Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses. (ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses; (iii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve (12) months of such termination, the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses; (iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses; and (v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000.
Appears in 2 contracts
Samples: Merger Agreement (Tti Team Telecom International LTD), Merger Agreement (Tti Team Telecom International LTD)
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) (A) (i) following a Competing Proposal with respect to the Company shall have been publicly made, proposed or disclosed and not withdrawn after the date hereof of this Agreement and prior to the Shareholders Meeting (or prior to the termination of this Agreement, Agreement if there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder no Shareholders Meeting), (B) at a time when the condition in the preceding subclause (A) is satisfied, this Agreement is terminated (x) by Parent the Company or HoldCo pursuant to Section 9.1(g) or (y) by the Company pursuant to Section 8.1(b)(iSection 9.1(c), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve (12) months of the date of such termination, the Company or any of its Subsidiaries enters into a definitive agreement with such third party (or any Affiliate thereof) to consummateeffect, or consummatesconsummates the transactions contemplated by, such Alternative Acquisition a Competing Proposal (as may be amended or supplementedprovided, that for purposes of this clause (C), the references to “20%” in the definition of Competing Proposal shall be deemed to be references to 50%);
(ii) this Agreement is terminated by HoldCo pursuant to Section 9.1(b) or Section 9.1(d); or
(iii) this Agreement is terminated by the Company pursuant to Section 9.1(e); then the Company shallshall pay, concurrently with or caused to be paid, to HoldCo or its designees an amount in cash equal to US$31,500,000 (the consummation “Company Termination Fee”) by wire transfer of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
same day funds as promptly as possible (ivbut in any event (x) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within least two (2) Business Days prior to and as a condition of the consummation by the Company of the transactions contemplated by such terminationCompeting Proposal or entry by the Company into the definitive agreement in connection with such Competing Proposal in the case of a termination referred to in clause (i) above, (y) within five (5) Business Days after such termination in the Termination Fee case of a termination pursuant to clause (ii) above, and the Parent Expenses; and(z) prior to or concurrently with such termination in case of a termination pursuant to clause (iii) above).
(vb) In the event that this Agreement is terminated by the Company terminates pursuant to Section 9.1(b) or Section 9.1(h), then HoldCo shall pay, or cause to be paid, to the Company or its designees an amount in cash equal to US$63,000,000 (the “HoldCo Termination Fee”) by wire transfer of same day funds as promptly as possible (but in any event within five (5) Business Days after such termination).
(c) In no event shall this Section 9.3 (i) require the Company to pay an aggregate amount in excess of the Company Termination Fee, or (ii) require HoldCo to pay an aggregate amount in excess of the HoldCo Termination Fee, in each case except as set forth in Section 9.3(d). In no event shall the Company be required to pay the Company Termination Fee more than once. In no event shall HoldCo be required to pay the HoldCo Termination Fee more than once.
(d) If either the Company or HoldCo fails to pay any amounts due to the other Party under this Section 9.3 on the dates specified, then the defaulting Party shall pay all reasonable and documented costs and expenses (including legal fees and expenses) incurred by such other Party in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest thereon on such unpaid amounts at the prime lending rate prevailing at such time, as published in the Wall Street Journal Table of Money Rates on such date, from the date such amounts were required to be paid until the date actually received by such other Party. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.
(e) Each Party acknowledges that the agreements contained in this Section 9.3 are an integral part of the Transactions and that the Company Termination Fee and HoldCo Termination Fee are not a penalty, but rather are liquidated damages in a reasonable amount that will compensate the Parent Parties in the circumstances in which the Company Termination Fee is payable by the Company or the Company in circumstances in which the HoldCo Termination Fee is payable by HoldCo, in each case, for the efforts and resources expended and opportunities foregone while negotiating this Agreement pursuant and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to Section 8.1(b)(iicalculate with precision.
(f) Subject to Section 10.10, in the event that any Parent Party fails to effect the Closing for any reason or no reason or they otherwise breach this Agreement (whether willfully, intentionally, unintentionally or otherwise) or otherwise fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), the Company’s right to terminate this Agreement and receive the HoldCo Termination Fee pursuant to Section 9.3 and if applicable, the costs and expenses of the Company shall pay pursuant to ParentSection 9.3(d), within ten (10) Business Days the guarantee of such terminationobligations pursuant to the Limited Guarantees (subject to their terms, conditions and limitations) and the Company’s right to seek specific performance in accordance with Section 10.10 shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company or any of its Subsidiaries and any of their respective Affiliates, Representatives, members, managers, or partners (collectively, the “Company Group”) against (i) the Parent Expenses but Parties and the Sponsor, (ii) the former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interest, management companies, portfolio companies, incorporators, controlling Persons, directors, officers, employees, agents, advisors, attorneys, representatives, members, managers, general or limited partners, stockholders, shareholders, successors, assignees or Affiliates of the Parent Parties or the Sponsor, (iii) any lender or prospective lender, lead arranger, arranger, agent or Representative of or to the Parent Parties or the Sponsor, or (iv) any former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interest, management companies, portfolio companies, incorporators, controlling Persons, directors, officers, employees, agents, advisors, attorneys, representatives, members, managers, general or limited partners, stockholders, shareholders, successors, assignees or Affiliates of any of the foregoing (clauses (i)−(iv), collectively, the “HoldCo Group”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) or failure to perform hereunder (whether willfully, intentionally, unintentionally or otherwise) or other failure of the Merger or the other Transactions to be consummated (whether willfully, intentionally, unintentionally or otherwise). For the avoidance of doubt, neither HoldCo nor any other member of the HoldCo Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters, the Debt Commitment Letters and the Limited Guarantees) other than the payment of the HoldCo Termination Fee pursuant to Section 9.3(b), the costs and expenses pursuant to Section 9.3(d) and any amounts pursuant to Section 7.5(g), and in no more event shall any member of the Company Group seek, or permit to be sought, on behalf of any member of the Company Group, any monetary damages from any member of the HoldCo Group in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters, the Debt Commitment Letters and the Limited Guarantees), other than US$200,000(without duplication) from any Parent Party to the extent provided in Section 9.3(b), Section 9.3(d) and Section 7.5(g) or the Guarantors to the extent provided in the relevant Limited Guarantee. Notwithstanding anything to the contrary herein and for the avoidance of doubt, none of the foregoing in this paragraph shall in any way restrict the Company’s right to equitable relief pursuant to Section 10.10.
(g) Subject to Section 10.10, HoldCo’s right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 9.3 and if applicable, the costs and expenses of HoldCo pursuant to Section 9.3(d) and HoldCo’s right to seek specific performance in accordance with Section 10.10, shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any member of the HoldCo Group against any member of the Company Group for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) or failure to perform hereunder (whether willfully, intentionally, unintentionally or otherwise) or other failure of the Merger to be consummated (whether willfully, intentionally, unintentionally or otherwise). Neither the Company nor any other member of the Company Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions other than the payment by the Company of the Company Termination Fee pursuant to Section 9.3(a) and the costs and expenses pursuant to Section 9.3(d), and in no event shall any of the Parent Parties or any other member of the HoldCo Group seek, or permit to be sought, on behalf of any member of the HoldCo Group, any monetary damages from any member of the Company Group in connection with this Agreement or any of the Transactions, other than (without duplication) from the Company to the extent provided in Section 9.3(a) and Section 9.3(d).
Appears in 2 contracts
Samples: Merger Agreement (New Frontier Public Holding Ltd.), Merger Agreement (New Frontier Health Corp)
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) (A) (i) following after the date hereof and prior hereof, an Alternative Proposal shall have been made known to the Company’s stockholders generally or, in the case of a termination of this Agreementby Parent pursuant to Section 8.1(e), there has been disclosure publicly otherwise made known or communicated to any member of senior management or the Board of Directors or any officer of the Company Company, and not withdrawn and (B) following the occurrence of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth event described in the definition of Acquisition Proposalpreceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(i) (the "Alternative Acquisition") andor, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time Offer Closing, by Parent pursuant to Section 8.1(e), and (C) the Company enters into a definitive agreement with respect to, or consummates any transaction contemplated by, any Alternative Proposal within twelve (12) months of the Company Shareholder Meeting, date this Agreement is terminated;
(Bii) this Agreement is terminated by Parent or the Company Company, as applicable, pursuant to Section 8.1(b)(iSection 8.1(f), Section 8.1(b)(iiSection 8.1(g) or Section 8.1(b)(ivSection 8.1(h); or
(iii) this Agreement (A) is terminated by Parent pursuant to Section 8.1(i), but there shall not have been any Alternative Proposal made known to the Company’s stockholders generally or otherwise made known or communicated to senior management or the Board of Directors of the Company, in each case prior to such termination by Parent pursuant to Section 8.1(i) (but after the date hereof), and (C) within twelve (12) months of such termination, the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummaterespect to, or consummatesconsummates any transaction contemplated by, any Alternative Proposal within twelve (12) months of the date this Agreement is terminated or (B) is terminated by Parent pursuant to Section 8.1(i) and prior to such termination by Parent pursuant to Section 8.1(i) (but after the date hereof) an Alternative Acquisition (as may be amended Proposal shall have been made known to the Company’s stockholders generally or supplemented), then otherwise made known or communicated to senior management or the Board of Directors of the Company; the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent a termination fee of $65,000,000 in cash (the “Termination Fee”), it being understood that in no event shall the Company be required to pay the Termination Fee and on more than one occasion; provided, however, that for all purposes of this Section 8.2(a), all references to “15%” in the Parent Expenses;definition of “Alternative Proposal” shall be deemed to refer to “50%” instead.
(ivb) In the event that Parent or the Company terminates this Agreement pursuant Any payment required to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee be made pursuant to clause (i) above or clause (iii)(A) of Section 8.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or consummation of any transaction contemplated by, any Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); and any payment required to be made pursuant to clause (ii) or clause (iii)(B) of Section 8.2(a) shall be made to Parent promptly following termination of this Agreement (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); provided that in the event that any payment is required to be made pursuant to clause (ii) of Section 8.2(a) in connection with a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to of this Agreement by the Company notice with respect pursuant to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachSection 8.1(h), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and to Parent at the Parent Expenses; andsame time as such termination. Any such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent.
(vc) The Company and Parent acknowledge that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither party would enter into this Agreement. The amounts payable by the Company pursuant to this Section 8.2 constitute liquidated damages and not a penalty and shall be the sole monetary remedy of Parent in the event of termination of this Agreement on the bases specified in this Section 8.2. In the event that the Company terminates fails to pay when due any amounts payable under this Agreement pursuant to Section 8.1(b)(ii)Section 8.2, then (1) the Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with the collection of such overdue amount, and (2) the Company shall pay to Parent, within ten Parent interest on such overdue amount (10for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) Business Days of at a rate per annum equal to the prime rate published in The Wall Street Journal on the date such termination, the Parent Expenses but no more than US$200,000payment was required to be made plus three percent (3%).
Appears in 2 contracts
Samples: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Termination Fees. (ia) In the event that Parent terminates this Agreement is terminated by Parent pursuant to Section 8.1(dSection 9.1(c)(i) or Section 8.1(ein the event that this Agreement is terminated by the Company pursuant to Section 9.1(d)(iii), then, in each case, the Company shall pay to ParentParent (or its designee), within two by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (2the “Company Termination Fee”) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following the date hereof and at or prior to the termination of this AgreementAgreement in the case of a termination pursuant to Section 9.1(d)(iii) or as promptly as practicable (and, there has been disclosure publicly or in any event, within two Business Days following such termination) in the case of a termination pursuant to any member of Section 9.1(c)(i).
(b) In the Board of Directors or any officer of event that this Agreement is terminated by the Company pursuant to Section 9.1(d)(i), then Parent shall pay to the Company (or its designee), by wire transfer of an Acquisition Proposal (for purposes of this subsectionimmediately available funds, substituting 50% for the 10% threshold set forth a fee in the definition amount of Acquisition Proposal) $65,000,000 (the "Alternative Acquisition"“Parent Termination Fee”) as promptly as practicable (and, if it has not been disclosed publiclyin any event, within two Business Days following such termination).
