and payable pursuant to this Section 7.3, and, in order to obtain such payment, Parent or the Company, as applicable, commences an action or other proceeding that results in an award against the Company for such Company Termination Fee, or against Parent for such Reverse Termination Fee, as applicable, the party owing such award shall pay the other party’s costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such action or one or more of its designees) proceeding, together with interest on the amount of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Reverse Termination Fee, any obligation to pay (or cause as applicable, from the date such payment was required to be paid) an amount equal to made until the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount date of 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 plus 3% per annum through the date such payment is actually receivedmade.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Poseida Therapeutics, Inc.)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of If this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure 7.1(d)(i), prior to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, contemporaneously with and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) shall pay Parent a fee in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds in the amount of $7,700,000 (the "Termination Fee”).
(b) If this Agreement is terminated by Parent pursuant to one or more accounts designated by Parent; it being understood that Section 7.1(e) (other than pursuant to clause (v) thereof), then the Company shall promptly, but in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more later than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach three Business Days after termination of this Agreement or Fraud orAgreement, to pay Parent the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If this Agreement is terminated pursuant to Section 7.1(b)(i) or Section 7.1(e)(v) and (i) at any time on or after the date hereof and prior to such termination a bona fide Acquisition Proposal shall have been made to the Company fails Board or the Company or publicly announced, and (ii) within twelve months after the date of such termination, the Company enters into a definitive acquisition agreement (or other Contract setting forth the material terms of the Acquisition Proposal) with respect to timely pay an amount due pursuant to this Section 8.3any transaction specified in the definition of “Acquisition Proposal” or any such transaction is consummated, then the Company shall pay Parent interest on the Termination Fee no later than three Business Days after such amount at event. For purposes of this Section 7.3(c), references in the prime rate as published in The Wall Street Journal in effect on the date such payment was required definition of “Acquisition Proposal” to “20%” and “80%” shall be made plus 3% per annum through the date such payment is actually receivedreplaced by a “majority.”
(d) The parties acknowledge Company acknowledges that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the parties Parent would not enter have entered into this Agreement; accordingly, if the Company fails to promptly pay any amounts due pursuant to this Section 7.3 and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the Termination Fee, the Company shall pay to Parent Parent’s reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such suit, together with interest on the amounts owed at the prime lending rate prevailing at such time, as published in the Wall Street Journal, plus two percent per annum from the date such amounts were required to be paid until the date actually received by Parent. The Company acknowledges that it is obligated to pay to Parent any amounts due pursuant to this Section 7.3 whether or not the stockholders of the Company have adopted this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Conexant Systems Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1A) This Agreement after the date hereof, a bona fide Alternative Proposal shall have been terminated pursuant made known to (x) Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or shall have been made directly to its stockholders generally or any other Person person shall have publicly disclosed or announced a Company bona fide intention (not subsequently withdrawn) to make an Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (yB) following the termination occurrence of this Agreement an event described in the circumstances set forth in preceding clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (iA), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to (x) Section 8.1(b)(iii7.1(b)(i) [Failure to Obtain and at the time of such termination the Company Stockholder Approval]; thenApproval has not been obtained, (y) Section 7.1(b)(iii) (so long as the Alternative Proposal was publicly disclosed prior to, and had not been withdrawn at least ten (10) days prior to the Company Meeting) or (z) Section 7.1(d)(i), and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal within twelve (12) months of the date this Agreement is terminated (provided that for purposes of this Section 7.2(a)(i), the Company shall, (A) references to “20%” in the case definition of Alternative Proposal shall be deemed to be references to “50%”); or
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii); then in any such event under clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) aboveof this Section 7.2(a), concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company shall pay to Parent a termination fee equal to $176 million in cash (the “Termination Fee; (C) in the case of clause (iii) above”), within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion andoccasion.
(b) Any payment required to be made pursuant to clause (i) of Section 7.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, the transaction referred to therein (and in the any event not later than two (2) Business Days after delivery to the Company Termination Fee becomes payable of notice of demand for payment); any payment required to be made pursuant to clause (ii) of Section 7.2(a) shall be made to Parent promptly following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach termination of this Agreement or Fraud or, by Parent pursuant to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, Section 7.1(d)(ii) (and in any obligation to pay event not later than two (or cause to be paid2) an amount equal Business Days after delivery to the Company Termination Fee less the No Vote Termination Feeof notice of demand for payment), and such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent.