(iic) only if such Acquisition Proposal was not withdrawn at or prior to In the time of event that this Agreement is terminated by the Company Shareholder Meetingor Parent pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii), (B) or in the event that this Agreement is terminated by Parent or pursuant to Section 9.1(c)(ii) in respect of a Willful Breach of this Agreement by the Company, and in each case (i) at any time after the date of this Agreement and prior to such termination of this Agreement, a Company Acquisition Proposal has been made to the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(ivpublicly announced (whether or not withdrawn) and (Cii) within twelve (12) months of after such termination, the Company enters into a definitive agreement with such third party respect to a Company Acquisition Proposal or a Company Acquisition Proposal is consummated (in each case whether or any Affiliate thereof) not the same Company Acquisition Proposal as that referred to consummate, or consummates, such Alternative Acquisition (as may be amended or supplementedabove), then the Company shallthen, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to in such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)event, the Company shall pay to ParentParent (or its designee), by wire transfer of immediately available funds, the Company Termination Fee within two (2) Business Days following the earlier of the date of the execution of such terminationdefinitive agreement or the consummation of such transaction; provided, however, that for purposes of the Termination Fee definition of “Company Acquisition Proposal” in this Section 9.3(c), references to “15%” and the Parent Expenses; and“85%” shall be replaced by “50%”.
(vd) In the event that this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(iiSection 9.1(d)(ii) or Section 9.1(d)(iv), the Company then, in each case, Parent shall pay to Parentthe Company (or its designee), by wire transfer of immediately available funds, a fee in the amount of $125,000,000 (the “Reverse Termination Fee”) as promptly as practicable (and, in any event, within ten (10) two Business Days of following such termination).
(e) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(iv), then Parent shall pay to the Parent Company (or its designee), by wire transfer of immediately available funds, an amount equal to $29,385,000 as compensation for the Company’s Expenses but no more than US$200,000.as promptly as practicable (and, in any event, within two Business Days following such termination), and if:
Appears in 2 contracts
Samples: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)
Termination Fees. (a) Notwithstanding any provision in this Agreement to the contrary:
(i) In in the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Alternative Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Alternative Proposal) which could or could reasonably be expected to result in a transaction as favorable or more favorable to the holders of Company Common Stock (other than the "Participating Holders) than the transactions provided for in this Agreement at such time as the bona fide intention of any person to make such Alternative Acquisition") and, if it has not been Proposal is publicly proposed or publicly disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or otherwise made known to the Company prior to the time of the Company Shareholder Meetingsuch termination, (B) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 7.1(b), Section 8.1(b)(ii) by Parent or Section 8.1(b)(iv) the Company pursuant to Section 7.1(d), or by Parent pursuant to Section 7.1(f), and (C) concurrently with or within twelve nine (129) months of after such termination, any definitive agreement providing for an Alternative Proposal shall have been entered into, the Company enters into shall pay to Holdings a fee of $25,000,000 in cash (the “Company Termination Fee”); provided, no Company Termination Fee shall be payable if Holdings has previously paid the Parent Termination Fee pursuant to Section 7.1(b) or Section 7.2(b);
(ii) in the event that this Agreement is terminated by the Company pursuant to Section 7.1(g), on the date of execution of a definitive agreement with respect to such third party Superior Proposal, the Company shall pay to Holdings the Company Termination Fee;
(or any Affiliate thereofiii) in the event that this Agreement is terminated by Parent pursuant to consummate, or consummates, such Alternative Acquisition (as may be amended or supplementedSection 7.1(i), then the Company shall, concurrently with shall pay the consummation of the Acquisition Proposal, pay to Parent the Company Termination Fee and to Holdings no later than the Parent Expensessecond business day following the day of such termination;
(iv) In in the event that this Agreement is terminated by Parent or pursuant to Section 7.1(f) (regardless of whether Parent is entitled to payment pursuant to Section 7.2(a)(i)), by the Company terminates this Agreement pursuant to Section 8.1(b)(iiSection 7.1(g), then if, at or prior to such time, Parent would have the right to a Termination Fee by either party pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(dSection 7.1(d), or by Parent provided pursuant to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachSection 7.1(i), the Company shall pay to Holdings, upon termination, an amount in cash equal to the sum of Parent’s and Merger Sub’s documented out-of-pocket fees and expenses reasonably incurred by it in connection with this Agreement and the transactions contemplated by this Agreement in an aggregate amount not to exceed $3,000,000 (the “Company Expense Reimbursement”); provided, however, that the existence of circumstances which could require the Company Termination Fee to become subsequently payable by the Company pursuant to Section 7.2(a)(i) shall not relieve the Company of its obligation to pay the Company Expense Reimbursement pursuant to this Section 7.2(a)(iv); and, provided, further, that the payment by the Company of the Company Expense Reimbursement pursuant to this Section 7.2(a)(iv) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee pursuant to Section 7.2(a)(i). The Company Termination Fee and the Company Expense Reimbursement shall be paid by wire transfer of same day funds as directed by Holdings reasonably in advance. Notwithstanding any provision in this Agreement to the contrary, in no event shall the Company be required to pay the Company Termination Fee or the Company Expense Reimbursement referred to in this Section 7.2(a) on more than one occasion. Upon payment of the Company Termination Fee and the Company Expense Reimbursement, as applicable, the Company shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub, their Affiliates or otherwise except for liability arising out of fraud or an intentional breach of this Agreement, in which case Parent shall have such rights and remedies as are contemplated by Sections 7.4 and 8.12 below (in addition to any amounts owed to such party under Section 7.2).
(b) In the event that this Agreement is terminated (i) by the Company or by Parent pursuant to Section 7.1(b) and the conditions set forth in Sections 6.1 and 6.3 would have been satisfied had the Closing been scheduled on the End Date, or (ii) by the Company pursuant to Section 7.1(e) or Section 7.1(h), then Holdings or its Affiliates shall pay, upon termination, $25,000,000 (the “Parent Termination Fee”) to the Company or as directed by the Company as promptly as reasonably practicable (and, in any event, within two (2) Business Days of business days following such termination), payable by wire transfer of same day funds. Under no circumstances shall the Parent Termination Fee be payable more than once pursuant to this Section 7.2(b). Concurrently with the payment of the Parent Termination Fee, Holdings shall also pay to the Company an amount equal to the sum of the Company’s documented out of pocket fees and expenses reasonably incurred by it on and after September 24, 2007 in connection with this Agreement and the transactions contemplated by this Agreement in an aggregate amount not to exceed $3,000,000 (the “Parent Expense Reimbursement”). Upon payment of the Parent Termination Fee and Parent Expense Reimbursement, neither Holdings, Parent nor Merger Sub shall have any further liability with respect to this Agreement or the Parent Expenses; andtransactions contemplated by this Agreement to the Company, its stockholders, Affiliates or otherwise except for liability arising out of fraud or an intentional breach of this Agreement, in which case the Company shall have such rights as are contemplated by Section 7.3 below.
(vc) In Any payment made pursuant to this Section 7.2 shall be net of any amounts as may be required to be deducted or withheld therefrom under the event Code or under any provision of state, local or foreign Tax Law.
(d) Each of Holdings, the Company, Parent and Merger Sub acknowledge and agree that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither the Company terminates nor Parent would have entered into this Agreement, and that any amounts payable pursuant to this Section 7.2 do not constitute a penalty but rather are liquidated damages in a reasonable amount to compensate the receiving party for efforts and resources expended and opportunities foregone while negotiating this Agreement pursuant and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby. Accordingly, if a party fails to Section 8.1(b)(ii)pay the Company Termination Fee, the Company Expense Reimbursement or the Parent Termination Fee, as applicable, pursuant to this Section 7.2, and the receiving party commences a suit to obtain such payments, which results in a judgment against the paying party for the applicable amount due under this Section 7.2, such paying party shall pay the receiving party its costs and expenses (including reasonable attorney’s fees) in connection with such suit, together with interest on such amount at the prime rate of Citibank N.A. in effect on the date such payment was required to Parent, within ten (10) Business Days be made through the date of such termination, the Parent Expenses but no more than US$200,000payment.
Appears in 2 contracts
Samples: Merger Agreement (Vestar Capital Partners v L P), Merger Agreement (Radiation Therapy Services Inc)
Termination Fees. (a) Notwithstanding any provision in this Agreement to the contrary, if (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following after the date hereof of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Alternative Proposal (for purposes of this subsection, substituting fifty percent (50% %) for the 10% twenty percent (20%) threshold set forth in the definition of Acquisition “Alternative Proposal”) (the "Alternative Acquisition"a “Qualifying Transaction”) and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meetingis made, (B) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 7.1(d) or by Parent pursuant to Section 7.1(f), Section 8.1(b)(iiand, in the case of a termination by Parent or the Company pursuant to Section 7.1(d), such Qualifying Transaction was publicly proposed and not withdrawn on or prior to the tenth (10th) or Section 8.1(b)(iv) business day prior to the date of the Company Meeting and (C) concurrently with or within twelve (12) months after such termination, any definitive agreement providing for any Qualifying Transaction shall have been entered into, or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(g) or by Parent pursuant to Section 7.1(h), then in any such event the Company shall pay to Parent a fee of Two Hundred Million Dollars ($200,000,000) in cash (the “Company Termination Fee”), such payment to be made, in the case of a termination referenced in clause (i) above, upon execution of the definitive agreement providing for the Qualifying Transaction, or in the case of clause (ii) above, concurrently with the termination by the Company pursuant to Section 7.1(g) or within two (2) business days after termination by Parent pursuant to Section 7.1(h); it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one (1) occasion.
(b) Notwithstanding any provision in this Agreement to the contrary, in the event that (i) Parent or the Company shall terminate this Agreement pursuant to Section 7.1(b) and, at the time of such termination, the Company enters into conditions set forth in Section 6.1(a), Section 6.1(b), Section 6.3(a) and Section 6.3(b) have been satisfied, other than, in the case of Section 6.1(b) or Section 6.1(d), for the failure to be satisfied resulting from a definitive agreement with such third party (proceeding brought by a Governmental Entity or any Affiliate thereof) to consummatea decision issued or promulgated by CFIUS or the President of the United States, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(ivii) In the event that Parent or the Company terminates shall terminate this Agreement pursuant to Section 8.1(b)(iiSection 7.1(c) as the result of a proceeding brought by a Governmental Entity or a decision issued or promulgated by CFIUS or the President of the United States, then in any such case Parent shall, upon a request from the Company, pay to the Company a fee of Four Hundred Million Dollars ($400,000,000) in cash (the “Parent Termination Fee”) in accordance with this Section 7.2(b), then ifit being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one (1) occasion. The Parent Termination Fee shall be paid to the Company promptly following the Company’s request after termination of this Agreement by the Company or Parent upon the circumstances described in this Section 7.2(b) (and in any event not later than two (2) business days after delivery to Parent of notice of request for payment).
(c) Notwithstanding anything to the contrary in this Agreement, at or prior to such time, in the event: (i) the Company requests payment by Parent would have of the right to a Parent Termination Fee pursuant to clause (iSection 7.2(b) above (provided that and Parent pays such Parent Termination Fee, payment of such Parent Termination Fee shall be the sole and exclusive remedy of the Company and none of Parent, its Subsidiaries or any of their affiliates shall have any liability to the Company or its Subsidiaries or affiliates or any other person in the event of a right to a termination of this Agreement and (ii) Parent requests payment by the Company of the Company Termination Fee due pursuant to termination under Section 8.1(d), Parent provided to Section 7.1(a) and the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning pays such Company Termination Fee, payment of such breach), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee shall be the sole and the exclusive remedy of Parent Expenses; and
(v) In and none of Company, its Subsidiaries or any of their affiliates shall have any liability to Parent or its Subsidiaries or affiliates or any other person in the event that the Company terminates of termination of this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000Agreement.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Dresser-Rand Group Inc.)
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: (A) :
(i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Company or Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(iiSection 7.1(b)(ii) or Section 8.1(b)(ivby Parent pursuant to Section 7.1(c)(i) and (CA) prior to the Company Stockholder Meeting, a Company Competing Proposal shall have been publicly disclosed and not publicly withdrawn prior to such termination date, and (B) within twelve (12) months after the date of any such termination, (x) the Company enters into a definitive agreement with respect to any Company Competing Proposal or (y) the transactions contemplated by any Company Competing Proposal are consummated, then the Company shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such third party designee the Company Termination Fee concurrently with, and contingent upon, the earlier of the entry into such agreement or the consummation of the transactions contemplated by such Company Competing Proposal regardless of the date of such consummation; or
(or any Affiliate thereofii) this Agreement is terminated by Parent pursuant to consummate, or consummates, such Alternative Acquisition (as may be amended or supplementedSection 7.1(c)(ii), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent or its designee by wire transfer of same day funds to the account or accounts designated by Parent or such designee the Company Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within two (2) Business Days of after such termination, the Termination Fee and the Parent Expenses; and.
(viii) In the event that this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(iiSection 7.1(d)(i) for the Parent’s material breach of Section 5.2(a)(v), the Company Section 5.2(a)(vi) or Section 5.6(e), then Parent shall pay to Parent, the Company (or its designee) by wire transfer of same day funds to the account or accounts designated by the Company or such designee the Parent Termination Fee within ten two (102) Business Days of after such termination, the Parent Expenses but no more than US$200,000.
(b) For purposes of this Section 7.3.
Appears in 2 contracts
Samples: Merger Agreement (ExOne Co), Merger Agreement (Desktop Metal, Inc.)
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) (A) (i) following 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 publicly made or disclosed, after the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is subsequently terminated by Parent or the Company pursuant to Section Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(ivby Parent pursuant to (x) Section 8.1(d)(i) or (y) Section 8.1(d)(ii) 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, and (C) within twelve (12) months of such terminationtermination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such an Alternative Acquisition Agreement providing for the consummation of a Competing Proposal (as may which is subsequently consummated); provided, however, that for purposes of this Section 8.3, the references to “twenty percent (20%)” in the definition of Competing Proposal shall be amended or supplementeddeemed to be references to “fifty percent (50%)”; or
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(iii), then the Company shall, concurrently with (A) in the consummation case of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above above, on the date of the consummation of such transaction involving a Competing Proposal, or (provided that B) in the event case of a right to a Termination Fee due to termination under Section 8.1(d)clause (ii) above, Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within no later than two (2) 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 Parent, the Termination Fee and (it being understood that in no event shall the Parent Expenses; andCompany be required to pay the Termination Fee on more than one occasion).
(vb) In Notwithstanding anything to the event that contrary set forth in this Agreement, but subject to Section 8.3(c) 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 terminates 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 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 circumstances where the Termination Fee is owed pursuant to Section 8.1(b)(iiSection 8.3(a)), none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
(c) 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 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 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 Parentbe made through the date such payment was actually received, within ten or such lesser rate as is the maximum permitted by applicable Law (10) Business Days of such terminationcollectively, the Parent Expenses but no more than US$200,000“Enforcement Expenses”).
Appears in 2 contracts
Samples: Merger Agreement (Home Point Capital Inc.), Merger Agreement (Mr. Cooper Group Inc.)
Termination Fees. (ia) In the event that Parent terminates this Agreement is terminated by the Company pursuant to Section 8.1(d) or Section 8.1(eSection 9.1(c)(ii), then the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;concurrently with any such termination.
(iiib) In the event that: (A) that (i) following the date hereof this Agreement is terminated by Parent pursuant to Section 9.1(d)(ii) and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of is not entitled to terminate this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition ProposalAgreement pursuant to Section 9.1(c)(i) (the "Alternative Acquisition") and, if it has not been disclosed publicly, or (ii) only if such Acquisition Proposal was not withdrawn at or prior this Agreement is terminated by Parent pursuant to Section 9.1(d)(iii), then the time Company shall pay to Parent the Termination Fee within three (3) Business Days after the date of termination.
(c) In the event that all of the Company Shareholder Meeting, following occur: (Bi) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 9.1(b)(iii) or 9.1(d)(i) (in connection with a Willful Breach of the Company's covenants in Section 7.1(a), Section 8.1(b)(ii(ii) at any time after the date of this Agreement and prior to the Company Shareholder Meeting, an Acquisition Proposal shall have been publicly announced and such Acquisition Proposal is not in good faith withdrawn or Section 8.1(b)(ivterminated at least five (5) Business Days prior to the Company Shareholder Meeting, and (Ciii) within twelve nine (129) months of after such termination, the Company or any of its Subsidiaries enters into a definitive agreement with such third party (or any Affiliate thereof) to consummaterespect to, or consummates, any Acquisition Proposal (with references to "25%" in such Alternative Acquisition (as may be amended or supplementeddefinition replaced with "50%"), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent the Termination Fee and Fee, within three (3) Business Days following the Parent Expenses;earlier of the execution of such agreement or consummation of such Acquisition Proposal.
(ivd) In the event Any amount that Parent or the Company terminates this Agreement becomes payable pursuant to Section 8.1(b)(ii), then if, at or prior this Section 9.2 shall be paid by wire transfer of immediately available funds to such time, Parent would have an account designated by Parent.
(e) Upon payment of the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)this Section 9.2, the Company shall pay have no further liability with respect to this Agreement or the transactions contemplated hereby to Parent, within two (2) Business Days of such termination, Merger Sub or their respective shareholders. The parties acknowledge and agree that in no event shall the Company be required to pay the Termination Fee and on more than one occasion. In addition, the Parent Expenses; and
(v) In the event parties acknowledge that the Company terminates agreements contained in this Agreement Section 9.2 are an integral part of the transactions contemplated by this Agreement, that without these agreements the Company, Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to Section 8.1(b)(ii)this Section 9.2 do not constitute a penalty. If the Company fails to pay Parent the Termination Fee when due, the Company shall also pay to ParentParent interest on the unpaid amount under this Section 9.2, within ten (10) Business Days accruing from its due date, at an interest rate per annum equal to two percentage points in excess of the prime commercial lending rate quoted by The Wall Street Journal. Any change in the interest rate hereunder resulting from a change in such prime rate will be effective at the beginning of the date of such termination, the Parent Expenses but no more than US$200,000change in such prime rate.
Appears in 1 contract
Termination Fees. (a) Notwithstanding any provision in this Agreement to the contrary, if
(i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following after the date hereof of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition bona fide Alternative Proposal (for purposes of this subsection, substituting 50% for the 1015% threshold set forth in the definition of Acquisition “Alternative Proposal” with respect to acquisitions of Common Stock and substituting 30% for the 15% threshold set forth in the definition of “Alternative Proposal” with respect to acquisitions of assets) (a “Qualifying Transaction”) is made or delivered to the "Alternative Acquisition") and, if it has not been Company or publicly proposed or publicly disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Parent pursuant to Section 7.1(f) and (C) concurrently with or within twelve (12) months after such termination, the Company shall have entered into a definitive agreement providing for a Qualifying Transaction (which, for the avoidance of doubt, shall include any transaction meeting the definition of Qualifying Transaction and need not be a Qualifying Transaction received or disclosed prior to the termination of this Agreement), or
(ii) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(iiSection 7.1(d) or Section 8.1(b)(ivby Parent pursuant to Section 7.1(j) and (C) concurrently with or within twelve (12) months of after such termination, either a Qualifying Transaction shall have been consummated or the Company enters shall have entered into a definitive agreement with providing for a Qualifying Transaction, or
(iii) in the event a tender offer or exchange offer that is a Qualifying Transaction is consummated prior to the termination of this Agreement and this Agreement is terminated for any reason other than pursuant to Section 7.1(e) or Section 7.1(i), or
(iv) this Agreement is terminated by the Company pursuant to Section 7.1(g) or by Parent pursuant to Section 7.1(h), then in any such third party event the Company shall pay to Parent a fee of $165 million in cash (the “Company Termination Fee”), such payment to be made, in the case of a termination referenced in clauses (i) or any Affiliate thereof(ii) to consummateabove, upon consummation of the Qualifying Transaction, or consummatesin the case of clauses (iii) or (iv) above, concurrently with any such Alternative Acquisition termination by the Company or within two (2) business days after any such termination by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(b) Notwithstanding any provision in this Agreement to the contrary, (i) in the event the Company shall have willfully breached or willfully failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, and (ii) as may be amended a result of such breach or supplementedfailure to perform, either immediately or with the passage of time, the Company or Parent terminates this Agreement in accordance with Section 7.1, other than pursuant to Section 7.1(e), 7.1(g), 7.1(h) or 7.1(i), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent a fee of $165 million in cash (the “Parent Liquidated Damages”); provided, that in no event shall the Company pay both the Company Termination Fee and the Parent Expenses;
(iv) In Liquidated Damages; provided, further, that in the event that the Company would be required to pay, but for the foregoing proviso, both the Company Termination Fee and the Parent Liquidated Damages, only the Parent Liquidated Damages shall be payable. In no event shall the Company be required to pay either the Company Termination Fee or the Company terminates Parent Liquidated Damages on more than one occasion. The Parent Liquidated Damages shall be paid to Parent promptly following termination of this Agreement pursuant by the Company or Parent, as the case may be, as provided in this paragraph (and in any event not later than two business days after delivery to Section 8.1(b)(iithe Company of notice of demand for payment). Notwithstanding anything to the contrary in this Agreement, then if, at nothing in this Agreement shall prevent Parent from claiming or prior to such time, receiving actual damages from the Company in excess of the Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that Liquidated Damages in the event of a right willful and material breach of Section 5.3 hereof.
(c) Notwithstanding any provision in this Agreement to a Termination Fee due the contrary, in the event (i) the Company shall terminate this Agreement pursuant to termination under Section 8.1(dSection 7. l(i), or (ii)(A) Parent provided or Merger Sub shall have willfully breached or willfully failed to perform in any material respect any of their representations, warranties, covenants or other agreements contained in this Agreement, and (B) as a result of such breach or failure to perform, either immediately or with the passage of time, the Company or Parent shall terminate this Agreement in accordance with Section 7.1, other than pursuant to Section 7.1(f), 7.1(g) or 7.1(h), then Parent shall pay to the Company a fee of $165 million in cash (the “Company Liquidated Damages”). In no event shall Parent be required to pay the Company Liquidated Damages on more than one occasion. The Company Liquidated Damages shall be paid to the Company promptly following termination of this Agreement by the Company or Parent, as the case may be, as provided in this paragraph (and in any event not later than two business days after delivery to Parent of notice with respect of demand for payment).
(d) Notwithstanding any provision in this Agreement to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachthe contrary, in the event Parent shall terminate this Agreement pursuant to Section 7.1(d), Section 7. l(f), or Section 7.1(j), then the Company shall pay to Parent as reimbursement of Parent’s and its affiliates’ costs, within two expenses and utilization of resources in connection with the transactions contemplated hereby, an amount equal to $15 million in cash plus the amount of out of pocket fees and expenses, if any, incurred by Parent and its affiliates in connection with litigation arising out of this Agreement and the transactions contemplated hereby up to an additional $5 million (2) Business Days of such terminationcollectively, the Termination Fee and the “Parent Expenses; and
(v) Reimbursement”). In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall be required to pay the Parent Reimbursement and either the Company Termination Fee or the Parent Liquidated Damages, then the amount of Company Termination Fee or Parent Liquidated Damages shall be reduced by the amount of Parent Reimbursement paid to Parent hereunder. The Parent Reimbursement shall be paid to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(d) (and in any event not later than two business days after delivery to the Company of notice of demand for payment).