(c) If In the event that the Company fails shall fail to timely pay an amount due the Termination Fee required pursuant to this Section 8.37.2 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. In addition, if the Company shall fail to pay such fee when due, the Company shall also pay to Parent interest on all of Parent’s reasonable costs and expenses (including reasonable attorneys’ fees) in connection with efforts to collect such amount at fee. The Company acknowledges that the prime rate as published in The Wall Street Journal in effect on fees and the date such payment was required to be made plus 3% per annum through other provisions of this Section 7.2 are an integral part of the date such payment is actually receivedMerger and that, without these agreements, Parent would not enter into this Agreement.
(d) The Each of the parties acknowledge hereto acknowledges that the agreements contained in this Section 8.3 7.2 are an integral part of the transactions contemplated by this Agreement and thatthat the Termination Fee is not a penalty, without these agreementsbut rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub 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, the parties which amount would not enter into this Agreementotherwise be impossible to calculate with precision.
Appears in 1 contract
Samples: Merger Agreement (Fiserv Inc)
Termination Fees. (a) [Reserved].
(b) In If, but only if, the event thatAgreement is terminated by:
(i) (1x) This Agreement shall have been terminated either Parent or the Company pursuant to (x) Section 8.1(b)(i) [End Date], (y) or Section 8.1(b)(iii), or by Parent pursuant to Section 8.1(d)(i), Section 8.1(d)(ii)(x), Section 8.1(d)(ii)(z), Section 8.1(d)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in Company (A) receives or has received a Competing Proposal from a Third Party after the circumstances set forth in clause (i)(1) above date hereof, which Competing Proposal becomes publicly known, and (3B) within twelve (12) months of the termination of this Agreement, enters into, agrees to or consummates a transaction regarding such terminationCompeting Proposal or any Competing Proposal, any then the Company shall pay, or cause to be paid, to Parent an amount equal to Two Million Seven Hundred and Fifty Thousand Dollars ($2,750,000) (the “Termination Fee”) and the Parent’s reasonable and documented out-of-pocket fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, such fees and expenses to not exceed Two Million Dollars ($2,000,000), not later than the third (3rd) Business Day following the execution of the agreement relating to such transaction constituting any Company Alternative arising from such Competing Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; (provided, thathowever, that for purposes of this clause (iSection 8.3(a)(i), the references to “twenty percent (20% or more%)” in the definition of “Company Alternative Proposal” Competing Proposal shall be deemed to be references to “fifty percent (50% or more%)”;); or
(ii) The the Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then8.1(d)(ii)(y), then the Company shallshall pay, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid, to Parent the Termination Fee and the Parent’s reasonable and documented out-of-pocket fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, such fees and expenses to not exceed Two Million Dollars ($2,000,000) Parent concurrently with such termination;
(or one or more of its designeesb) Notwithstanding anything to the contrary set forth in this Agreement:
(i) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood parties agree that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion occasion; and
(ii) the parties agree that the Termination Fee shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law.
(c) Notwithstanding anything to the contrary set forth in this Agreement, in the event but subject to Section 9.9, Parent’s right to receive payment from the Company of the Termination Fee becomes payable pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited and Merger Sub against the Company Termination Fee. Following receipt and its subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by Parent (this Agreement to be consummated or one for a breach or more failure to perform hereunder or otherwise, and upon payment of its designees) such amount, none of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company Related Parties shall have no any further liability with respect or obligation relating to or arising out of this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent thereby (except that the Company Termination Fee becomes payable shall also be obligated with respect to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination FeeSection 8.3(d)).