(e) Each of the parties hereto acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement and that none of the fees contemplated under this Section 7.2 is a penalty, but 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, (i) the Company’s right to receive payment of the Company Liquidated Damages pursuant to this Section 7.2, or the guarantee thereof pursuant to the Guarantees described in the recitals hereto, shall be the exclusive remedy of the Company against Parent, within ten Merger Sub and the Guarantors described in the recitals hereto for (10A) Business Days the loss suffered as a result of such terminationthe failure of the Merger to be consummated and (B) any other losses, damages, obligations or liabilities suffered as a result of or under this Agreement and the transactions contemplated hereby, and upon payment of the Company Liquidated Damages in accordance with this Section 7.2, none of Parent, Merger Sub or the Guarantors described in the recitals hereto, or any of their respective shareholders, partners, members, directors, officers or agents, as the case may be, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby (except as provided for in the Confidentiality Agreement referred to in Section 5.2); and (ii) subject to the final sentence of Section 7.2(b), Parent’s right to receive payment of the Company Termination Fee or the Parent Expenses but no more than US$200,000Liquidated Damages, as applicable, pursuant to this Section 7.2 shall be the exclusive remedy of the Parent, Merger Sub and the Guarantors described in the recitals hereto for (A) the loss suffered as a result of the failure of the Merger to be consummated and (B) any other losses, damages, obligations or liabilities suffered as a result of or under this Agreement and the transactions contemplated hereby, and upon payment of the Company Termination Fee or the Parent Liquidated Damages, as applicable, in accordance with this Section 7.2, none of the Company or any of its respective shareholders, directors, officers or agents, as the case may be, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby (except as provided for in the Confidentiality Agreement referred to in Section 5.2).
Appears in 1 contract
Samples: Merger Agreement (Comdata Network, Inc. Of California)
Termination Fees. (ia) In the event that Parent terminates (i) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(dSection 10.01(b)(i) (End Date) or Section 8.1(eSection 10.01(b)(ii) (Permanent Order) and (ii) at the time of such termination, all of the conditions set forth in Section 9.01 and Section 9.02 have been satisfied or waived (other than any of (x) the conditions set forth in Section 9.01(b) (solely as they relate to Competition Laws or Orders issued, entered, promulgated or enacted by any Governmental Authority pursuant to any Competition Law) or Section 9.01(c) or (y) those other conditions that, by their nature, cannot be satisfied until the Closing but, in the case of this clause (y), are capable of being satisfied, and (other than the condition set forth in Section 9.02(a)(vii)) would be satisfied, at the Closing if the Closing were to occur at the time of such termination), then Parent shall pay or cause to be paid to the Company in immediately available funds $638,000,000 (the “Parent Termination Fee”), in each case, in the case of a termination by the Company, within two (2) Business Days after such termination and, in the case of a termination by Parent, immediately before and as a condition to such termination. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(b) (i) If this Agreement is terminated by the Company pursuant to Section 10.01(d)(i) (Superior Proposal) or by Parent pursuant to Section 10.01(c)(i) (Adverse Recommendation Change), then the Company shall pay or cause to be paid to Parent in immediately available funds $372,000,000 (in each case, such fee, the “Company Termination Fee”), in the case of a termination by Parent, within two (2) Business Days after such termination and, in the case of a termination by the Company, immediately before and as a condition to such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve (12) months of such termination, the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000.
Appears in 1 contract
Termination Fees. (a) If this Agreement is terminated: (i) In the event that by Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly7.3(a), (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of by the Company Shareholder Meetingpursuant to Section 7.4(b), (Biii) this Agreement is terminated by the Company or Parent pursuant to Section 7.2(c) following a Company Change in Recommendation, or (iv) by Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(iiSection 7.2(c) or Section 8.1(b)(ivif (x) and (C) within twelve (12) months of such termination, the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to the Company Stockholders’ Meeting a Company Acquisition Proposal shall have been submitted or made (whether or not publicly disclosed or announced) and shall not have been withdrawn and (y) on or prior to the first anniversary of the termination of this Agreement, either (1) a transaction contemplated by such timeCompany Acquisition Proposal is consummated by the Person(s) submitting such Company Acquisition Proposal or (2) a definitive agreement relating to such Company Acquisition Proposal is entered into by the Company or any of its Subsidiaries with the Person(s) submitting such Company Acquisition Proposal, Parent would have then in each case of the right to a Termination Fee pursuant to clause foregoing clauses (i) above through (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachiv), the Company shall pay pay, or cause to be paid, to Parent, by wire transfer of immediately available funds at the time specified in the following sentence, a nonrefundable fee in the amount of $25,000,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid (A) in the case of a termination by Parent referred to in clause (i) or clause (iii), within two Business Days after termination of this Agreement, (B) in the case of a termination by the Company referred to in clause (ii) or clause (iii), concurrently with the termination of this Agreement, and (C) in the case of a termination referred to in clause (iv), within two Business Days after the first to occur of the events referred to in subclauses (1) or (2) Business Days of such termination, above. In no event shall the Company be obligated to pay the Company Termination Fee and the Parent Expenses; and
(v) In the event that the Company terminates on more than one occasion. For purposes of this Agreement pursuant to Section 8.1(b)(iiSection 7.6(a), the references to “20%” in the definition of Company Acquisition Proposal shall pay be deemed to Parentbe references to “50%.”
(b) If this Agreement is terminated: (i) by the Company pursuant to Section 7.4(a), (ii) by Parent pursuant to Section 7.3(b), (iii) by Parent or the Company pursuant to Section 7.2(d) following a Parent Change in Recommendation, or (iv) by Parent or the Company pursuant to Section 7.2(d) if (x) at or prior to the Parent Stockholders’ Meeting a Parent Acquisition Proposal shall have been submitted or made (whether or not publicly disclosed or announced) and shall not have been withdrawn and (y) on or prior to the first anniversary of the termination of this Agreement, either (1) a transaction contemplated by such Parent Acquisition Proposal is consummated by the Person(s) submitting such Parent Acquisition Proposal or (2) a definitive agreement relating to such Parent Acquisition Proposal is entered into by Parent or any of its Subsidiaries with the Person(s) submitting such Parent Acquisition Proposal, then in each case of the foregoing clauses (i) through (iv), Parent shall pay, or cause to be paid, to the Company, by wire transfer of immediately available funds at the time specified in the following sentence, a nonrefundable fee in the amount of $65,000,000 (the “Parent Termination Fee” and, together with the Company Termination Fee, as applicable, a “Termination Fee”). The Parent Termination Fee shall be paid (A) in the case of a termination by the Company referred to in clause (i) or clause (iii), within ten (10) two Business Days after termination of such terminationthis Agreement, (B) in the case of a termination by Parent referred to in clause (ii) or clause (iii), concurrently with the termination of this Agreement, and (C) in the case of a termination referred to in clause (iv), within two Business Days after the first to occur of the events referred to in subclauses (1) or (2) above. In no event shall Parent be obligated to pay the Parent Termination Fee on more than one occasion. For purposes of this Section 7.6(b), the references to “20%” in the definition of Parent Expenses but no more than US$200,000Acquisition Proposal shall be deemed to be references to “50%.”
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Termination Fees. (i) In the event that Parent terminates If this Agreement is terminated (x) by the Company pursuant to Section 8.1(d) or Section 8.1(eSection 10.01(d)(i), or (y) by Parent pursuant to Section 10.01(c)(i), then the Company shall pay the Company Termination Fee to ParentParent (or its designee), substantially concurrently with the termination in the case of a termination by the Company, or as promptly as reasonably practicable (and, in any event, within two (2) Business Days of following such termination) in the case of a termination by Parent, the Termination Fee and the Parent Expensesin each case, payable by wire transfer of immediately available funds.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: If (A) (i) following after the date hereof of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer receipt of the Company of an Stockholder Approval, a bona fide Acquisition Proposal shall have been made to the Company Board or is publicly announced (for purposes of this subsectioneither by the Company, substituting 50% for the 10% threshold set forth in the definition of Person making such Acquisition Proposal, their respective Representatives, or otherwise publicly announced and confirmed by the Company, the Person making such Acquisition Proposal, or their respective Representatives) (the "Alternative Acquisition") andand in, if it has not been disclosed publiclyany such case, (ii) only if such Acquisition Proposal was is not withdrawn at or least three (3) Business Days prior to the time earlier of the Company Shareholder Stockholder Meeting, the End Date or the date of such termination), (B) thereafter, this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 10.01(b)(i) (at a time when Parent could have terminated this Agreement pursuant to such provision), Section 8.1(b)(ii) Section 10.01(b)(iii), or Section 8.1(b)(iv) Section 10.01(c)(iii), and (C) within twelve (12) months of after such termination, the Company consummates such Acquisition Proposal or enters into a definitive merger or purchase agreement with such third party to effect the transaction contemplated by an Acquisition Proposal (whether or any Affiliate thereof) not the same Acquisition Proposal as that referred to consummate, or consummates, such Alternative Acquisition (as may be amended or supplementedabove), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent the Company Termination Fee by wire transfer of same-day funds on the earlier of the date of consummation of such Acquisition Proposal or the entry into such definitive merger or purchase agreement. For purposes of this Section 11.04(b)(ii), all references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”.
(iii) In no event shall the Company be required to pay the Company Termination Fee on more than one (1) occasion. Parent Expenses;and Merger Subsidiary agree that, upon any termination of this Agreement under circumstances where the Company Termination Fee (and any amounts owed pursuant to Section 11.04(b)(iv)) is payable by the Company pursuant to Section 11.04(b)(i) or Section 11.04(b)(ii) and such Company Termination Fee (and any amounts owed pursuant to Section 11.04(b)(iv)) is paid in full in accordance with this Agreement (and without limiting Section 11.13 prior to such termination), Parent and Merger Subsidiary shall be precluded from any other remedy against the Company, any of the Company’s Subsidiaries, and any of their respective directors, officers, employees, partners, managers, members, stockholders and Affiliates and their respective Representatives, at law or in equity or otherwise, and neither Parent nor Merger Subsidiary shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders or Affiliates or their respective Representatives, in each case in connection with this Agreement or the transactions contemplated hereby, except in the event of Fraud or a Willful and Material Breach of this Agreement or any other Transaction Document as between the parties thereto.
(iv) In The parties hereto acknowledge that the event that Parent or agreements contained in this Section 11.04 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement. Accordingly, if the Company terminates this Agreement fails to promptly pay any amount due pursuant to Section 8.1(b)(ii)Section 11.04(b)(i) or Section 11.04(b)(ii) and, then if, at or prior in order to obtain such timepayment, Parent would have commences a Claim that results in a judgment against the right to a Company for the Company Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)or any portion thereof, the Company shall will pay to ParentParent its out-of-pocket fees, within two costs and expenses (2including reasonable attorneys’ fees) Business Days in connection with such Claim, together with interest on the amount due at the annual rate of 5% plus the prime rate as published in the Wall Street Journal in effect on the date that such terminationpayment was required to be made through the date that such payment was actually received, or a lesser rate that is the Termination Fee and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000maximum permitted by Applicable Law.
Appears in 1 contract
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) (A) (i) following a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal after the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is subsequently terminated by Parent or the Company or Parent pursuant to Section 8.1(b)(i), Section 8.1(b)(iiSection 8.1(b)(iii) or Section 8.1(b)(iv) and at the time of the Stockholders’ Meeting a Competing Proposal has been publicly announced after the date of this Agreement and has not been withdrawn and (C) within twelve (12) months of such terminationtermination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement with providing for the consummation of a Competing Proposal and such third party (or any Affiliate thereof) to consummateCompeting Proposal is subsequently consummated; provided, or consummateshowever, such Alternative Acquisition (as may be amended or supplementedthat for purposes of this Section 8.3(a), the references to “20%” in the definition of Competing Proposal shall be deemed to be references to “50%”;
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii); then the Company shall, (A) in the case of clause (i) above, no later than two Business Days following the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in the case of clause (iii) above, no later than two 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 Parent, the Termination Fee (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.12, Parent’s receipt in full of the Termination Fee pursuant to Section 8.3(a), in circumstances where the Termination Fee is owed pursuant thereto, 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 of the foregoing (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 any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
(c) 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 Acquisition Proposaltransactions contemplated hereby, pay which amount would otherwise be impossible to Parent calculate with precision and (iii) without these agreements, the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or parties hereto would not enter into this Agreement. Accordingly, if the Company terminates this Agreement fails to timely pay any amount due pursuant to Section 8.1(b)(ii)this Section 8.3 and, then if, at or prior in order to obtain such timepayment, Parent would have the right to commences a Termination Fee pursuant to clause (i) above (provided suit that results in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to judgment against the Company notice with respect to its alleged breach for the payment of Section 6.5 as soon as reasonably practicable after learning of such breach)any amount set forth in this Section 8.3, the Company shall pay to Parent, within two Parent its out-of-pocket costs and expenses in connection with such suit (2) Business Days of such termination, the Termination Fee including reasonably attorneys’ fees and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(iiexpenses), together with interest on such amount at the Company shall pay annual rate of 2% plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to Parentbe made through the date such payment was actually received, within ten (10) Business Days of or such termination, lesser rate as is the Parent Expenses but no more than US$200,000maximum permitted by applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Daseke, Inc.)
Termination Fees. (ia) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following the date hereof execution and delivery of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (solely for purposes of this subsection, purpose substituting 50% for the 10all references to 15% threshold set forth and 85% in the related definition of “Acquisition ProposalTransaction”) (the "Alternative Acquisition") and, if it has not shall have been disclosed publicly, publicly announced or shall have become publicly known and (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is thereafter terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 7.1(b) or Section 7.1(c), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (Ciii) within twelve (12) months following the termination of such terminationthis Agreement, either an Acquisition Transaction (whether or not the Acquisition Transaction which is the subject of the Acquisition Proposal referenced in the preceding clause (i)) is consummated or the Company enters into a definitive acquisition agreement with such third party respect to an Acquisition Transaction (whether or any Affiliate thereof) to consummate, or consummates, such Alternative not the Acquisition Transaction which is the subject of the Acquisition Proposal referenced in the preceding clause (as may be amended or supplementedi)), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iiits designee), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within two (2) Business Days after the event in the preceding clause (iii) that triggers the obligation to such fee, a fee in the amount of $78,240,000 (the “Termination Fee Amount”) payable in cash by wire transfer of immediately available funds to an account designated in writing by Parent.
(b) In the event that this Agreement is terminated pursuant to Section 7.1(g) or Section 7.1(h) the Company shall pay to Parent (or its designee), within two (2) Business Days after such termination, the Termination Fee and the Parent Expenses; andAmount in cash by wire transfer of immediately available funds to an account designated in writing by Parent.
(vc) In the event that the Company terminates intends to terminate this Agreement pursuant to Section 8.1(b)(iiSection 7.1(i), as a condition to the Company shall pay to Parent, within ten (10) Business Days effectiveness of such termination, the Company shall substantially simultaneously with the occurrence of such termination pay to Parent Expenses but (or its designee) the Termination Fee Amount in cash by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) The Company acknowledges and hereby agrees that the provisions of this Section 7.4 are an integral part of the transactions contemplated by this Agreement (including the Offer and the Merger), and that, without such provisions, Parent would not have entered into this Agreement. Accordingly, if the Company shall fail to pay in a timely manner the amounts due pursuant to this Section 7.4, and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company, the Company shall promptly reimburse Parent its reasonable costs and expenses (including its reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amounts set forth in this Section 7.4 at the prime rate of Bank of America, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.4 shall not be in lieu of, or replacement or substitution for, damages incurred in the event of any breach of this Agreement.
(e) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(g), payment of the Termination Fee Amount by the Company pursuant to Section 7.4(b) shall constitute liquidated damages, and in the event that Parent shall receive such Termination Fee Amount pursuant to Section 7.4(b), and the Company shall have no more than US$200,000further liability under this Agreement.
Appears in 1 contract
Termination Fees. (ia) In the event that Parent terminates this Agreement is terminated (i) by Parent pursuant to Section 8.1(d8.1(c)(ii) (Change of Board Recommendation) or (ii) by the Company pursuant to Section 8.1(e8.1(d)(iii) (Superior Proposal), then the Company shall pay or cause to be paid to Parent (or its designees) a nonrefundable amount in cash equal to $45,000,000 (the “Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by Parent, within payable, in the case of clause (i), no later than two (2) Business Days after the date of such termination and, in the case of clause (ii), in advance of or concurrently with such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiib) In the event that: (A) (i) following the date hereof and , prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer receipt of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publiclyStockholder Approval, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (Bi) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i) (Outside Date), and at such time the conditions set forth in Section 8.1(b)(ii7.1 (other than Section 7.1(a)) were satisfied, or Section 8.1(b)(iii) (Stockholder No Vote); (ii) after the date of this Agreement and prior to the date of termination (in the case of a termination pursuant to Section 8.1(b)(i) (Outside Date)) or the date of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iv8.1(b)(iii) (Stockholder No Vote)), an Acquisition Proposal was publicly proposed or announced or otherwise communicated to the stockholders of the Company and not withdrawn prior to the date of termination (in the case of a termination pursuant to Section 8.1(b)(i) (Outside Date)) or the date of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii) (Stockholder No Vote)); and (Ciii) within twelve (12) 12 months after the date of such termination, termination of this Agreement the Company enters into a definitive written agreement with respect to an Acquisition Proposal and the transaction contemplated by such third party definitive agreement is later consummated, then on the date such transaction is consummated, the Company shall pay or cause to be paid to Parent (or any Affiliate thereofits designees) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(b), each reference to “20%” in the Parent Expenses;definition of “Acquisition Proposal” shall be deemed to be a reference to “50%.”
(ivc) In the The parties agree and understand that in no event that Parent or shall the Company terminates this Agreement pursuant be required to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have pay the right to a Termination Fee pursuant on more than one occasion. Notwithstanding anything to clause the contrary in this Agreement, (i) above (provided that if Parent is entitled to terminate this Agreement and to receive payment of the Termination Fee from the Company pursuant to this Section 8.3, except in the event case of a right intentional fraud, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to a or arising out of this Agreement or the transactions contemplated hereby; and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. Accordingly, if the Company fails to timely pay the amount due pursuant to termination under this Section 8.1(d)8.3, and, in order to obtain such payment, Parent provided to the Company notice with respect to commences a suit, action or other proceeding that results in a judgment in its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)favor, the Company shall pay to ParentParent its reasonable and documented out-of-pocket costs and expenses (including reasonable out-of-pocket attorneys’ fees and expenses) in connection with such suit, within two (2) Business Days action or other proceeding, together with interest on the amount of such termination, payment from the Termination Fee and date such payment was required to be made until the Parent Expenses; and
(v) In date of payment at a rate per annum equal to the event that prime interest rate published in The Wall Street Journal on the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of date such termination, the Parent Expenses but no more than US$200,000interest begins accruing.
Appears in 1 contract
Termination Fees. (a) Notwithstanding any provision in this Agreement to the contrary, if
(i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following after the date hereof of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition bona fide Alternative Proposal (for purposes of this subsection, substituting 50% for the 1015% threshold set forth in the definition of Acquisition “Alternative Proposal” with respect to acquisitions of Common Stock and substituting 30% for the 15% threshold set forth in the definition of “Alternative Proposal” with respect to acquisitions of assets) (a “Qualifying Transaction”) is made or delivered to the "Alternative Acquisition") and, if it has not been Company or publicly proposed or publicly disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Parent pursuant to Section 7.1(f) and (C) concurrently with or within twelve (12) months after such termination, the Company shall have entered into a definitive agreement providing for a Qualifying Transaction (which, for the avoidance of doubt, shall include any transaction meeting the definition of Qualifying Transaction and need not be a Qualifying Transaction received or disclosed prior to the termination of this Agreement), or
(ii) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(iiSection 7.1(d) or Section 8.1(b)(ivby Parent pursuant to Section 7.1(j) and (C) concurrently with or within twelve (12) months of after such termination, either a Qualifying Transaction shall have been consummated or the Company enters shall have entered into a definitive agreement with providing for a Qualifying Transaction, or
(iii) in the event a tender offer or exchange offer that is a Qualifying Transaction is consummated prior to the termination of this Agreement and this Agreement is terminated for any reason other than pursuant to Section 7.1(e) or Section 7.1(i), or
(iv) this Agreement is terminated by the Company pursuant to Section 7.1(g) or by Parent pursuant to Section 7.1(h), then in any such third party event the Company shall pay to Parent a fee of $165 million in cash (the “Company Termination Fee”), such payment to be made, in the case of a termination referenced in clauses (i) or any Affiliate thereof(ii) to consummateabove, upon consummation of the Qualifying Transaction, or consummatesin the case of clauses (iii) or (iv) above, concurrently with any such Alternative Acquisition termination by the Company or within two (2) business days after any such termination by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(b) Notwithstanding any provision in this Agreement to the contrary, (i) in the event the Company shall have willfully breached or willfully failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, and (ii) as may be amended a result of such breach or supplementedfailure to perform, either immediately or with the passage of time, the Company or Parent terminates this Agreement in accordance with Section 7.1, other than pursuant to Section 7.1(e), 7.1(g), 7.1(h) or 7.1(i), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent a fee of $165 million in cash (the “Parent Liquidated Damages”); provided, that in no event shall the Company pay both the Company Termination Fee and the Parent Expenses;
(iv) In Liquidated Damages; provided, further, that in the event that the Company would be required to pay, but for the foregoing proviso, both the Company Termination Fee and the Parent Liquidated Damages, only the Parent Liquidated Damages shall be payable. In no event shall the Company be required to pay either the Company Termination Fee or the Company terminates Parent Liquidated Damages on more than one occasion. The Parent Liquidated Damages shall be paid to Parent promptly following termination of this Agreement pursuant by the Company or Parent, as the case may be, as provided in this paragraph (and in any event not later than two business days after delivery to Section 8.1(b)(iithe Company of notice of demand for payment). Notwithstanding anything to the contrary in this Agreement, then if, at nothing in this Agreement shall prevent Parent from claiming or prior to such time, receiving actual damages from the Company in excess of the Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that Liquidated Damages in the event of a right willful and material breach of Section 5.3 hereof.
(c) Notwithstanding any provision in this Agreement to a Termination Fee due the contrary, in the event (i) the Company shall terminate this Agreement pursuant to termination under Section 8.1(dSection 7.1(i), or (ii)(A) Parent provided or Merger Sub shall have willfully breached or willfully failed to perform in any material respect any of their representations, warranties, covenants or other agreements contained in this Agreement, and (B) as a result of such breach or failure to perform, either immediately or with the passage of time, the Company or Parent shall terminate this Agreement in accordance with Section 7.1, other than pursuant to Section 7.1(f), 7.1(g) or 7.1(h), then Parent shall pay to the Company a fee of $165 million in cash (the “Company Liquidated Damages”). In no event shall Parent be required to pay the Company Liquidated Damages on more than one occasion. The Company Liquidated Damages shall be paid to the Company promptly following termination of this Agreement by the Company or Parent, as the case may be, as provided in this paragraph (and in any event not later than two business days after delivery to Parent of notice with respect of demand for payment).
(d) Notwithstanding any provision in this Agreement to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachthe contrary, in the event Parent shall terminate this Agreement pursuant to Section 7.1(d), Section 7.1(f), or Section 7.1(j), then the Company shall pay to Parent as reimbursement of Parent’s and its affiliates’ costs, within two expenses and utilization of resources in connection with the transactions contemplated hereby, an amount equal to $15 million in cash plus the amount of out of pocket fees and expenses, if any, incurred by Parent and its affiliates in connection with litigation arising out of this Agreement and the transactions contemplated hereby up to an additional $5 million (2) Business Days of such terminationcollectively, the Termination Fee and the “Parent Expenses; and
(v) Reimbursement”). In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall be required to pay the Parent Reimbursement and either the Company Termination Fee or the Parent Liquidated Damages, then the amount of Company Termination Fee or Parent Liquidated Damages shall be reduced by the amount of Parent Reimbursement paid to Parent hereunder. The Parent Reimbursement shall be paid to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(d) (and in any event not later than two business days after delivery to the Company of notice of demand for payment).