(cd) If Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee 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 transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company fails to timely pay an any amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, the Company such paying party shall pay Parent the other party its costs and Expenses in connection with such suit, together with interest on such amount at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This If this Agreement shall have been terminated pursuant to Sections 7.1(b) (x) provided, that in case of termination pursuant to Section 8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (27.1(b) the Company or any other Person conditions to the Tender Offer in clauses (a) and (e) of Annex A shall be satisfied and the Minimum Condition shall be unsatisfied and at the time of such termination there shall have been publicly disclosed and not withdrawn or announced terminated an ASARCO Takeover Proposal), 7.1(c), 7.1(d), 7.1(e)(i) or 7.1(h) (provided, that in the case of a Company Alternative termination pursuant to 7.1(h), at the time of the ASARCO Shareholders Meeting an ASARCO Takeover Proposal made on shall have been publicly disclosed and not withdrawn or terminated), then ASARCO shall promptly, but (except as otherwise provided in Section 7.1(d)) no event less than two business days after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in Agreement, pay Parent a fee equal to $40 million (the circumstances set forth in clause (i)(1) above "Termination Fee"), payable by wire transfer of same day funds; provided, however, that no ASARCO Termination Fee shall be payable to Parent pursuant to this paragraph unless and (3) until within twelve (12) 18 months of such terminationtermination ASARCO or any of its Subsidiaries enters into any ASARCO Acquisition Agreement or consummates any ASARCO Takeover Proposal, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for except as provided otherwise in Section 7.1(d). For the purposes of this clause (i)the foregoing proviso the terms "ASARCO Acquisition Agreement" and "ASARCO Takeover Proposal" shall have the meanings assigned to such terms in Section 5.7, except that the references reference to “20% the "acquisition or more” purchase of a business or shares of any class of equity securities of ASARCO or any of its Subsidiaries" in the definition of “Company Alternative "ASARCO Takeover Proposal” " in Section 5.7 shall be deemed to be references a reference to “50the "acquisition or purchase of a business that constitutes 20% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of the net revenues, net income or the assets of ASARCO and its designeesSubsidiaries, taken as a whole, or 20% of any class of equity securities of ASARCO or any of its Subsidiaries," in which event the Termination Fee shall be payable upon the first to occur of such events. ASARCO acknowledges that the agreements contained in this Section 7.4(a) are an integral part of the Company Termination Fee; (B) in the case of clause (ii) above, concurrently withtransactions contemplated by this Agreement, and as a condition to the effectiveness of such terminationthat, pay (or cause to be paid) without these agreements, Parent (or one or more of its designees) the Company Termination Feewould not enter into this Agreement; (C) in the case of clause (iii) aboveaccordingly, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required if ASARCO fails promptly to pay the Company ASARCO Termination Fee or the No Vote Termination Fee on more than one occasion Fee, and, in order to obtain such payment, Parent commences a suit which results in a judgment against ASARCO for the event the Company Termination Fee becomes payable to Parent following payment of the No Vote ASARCO Termination Fee, ASARCO shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the No Vote ASARCO Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount equal to the Company Termination Fee less the No Vote Termination Fee.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually receivedmade.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Asarco Inc)
Termination Fees. (a) [Reserved].
(b) In the event that:
(i) (1) This If this Agreement shall have been is terminated pursuant to (xa) Section 8.1(b)(i7.1(d) [End Date], or (yb) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps 7.1(e), and Warranties or Covenants], (2) if the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of is not at that time entitled to terminate this Agreement but prior to the earlier by reason of (xSection 7.1(b) or 7.1(c), then the Company Meeting shall promptly (and (y) the termination in any event within two days of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii) [Company Superior Proposal];
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated receipt by the Company or Parent pursuant of written notice from the Parent) pay to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts an account designated by the Parent) concurrently with the execution of a definitive agreement with respect to any Alternative Proposal, a termination fee of $15,000,000 plus an amount equal to documented fees and expenses incurred by or on behalf of the Parent and its affiliates and investors in connection with this Agreement and the Transactions up to an aggregate maximum amount of $2,500,000; it being understood PROVIDED, HOWEVER, that in no event shall the Company shall not be required obligated to pay such fee to the Company Termination Fee or Parent if this Agreement is terminated pursuant to Section 7.1(d) unless (a)(i) at the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) time of the Company Termination Fee Meeting, the Company has received an Alternative Proposal (a "PENDING PROPOSAL") or (ii) prior to the No Vote Termination Fee in accordance with termination of this Section 8.3(b), Agreement the Board of Directors of the Company shall have no further liability withdrawn, or modified in a manner adverse to the Parent, its approval or recommendation of the Merger and the other Transactions, and (b) within one year after the termination of this Agreement, the Company enters into a definitive agreement or otherwise consummates with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates any person such or any other PersonAlternative Proposal, other than in respect and, PROVIDED, FURTHER, that if such termination fee becomes payable as a result of Willful a termination pursuant to Section 7.1(d), then such termination fee shall be paid promptly following the earlier of the execution of such definitive agreement providing for an Alternative Proposal and Material Breach the consummation of an Alternative Proposal, as the case may be.