(e) Each of the parties hereto acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement and that none of the fees contemplated under this Section 7.2 is a penalty, but 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, (i) the Company’s right to receive payment of the Company Liquidated Damages pursuant to this Section 7.2, or the guarantee thereof pursuant to the Guarantees described in the recitals hereto, shall be the exclusive remedy of the Company against Parent, within ten Merger Sub and the Guarantors described in the recitals hereto for (10A) Business Days the loss suffered as a result of such terminationthe failure of the Merger to be consummated and (B) any other losses, damages, obligations or liabilities suffered as a result of or under this Agreement and the transactions contemplated hereby, and upon payment of the Company Liquidated Damages in accordance with this Section 7.2, none of Parent, Merger Sub or the Guarantors described in the recitals hereto, or any of their respective shareholders, partners, members, directors, officers or agents, as the case may be, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby (except as provided for in the Confidentiality Agreement referred to in Section 5.2); and (ii) subject to the final sentence of Section 7.2(b), Parent’s right to receive payment of the Company Termination Fee or the Parent Expenses but no more than US$200,000Liquidated Damages, as applicable, pursuant to this Section 7.2 shall be the exclusive remedy of the Parent, Merger Sub and the Guarantors described in the recitals hereto for (A) the loss suffered as a result of the failure of the Merger to be consummated and (B) any other losses, damages, obligations or liabilities suffered as a result of or under this Agreement and the transactions contemplated hereby, and upon payment of the Company Termination Fee or the Parent Liquidated Damages, as applicable, in accordance with this Section 7.2, none of the Company or any of its respective shareholders, directors, officers or agents, as the case may be, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby (except as provided for in the Confidentiality Agreement referred to in Section 5.2) .
Appears in 1 contract
Termination Fees. (a) If:
(i) In (x) a Competing Proposal has been made directly to the event that Parent terminates stockholders of the Company generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional and whether or not withdrawn) to make a Competing Proposal or communicated a Competing Proposal to the Company (or any officer or director thereof) (y) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(dSection 8.1(b) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of but only if at such termination, the Termination Fee and the time Parent Expenses.
(ii) In the event that the Company terminates would not be prohibited from terminating this Agreement pursuant to Section 8.1(c8.1(b)) the Company shall, simultaneously with such termination, pay or by Parent pursuant to Parent the Termination Fee Section 8.1(e) and Parent Expenses;
(iiiz) In the event that: within twelve (A12) (i) following the date hereof and prior to the months after termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition consummates any Competing Proposal or enters into any definitive agreement providing for any Competing Proposal (for purposes of this subsection, substituting 50% for the 10% threshold thresholds set forth in the definition of Acquisition Competing Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, );
(ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Parent or pursuant to Section 8.1(g); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(iSection 8.1(h); then in any such event (I) the Company shall pay to Parent a fee payable in cash equal to $118,000,000 (the “Company Termination Fee”), Section 8.1(b)(iisuch payment to be made (x) or Section 8.1(b)(ivin the case of Section 8.3(a)(i), at the earlier of (A) and (C) within twelve (12) months of such termination, when the Company enters into a definitive agreement with providing for a transaction in respect of such third party Competing Proposal or (or any Affiliate thereofB) to consummate, or consummates, when a transaction in respect of such Alternative Acquisition Competing Proposal is consummated; (as may be amended or supplementedy) in the case of Section 8.3(a)(ii), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within no later than two (2) Business Days after the termination of this Agreement; or (z) in the case of Section 8.3(a)(iii), substantially concurrently with the termination of this Agreement; it being understood that in no event shall the Company be required to pay any fee referred to in this Section 8.3(a) on more than one occasion and (II) subject to the provisions of Section 8.2(ii), but notwithstanding any other provision to the contrary in this Agreement, in any circumstance in which the Company Termination Fee is payable in accordance with the terms of this Agreement, then, (x) Parent’s and Acquisition Sub’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Company or any of its Affiliates, stockholders, directors, officers, employees, agents or other representatives (the “Company Related Parties”) for any breach, loss or damage shall be to terminate this Agreement and receive payment of the Company Termination Fee, only to the extent provided for by Section 8.3(a), and (y) upon payment of such amount in accordance with Section 8.3(a), no Person shall have any rights or claims against any of the Company Related Parties under this Agreement, in respect of any oral representations made or alleged to be made in connection herewith, in respect of the transactions contemplated hereby, whether at law or equity, in contract, in tort or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or in respect of the transactions contemplated hereby or thereby.
(b) If this Agreement is terminated by either Parent or the Company:
(i) pursuant to Section 8.1(c), only in connection with any Order or action by a Governmental Authority with respect to the Antitrust Laws, or
(ii) pursuant to Section 8.1(b) and, in the case of this clause (ii), (A) at the time of such termination, the Termination Fee conditions set forth in Sections (b) or (c)(i) of Annex I shall not have been satisfied (with regard to the condition set forth in Section (c)(i) of Annex I, as a result of an Order or Law under the Antitrust Laws), (B) the failure of one or more of the conditions set forth in Sections (b) and the Parent Expenses; and
(vc)(i) In the event that the Company terminates of Annex I to be satisfied is not primarily caused by any breach of Section 6.2 of this Agreement pursuant by the Company, and (C) all of the conditions to Section 8.1(b)(iithe obligations of Parent and Acquisition Sub to consummate the Offer set forth in Annex I (other than the conditions set forth in Sections (a)(i) (other than if a Competing Proposal is pending and a Change of Recommendation shall have occurred in connection therewith), (a)(ii), (b) and (c)(i) of Annex I) have been satisfied or waived (and, in the Company case of those conditions that by their terms are to be satisfied at the Offer Closing, such conditions would be satisfied if the Offer Closing were then to occur), then, in either such event, Parent shall pay to Parentthe Company or the Company’s designee, within ten by wire transfer of immediately available funds to an account or accounts designated in writing by the Company, a cash amount equal to $$118,000,000 million (10the “Parent Termination Fee”) no later than two (2) Business Days after the termination of this Agreement, it being understood that in no event shall the Company be entitled to the Parent Termination Fee referred to in this Section 8.3(b) on more than one occasion.
(c) subject to the provisions of Section 8.2(ii), but notwithstanding any other provision to the contrary in this Agreement, in any circumstance in which the Parent Termination Fee is payable, then (x) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Acquisition Subs or any of their Affiliates, equityholders, controlling persons, stockholders, directors, officers, employees, agents or other representatives (the “Parent Related Parties”) for any breach, loss or damage shall be to terminate this Agreement and receive payment of the Parent Termination Fee, only to the extent provided for by Section 8.3(b), and (y) upon payment of such termination, amount in accordance with Section 8.3(b) no Person shall have any rights or claims against any of the Parent Expenses but no more than US$200,000Related Parties under this Agreement, in respect of any oral representations made or alleged to be made in connection herewith, in respect of the transactions contemplated hereby, whether at law or equity, in contract, in tort or otherwise, and none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or in respect of the transactions contemplated hereby or thereby.
Appears in 1 contract
Termination Fees. (a) Notwithstanding any provision in this Agreement to the contrary, if (i) In the event that Parent terminates this Agreement is terminated by the Company pursuant to Section 8.1(d) or Section 8.1(eSection 7.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement is terminated by Parent pursuant to Section 8.1(c) the Company shall7.1(f), simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
or (iii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure a Takeover Proposal is publicly proposed or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meetingpublicly disclosed, (B) this Agreement is terminated by the Company pursuant to Section 7.1(b) or by Parent or the Company pursuant to Section 8.1(b)(iSection 7.1(d), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) concurrently with or within twelve (12) months after the date of such terminationtermination (x) the Company shall have entered into an Acquisition Agreement with any party (other than Parent) with respect to a Takeover Proposal or (y) a Takeover Proposal shall have been consummated, then, in each case, the Company enters into shall (without prejudice to any other rights of Parent against the Company) pay to Parent, by wire transfer of immediately available funds, (i) a definitive agreement fee in cash (the "Parent Termination Fee") equal to $76 million and (ii) an amount in cash equal to $15 million which Parent believes is a good faith estimate of its anticipated expenses in connection with this Agreement (including attorneys' fees and fees of financial advisors) ("Parent Expense Amount"); provided, that payment of the Parent Expense Amount shall not be made to the extent that it is reasonably determined that such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then payment would prevent the Company shall, concurrently with the consummation from accounting for any subsequent business combination as a pooling-of-interests for financial accounting purposes. Payment of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;Expense Amount shall be made simultaneously with such termination in the case of a termination by the Company pursuant to Section 7.1(e) and promptly, but in no event later than the fifth business day following a termination by Parent pursuant to Section 7.1(f) and, in the case of clause (iii) of the first sentence of this Section 7.2(a), upon the earlier of the execution by the Company of an Acquisition Agreement and the consummation of any Takeover Proposal.
(ivb) In Notwithstanding any provision in this Agreement to the event that Parent or contrary, if this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(iiSection 7.1(g), then ifParent shall (without prejudice to any other rights of the Company against Parent) pay to the Company, at or prior by wire transfer of immediately available funds, a fee in cash (the "Company Termination Fee") equal to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above $76 million and (provided that ii) an amount in the event of a right cash equal to a Termination Fee due $15 million to termination under Section 8.1(d), Parent provided to reimburse the Company notice for its anticipated expenses in connection with respect to its alleged breach this Agreement (including attorney's fees and fees of Section 6.5 as soon as reasonably practicable after learning financial advisors) ("Company Expense Amount"). Payment of such breach), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses; andCompany Expense Amount shall be made promptly, but in no event later than the fifth business day following termination of this Agreement by the Company pursuant to Section 7.1(g).
(vc) In the event that the Company terminates this Agreement Any payment made pursuant to Section 8.1(b)(ii), Section 7.2(a) or (b) hereunder shall represent the Company sole remedy for any termination requiring such payment and the party making such payment shall pay to Parent, within ten (10) Business Days have no further liability hereunder except as otherwise provided in the last paragraph of such termination, the Parent Expenses but no more than US$200,000Section 7.1.
Appears in 1 contract
Samples: Merger Agreement (Betzdearborn Inc)
Termination Fees. (a) If:
(i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates terminate this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses9.1(d);
(iiiii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of Agreement is terminated by the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior Parent pursuant to the time of the Company Shareholder MeetingSection 9.1(b)(ii), (B) this Agreement is terminated by Parent or the Company or Parent pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(ivSection 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) within twelve this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and after the date hereof but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known, whether or not withdrawn, (12x) months prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination, termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or
(iii) the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates shall terminate this Agreement pursuant to Section 8.1(b)(iiSection 9.1(f), then ifin any case as described in clause (i), at (ii) or prior (iii) the Company shall pay (or cause to such timebe paid) to Parent (by wire transfer of immediately available funds), Parent would have (x) in the right to a Termination Fee pursuant to case described in clause (i) above or (provided that iii), $1,000,000,000 (the “Termination Fee”) not later than the date of termination of this Agreement and (y) in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachcase described in clause (ii), the Company shall pay (or cause to Parentbe paid) an amount equal to the Termination Fee not later than the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as such Acquisition Proposal is consummated or such definitive agreement is executed within 12 months after the date of termination of this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%.
(b) If this Agreement is terminated by the Company pursuant to Section 9.1(e), then Parent shall pay (or cause to be paid) to the Company (by wire transfer of immediately available funds) an amount equal to the Chevron Termination Fee within two (2) Business Days after the date of such termination.
(c) Each party acknowledges that the agreements contained in this Section 10.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, no party would have entered into this Agreement. Accordingly, if the Company or Parent fails to pay timely any amount due pursuant to this Section 10.5 and, in order to obtain such payment, the Termination Fee and other party (the Parent Expenses; and
“Recipient”) commences a suit which results in a judgment against the party obligated to make such payment (vthe “Payor”) In for the event that amount payable to the Company terminates this Agreement Recipient pursuant to Section 8.1(b)(ii)this Section 10.5, the Company Payor shall pay to Parentthe Recipient its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, within ten together with interest on the amount so payable at the rate on six (106)-month United States Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) Business Days of such termination, the Parent Expenses but no more than US$200,000plus three percent (3%).
Appears in 1 contract
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) (A) (i) following a Third Party shall have made to the Company or directly to the Company's stockholders a Competing Proposal after the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is subsequently terminated by Parent or the Company or Parent pursuant to Section 8.1(b)(i), Section 8.1(b)(iiSection 8.1(b)(iii) or Section 8.1(b)(iv) and at the time of the Stockholders' Meeting a Competing Proposal has been publicly announced after the date of this Agreement and has not been withdrawn and (C) within twelve (12) months of such terminationtermination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement with providing for the consummation of a Competing Proposal and such third party (or any Affiliate thereof) to consummateCompeting Proposal is subsequently consummated; provided, or consummateshowever, such Alternative Acquisition (as may be amended or supplementedthat for purposes of this Section 8.3(a), the references to "20%" in the definition of Competing Proposal shall be deemed to be references to "50%";
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii); then the Company shall, (A) in the case of clause (i) above, no later than two Business Days following the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in the case of clause (iii) above, no later than two 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 Parent, the Termination Fee (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.12, Parent's receipt in full of the Termination Fee pursuant to Section 8.3(a), in circumstances where the Termination Fee is owed pursuant thereto, 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 of the foregoing (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 any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
(c) 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 Acquisition Proposaltransactions contemplated hereby, pay which amount would otherwise be impossible to Parent calculate with precision and (iii) without these agreements, the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or parties hereto would not enter into this Agreement. Accordingly, if the Company terminates this Agreement fails to timely pay any amount due pursuant to Section 8.1(b)(ii)this Section 8.3 and, then if, at or prior in order to obtain such timepayment, Parent would have the right to commences a Termination Fee pursuant to clause (i) above (provided suit that results in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to judgment against the Company notice with respect to its alleged breach for the payment of Section 6.5 as soon as reasonably practicable after learning of such breach)any amount set forth in this Section 8.3, the Company shall pay to Parent, within two Parent its out-of-pocket costs and expenses in connection with such suit (2) Business Days of such termination, the Termination Fee including reasonably attorneys' fees and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(iiexpenses), together with interest on such amount at the Company shall pay annual rate of 2% plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to Parentbe made through the date such payment was actually received, within ten (10) Business Days of or such termination, lesser rate as is the Parent Expenses but no more than US$200,000maximum permitted by applicable Law.
Appears in 1 contract
Termination Fees. (ia) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the The Company shall pay to Parent, within two Parent a fee of $3,552,298 (2the “Company Termination Fee”) Business Days of such termination, the Termination Fee and the Parent Expenses.if:
(iii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c9.01(h);
(ii) the Company shall, simultaneously with such termination, pay Parent terminates this Agreement pursuant to Parent the Termination Fee and Parent ExpensesSection 9.01(d);
(iii) In the event that: (A) after the Agreement Date, a bona fide Company Takeover Proposal is publicly proposed or announced or shall have become publicly known or otherwise communicated to management of the Company or the Company Board, and such Company Takeover Proposal is not publicly withdrawn or, if not publicly proposed or announced, communicated to the Company Board or management has been withdrawn (ix) following in the date hereof and case of this Agreement being subsequently terminated pursuant to Section 9.01(b)(i), prior to the termination date that is four (4) Business Days prior to the final expiration date of the Offer or (y) in the case of this AgreementAgreement being subsequently terminated pursuant to Section 9.01(c), there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meetingbreach giving rise to such termination, (B) this Agreement is terminated by (x) either Parent or the Company pursuant to Section 8.1(b)(iSection 9.01(b)(i) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 9.01(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(iv(y) Parent pursuant to Section 9.01(c) as a result of a breach by the Company of a covenant in this Agreement, and (C) within twelve (12) months of after such termination, the Company consummates any Company Takeover Proposal or the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the any Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses; and
(v) In the event Takeover Proposal that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000is subsequently consummated.
Appears in 1 contract
Termination Fees. (i) In the event that Parent terminates If this Agreement is terminated by Parent pursuant to Section 8.1(d) or Section 8.1(eSection 10.1(c)(i), then the Company shall pay an amount equal to Parent, $51,900,000.00 (the “Termination Fee”) to Parent in immediately available funds within two (2) Business Days after such termination by wire transfer of such termination, the Termination Fee and the Parent Expensesimmediately available funds to an account or accounts designated in writing by Parent.
(ii) In the event that If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(c) 10.1(d)(i), then the Company shall, simultaneously with such termination, shall pay to Parent the Termination Fee and to Parent Expenses;in immediately available funds prior to or concurrently with such termination by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.
(iii) In the event that: If (A) (i) following after the date hereof and prior hereof, an Acquisition Proposal shall have been publicly made to the termination of this AgreementCompany or shall have been publicly made or disclosed, there has been disclosure publicly or delivered to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsectionand, substituting 50% for the 10% threshold set forth in the definition case of Acquisition Proposal) (the "Alternative Acquisition") anda termination pursuant to Section 10.1(b)(iii), if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was is not withdrawn at or prior to least one (1) Business Day before such vote is taken on the time adoption of the Company Shareholder Meetingthis Agreement), (B) thereafter, this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 10.1(b)(i), Section 8.1(b)(iiSection 10.1(b)(iii) or Section 8.1(b)(ivSection 10.1(c)(ii) (with respect to Section 10.1(c)(ii), to the extent such termination by Parent is permitted in connection with a breach or failure to perform under Section 6.3) and (C) within twelve (12) months of after such termination, the Company either enters into a definitive agreement with such third party (or any Affiliate thereof) to consummateproviding for the consummation of, or consummates, such Alternative an Acquisition (as may be amended or supplemented)Proposal, then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent the Termination Fee and by wire transfer of immediately available funds on the Parent Expenses;
(iv) In earlier of the event that Parent date of such consummation or the Company terminates this Agreement pursuant to Section 8.1(b)(iisuch entry into such definitive agreement. For purposes of Section 11.4(b), then if, at or prior all references to such time, Parent would have the right to a Termination Fee pursuant to clause “twenty percent (i) above (provided that 20%)” in the event definition of a right “Acquisition Proposal” shall be deemed to a Termination Fee due be references to termination under Section 8.1(d“fifty percent (50%), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000”.
Appears in 1 contract
Samples: Merger Agreement (TravelCenters of America Inc. /MD/)
Termination Fees. (ia) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the The Company shall pay to Parent, within two Parent a fee of $2,600,000 (2the “Company Termination Fee”) Business Days of such termination, the Termination Fee and the Parent Expenses.if:
(iii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c9.01(h);
(ii) the Company shall, simultaneously with such termination, pay Parent terminates this Agreement pursuant to Parent the Termination Fee and Parent ExpensesSection 9.01(d);
(iii) In the event that: (A) after the Agreement Date, a bona fide Company Takeover Proposal is publicly proposed or announced or shall have become publicly known or otherwise communicated to management of the Company or the Company Board, and such Company Takeover Proposal is not publicly withdrawn or, if not publicly proposed or announced, communicated to the Company Board or management has been withdrawn (ix) following in the date hereof and case of this Agreement being subsequently terminated pursuant to Section 9.01(b)(i), prior to the termination date that is four Business Days prior to the final expiration date of the Offer or (y) in the case of this AgreementAgreement being subsequently terminated pursuant to Section 9.01(c), there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meetingbreach giving rise to such termination, (B) this Agreement is terminated by (x) either Parent or the Company pursuant to Section 8.1(b)(iSection 9.01(b)(i) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 9.01(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(iv(y) Parent pursuant to Section 9.01(c) as a result of a breach by the Company of a covenant in this Agreement, and (C) within twelve (12) 12 months of after such termination, the Company consummates any Company Takeover Proposal or the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the any Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses; and
(v) In the event Takeover Proposal that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000is subsequently consummated.
Appears in 1 contract
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) this Agreement is validly terminated (A) by the Company pursuant to Section 7.1(h) or (iB) following by Parent pursuant to Section 7.1(g); or
(ii) (A) after the date hereof of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer receipt of the Company of Stockholder Approval, an Acquisition Alternative Proposal (for purposes of this subsection, substituting fifty percent (50% %) for the 10% twenty percent (20%) threshold set forth in the definition of Acquisition “Alternative Proposal”) (the "Alternative Acquisition"a “Qualifying Transaction”) and, if it has not shall have been disclosed publicly, (ii) only if such Acquisition Proposal was publicly made and not withdrawn at or prior to the time of Company Stockholders’ Meeting or publicly disclosed or otherwise announced prior to the Company Shareholder Stockholders’ Meeting, (B) thereafter this Agreement is validly terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 7.1(b) or Section 7.1(d), Section 8.1(b)(ii) or Section 8.1(b)(ivby Parent pursuant to Section 7.1(f) and (C) concurrently with or within twelve nine (129) months of after such termination, the Company enters shall have entered into a definitive agreement with providing for such third party Qualifying Transaction or entered into a definitive agreement to effect the transaction contemplated by a Qualifying Transaction (which Qualifying Transaction is subsequently consummated, whether during or any Affiliate thereof) to consummate, or consummates, following such Alternative Acquisition nine (as may be amended or supplemented9)-month period), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach); then, the Company shall pay Parent the Company Termination Fee in immediately available funds (1) in the case of Section 7.3(a)(i)(A) above, prior to Parentor concurrently with such valid termination, within two (2) in the case of Section 7.3(a)(i)(B) above, within three (3) Business Days after valid termination of such terminationthis Agreement, or (3) in the Termination Fee and case of Section 7.3(a)(ii) above, within three (3) Business Days after the Parent Expenses; andlast to occur of the events set forth in Section 7.3(a)(ii) above.
(viii) In the event that this Agreement is validly terminated (i) by the Company terminates pursuant to Section 7.1(e) or 7.1(i) or (ii) by Parent or the Company pursuant to Section 7.1(b) and at such time the Company was entitled to terminate this Agreement pursuant to Section 8.1(b)(iiSection 7.1(e) or Section 7.1(i), then Parent shall pay the Company the Parent Termination Fee in immediately available funds within three (3) Business Days after the date of such valid termination to one or more accounts designated by the Company.
(b) Each of the parties hereto acknowledges that neither the Company Termination Fee nor the Parent Termination Fee is intended to be a penalty but rather 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 is due and 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. Each of the parties hereto acknowledges and agrees that in no event will the Company or Parent be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion, whether or not the Company Termination Fee or the Parent Termination Fee, as applicable, may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence of different events.
(c) Each of the parties hereto acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the Company, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company or Parent fails to pay in a timely manner the Company Termination Fee or the Parent Termination Fee, as applicable, then the Company shall pay to Parent or Parent shall pay to the Company, as applicable, 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 set forth in The Wall Street Journal in effect on the date such payment was required to be made. plus 2% per annum.
(d) The Company’s receipt of the Parent Termination Fee to the extent owed pursuant to Section 7.3(a)(iii) (plus any interest thereon pursuant to Section 7.3(c), and the amounts, if any, due and owing to the Company pursuant to Section 5.11(e) and the proviso to Section 8.2(a)), the Company’s right to specific performance pursuant to Section 8.5, the Company’s rights in connection with claims against the parties to pursuant to the Confidentiality Agreements, the Company’s rights pursuant to and in accordance with the terms of the Guarantees and the Company’s right to damages as a result of fraud or a Willful Breach by Parent or Merger Sub of any of their covenants or agreements in this Agreement (in each case, subject to the limitations set forth in Section 7.2 and Section 7.3) will be the sole and exclusive remedy of the Company against (A) Parent, within ten Merger Sub, or the Equity Investors; and (10B) Business Days the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Debt Financing Entities, Affiliates (other than Parent, Merger Sub, or the Equity Investors), members, managers, general or limited partners, stockholders and assignees of each of Parent, Merger Sub or the Equity Investors (the Persons in clauses (A) and (B) collectively, the “Parent Related Parties”) in respect of this Agreement, the Commitment Letters, the Guarantees and the transactions contemplated hereby and thereby, and upon payment of such terminationamounts, none of the Parent Related Parties will have any further monetary liability or obligation to the Company relating to or arising out of this Agreement, the Commitment Letters, the Guarantees or the transactions contemplated hereby and thereby (except that the parties hereto (or their Affiliates), as applicable, will remain obligated with respect to, and the parties hereto (or their Affiliates), as applicable, may be entitled to remedies with respect to, the Confidentiality Agreements). Except with respect to the Company’s right in connection with claims against the parties to the Confidentiality Agreements and subject in all respects to Section 7.2, this Section 7.3 and Section 8.5 (including, in each case, the limitations set forth therein), upon the payment by Parent Expenses of the Parent Termination Fee to the extent owed pursuant to Section 7.3(a)(iii) (plus any interest thereon pursuant to Section 7.3(c), and the amounts, if any, due and owing to the Company pursuant to Section 5.11(e) and the proviso to Section 8.2(a)), none of the Parent Related Parties shall have any further liability (whether in equity or at law, in contract, in tort or otherwise) with respect to this Agreement or the transactions contemplated hereby to the Company Related Parties.