(b) If (i) this Agreement is terminated pursuant to (i) Section 7.1(b) and (ii) Parent is not at that time entitled to terminate this Agreement by reason of Section 7.1(c) or Fraud or7.1(d), to and (iii) Parent has not received an Acceptable FCC Order, and (iv) the extent conditions set forth in Sections 6.1(c) and 6.2(a), (b), (c) and (e) have been, or if the Company Termination Fee becomes payable to FCC Order had been obtained, would have been, otherwise satisfied, then Parent following payment shall promptly (and in any event within two days of receipt by Parent of written notice from the No Vote Termination Fee, any obligation to Company) pay (or cause to be paid) an amount equal to the Company Termination Fee less (by wire transfer of immediately available funds to an account designated by the No Vote Termination Fee.
(cCompany) If a termination fee of $17,500,000; PROVIDED, HOWEVER, that Parent shall not be obligated to pay such fee to the Company fails if the sole reason that Parent and Sub have failed to timely pay an amount obtain the Acceptable FCC Order is due pursuant to this Section 8.3changes, after the Company shall pay Parent interest on such amount at date hereof, in the prime rate as published in The Wall Street Journal Communications Act or the rules and regulations of the FCC, in effect on as of the date such payment was required hereof (except those which have been proposed in formal rulemaking proceedings and have been subject to be made plus 3% per annum through public comment prior to the date such payment is actually receivedhereof).
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fees. (a) [Reserved].
(b) In the event that:
that (x) this Agreement is terminated (i) (1) This Agreement shall have been terminated by Parent pursuant to (xSection 9.1(b), Section 9.1(c) or Section 8.1(b)(i9.1(d) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (zii) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) by the Company pursuant to Section 9.1(b) or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or Section 9.1(c) after the date that is twelve (12) months following the date of this Agreement (provided, that if on such date Parent remains actively engaged in a good faith effort to satisfy the HSR closing condition, including, but prior not limited to, through discussion and negotiation with the DOJ or through any stage of litigation, such period shall be extended by up to a maximum of three (3) additional months (the earlier of (x“Extension Period”) and the Company Meeting shall have no ability to terminate this Agreement pursuant to this Section 9.5 during such Extension Period), and (y) as of the termination date of this Agreement in termination, (i) the circumstances condition set forth in clause (i)(1Section 6.1(d) above has not been satisfied and (3ii) all conditions set forth in Section 6.2 (other than Section 6.2(o)) shall have been satisfied or waived, Parent shall pay to the Company (or its designee), within twelve (12) months one Business Day of such termination, any transaction constituting any a fee equal to $30,000,000 (less the aggregate amount of all Monthly Payments previously paid to the Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) The Company shall have terminated this Agreement pursuant to Section 8.1(c)(ii5.12(d) [Company Superior Proposal];
(iiihereof) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one an account or more accounts designated in writing by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in Company. In the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt that this Agreement is terminated by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this pursuant to Section 8.3(b9.1(f), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein pay to Parent (or its Subsidiaries or Affiliates or any other Persondesignee), other than in respect within one Business Day of Willful and Material Breach of this Agreement or Fraud orsuch termination, to the extent the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, any obligation to pay (or cause to be paid) an amount a fee equal to the Company Termination Fee less the No Vote Termination Fee$30,000,000 by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.
(c) If the Company fails to timely pay an amount due pursuant to this Section 8.3, the Company shall pay Parent interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
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