(e) Parent’s receipt of the Company Termination Fee to the extent owed pursuant to Section 7.3(a)(i) or Section 7.3(a)(ii) (plus any interest thereon pursuant to Section 7.3(c)), Parent’s right to specific performance pursuant to Section 8.5 and Parent’s right to damages as a result of fraud or a Willful Breach by the Company of any of its covenants or agreements in this Agreement (in each case, subject to the limitations set forth in Section 7.2 and Section 7.3) will be the sole and exclusive remedy of Parent and Merger Sub and each of their respective Affiliates against (A) the Company, its Subsidiaries and each of their respective Affiliates; and (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (the Persons in clauses (A) and (B) collectively, the “Company Related Parties”) in respect of this Agreement, the Merger and the transactions contemplated hereby, and upon payment of such amounts, none of the Company Related Parties will have any further monetary liability or obligation to the Parent Related Parties relating to or arising out of this Agreement, the Merger or the transactions contemplated hereby (except that the parties hereto (or their Affiliates), as applicable, will remain obligated with respect to, and the parties hereto (or their Affiliates), as applicable, may be entitled to remedies with respect to, the Confidentiality Agreements). Except with respect to Parent’s right in connection with claims against the parties to the Confidentiality Agreements and subject in all respects to Section 7.2, this Section 7.3 and Section 8.5 (including, in each case, the limitations set forth therein), upon the payment of the Company Termination Fee to the extent owed pursuant to Section 7.3(a)(i) or Section 7.3(a)(ii) (plus any interest thereon pursuant to Section 7.3(c)), none of the Company Related Parties shall have any further liability (whether in equity or at law, in contract, in tort or otherwise) with respect to this Agreement or the transactions contemplated hereby to the Parent Related Parties.
(f) Notwithstanding anything to the contrary in this Agreement or the Transaction Documents, but no more than US$200,000subject to Section 8.5, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment of the Parent Termination Fee and any other payment in connection with any Transaction Document or otherwise, of the Parent Related Parties collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise) (A) under this Agreement or any other Transaction Document; (B) in connection with the failure of the Merger (including the Financing) or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (C) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, will not exceed under any circumstances an amount equal to (i) the Parent Termination Fee, plus (ii) the amounts, if any, due and owing under Section 7.3(c), if any, plus (iii) the amounts, if any, due and owing to the Company pursuant to Section 5.11(e) and the proviso to Section 8.2(a) (collectively, the “Parent Maximum Liability Amount”), except with respect to the Company’s rights in connection with claims against the parties to the Confidentiality Agreements.
(g) Notwithstanding anything to the contrary in this Agreement or the Transaction Documents, but subject to Section 8.5, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment of the Company Termination Fee and any other payment in connection with any Transaction Document or otherwise, of the Company Related Parties collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise) (A) under this Agreement or any other Transaction Document; (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (C) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, will not exceed under any circumstances an amount equal to (i) the Parent Termination Fee, plus (ii) the amounts, if any, due and owing under Section 7.3(c), if any, (collectively, the “Company Maximum Liability Amount”), except with respect to Parent’s rights in connection with claims against the parties to the Confidentiality Agreements.
Appears in 1 contract
Samples: Merger Agreement (Arconic Corp)
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) (A) (i) following a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal after the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is subsequently terminated by Parent or the Company or Parent pursuant to Section 8.1(b)(i)Section 8.1(b)(iii) and at the time of the Stockholders’ Meeting a Competing Proposal has been publicly announced after the date of this Agreement and has not been withdrawn, Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve nine (129) months of such terminationtermination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement with providing for the consummation of a Competing Proposal and such third party (or any Affiliate thereof) to consummateCompeting Proposal is subsequently consummated; provided, or consummateshowever, such Alternative Acquisition (as may be amended or supplementedthat for purposes of this Section 8.3(a), the references to “20%” in the definition of Competing Proposal shall be deemed to be references to “50%”;
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii); then the Company shall, (x) in the case of clause (i) above, no later than two Business Days following the date of the announcement of such transaction involving a Competing Proposal, (y) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (z) in the case of clause (iii) and (iv) above, no later than two 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 Parent, the Termination Fee (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.12, Parent’s receipt in full of the Termination Fee pursuant to Section 8.3(a), in circumstances where the Termination Fee is owed pursuant to Section 8.3(a)(i), Section 8.3(a)(ii) or Section 8.3(a)(iii), shall constitute the sole and exclusive monetary 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 of the foregoing (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, including the Merger, 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 any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to Section 8.3(c), as applicable).
(c) Each of the parties 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, except as set forth in Section 8.3(b), 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 Acquisition Proposaltransactions contemplated hereby, pay including the Merger, which amount would otherwise be impossible to Parent calculate with precision and (iii) without these agreements, the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or parties would not enter into this Agreement. Accordingly, if the Company terminates this Agreement fails to timely pay any amount due pursuant to Section 8.1(b)(ii)this Section 8.3 and, then if, at or prior in order to obtain such timepayment, Parent would have the right to commences a Termination Fee pursuant to clause (i) above (provided suit that results in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to judgment against the Company notice with respect to its alleged breach for the payment of Section 6.5 as soon as reasonably practicable after learning of such breach)any amount set forth in this Section 8.3, the Company shall pay to Parent, within two Parent its costs and expenses in connection with such suit (2) Business Days of such termination, the Termination Fee including reasonable attorneys’ fees and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(iiexpenses), together with interest on such amount at the Company shall pay annual rate of 2% plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to Parentbe made through the date such payment was actually received, within ten (10) Business Days of or such termination, lesser rate as is the Parent Expenses but no more than US$200,000maximum permitted by applicable Law.
Appears in 1 contract
Termination Fees. (a) If:
(i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates terminate this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses9.1(d);
(iiiii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of Agreement is terminated by the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior Parent pursuant to the time of the Company Shareholder MeetingSection 9.1(b)(ii), (B) this Agreement is terminated by Parent or the Company or Parent pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(ivSection 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) within twelve this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and after the date hereof but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known, whether or not withdrawn, (12x) months prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination, termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or
(iii) the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates shall terminate this Agreement pursuant to Section 8.1(b)(iiSection 9.1(f). then in any case as described in clause (i), then if(ii) or (iii) the Company shall pay (or cause to be paid) to Parent (by wire transfer of immediately available funds), at or prior to such time, Parent would have (x) in the right to a Termination Fee pursuant to case described in clause (i) above or (provided that iii), $1,000,000,000 (the “Termination Fee”) not later than the date of termination of this Agreement and (y) in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachcase described in clause (ii), the Company shall pay (or cause to Parentbe paid) an amount equal to the Termination Fee not later than the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as such Acquisition Proposal is consummated or such definitive agreement is executed within 12 months after the date of termination of this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%.
(b) If this Agreement is terminated by the Company pursuant to Section 9.1(e), then Parent shall pay (or cause to be paid) to the Company (by wire transfer of immediately available funds) an amount equal to the Chevron Termination Fee within two (2) Business Days after the date of such termination.
(c) Each party acknowledges that the agreements contained in this Section 10.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, no party would have entered into this Agreement. Accordingly, if the Company or Parent fails to pay timely any amount due pursuant to this Section 10.5 and, in order to obtain such payment, the Termination Fee and other party (the Parent Expenses; and
“Recipient”) commences a suit which results in a judgment against the party obligated to make such payment (vthe “Payor”) In for the event that amount payable to the Company terminates this Agreement Recipient pursuant to Section 8.1(b)(ii)this Section 10.5, the Company Payor shall pay to Parentthe Recipient its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, within ten together with interest on the amount so payable at the rate on six (106)-month United States Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) Business Days of such termination, the Parent Expenses but no more than US$200,000plus three percent (3%).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Occidental Petroleum Corp /De/)
Termination Fees. (ia) In the event that Parent terminates this Agreement is terminated (i) by Parent pursuant to Section 8.1(dSection 8.1(c)(ii) (Change of Board Recommendation) or Section 8.1(e(ii) by the Company pursuant to Section 8.1(d)(iii) (Superior Proposal), then the Company shall pay or cause to be paid to Parent (or its designees) a nonrefundable amount in cash equal to $45,000,000 (the “Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by Parent, within payable, in the case of clause (i), no later than two (2) Business Days after the date of such termination and, in the case of clause (ii), in advance of or concurrently with such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiib) In the event that: (A) (i) following the date hereof and , prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer receipt of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publiclyStockholder Approval, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (Bi) this Agreement is terminated by Parent or the Company pursuant to Section Section 8.1(b)(i) (Outside Date), Section 8.1(b)(iiand at such time the conditions set forth in Section 7.1 (other than Section 7.1(a)) were satisfied, or Section 8.1(b)(iii) (Stockholder No Vote); (ii) after the date of this Agreement and prior to the date of termination (in the case of a termination pursuant to Section 8.1(b)(i) (Outside Date)) or Section 8.1(b)(ivthe date of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii) (Stockholder No Vote)), an Acquisition Proposal was publicly proposed or announced or otherwise communicated to the stockholders of the Company and not withdrawn prior to the date of termination (in the case of a termination pursuant to Section 8.1(b)(i) (Outside Date)) or the date of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii) (Stockholder No Vote)); and (Ciii) within twelve (12) 12 months after the date of such termination, termination of this Agreement the Company enters into a definitive written agreement with respect to an Acquisition Proposal and the transaction contemplated by such third party definitive agreement is later consummated, then on the date such transaction is consummated, the Company shall pay or cause to be paid to Parent (or any Affiliate thereofits designees) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(b), each reference to “20%” in the Parent Expenses;definition of “Acquisition Proposal” shall be deemed to be a reference to “50%.”
(ivc) In the The parties agree and understand that in no event that Parent or shall the Company terminates this Agreement pursuant be required to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have pay the right to a Termination Fee pursuant on more than one occasion. Notwithstanding anything to clause the contrary in this Agreement, (i) above (provided that if Parent is entitled to terminate this Agreement and to receive payment of the Termination Fee from the Company pursuant to this Section 8.3, except in the event case of a right intentional fraud, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to a or arising out of this Agreement or the transactions contemplated hereby; and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement.
(d) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. Accordingly, if the Company fails to timely pay the amount due pursuant to termination under Section 8.1(d)this Section 8.3, and, in order to obtain such payment, Parent provided to the Company notice with respect to commences a suit, action or other proceeding that results in a judgment in its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)favor, the Company shall pay to ParentParent its reasonable and documented out-of-pocket costs and expenses (including reasonable out-of-pocket attorneys’ fees and expenses) in connection with such suit, within two (2) Business Days action or other proceeding, together with interest on the amount of such termination, payment from the Termination Fee and date such payment was required to be made until the Parent Expenses; and
(v) In date of payment at a rate per annum equal to the event that prime interest rate published in The Wall Street Journal on the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of date such termination, the Parent Expenses but no more than US$200,000interest begins accruing.
Appears in 1 contract
Termination Fees. (i) In If this Agreement is terminated (A) by Parent pursuant to Section 10.01(c)(i), (B) by Parent pursuant to Section 10.01(c)(ii) that arises out of a Willful Breach of Section 6.03, (C) by the event that Company pursuant to Section 10.01(d)(i), or (D) by the Company pursuant to Section 10.01(b)(iii) at a time when Parent terminates this had the right to terminate the Agreement pursuant to Section 8.1(d) or Section 8.1(eSection 10.01(c)(i), then the Company shall pay to Parent in immediately available funds the Company Termination Fee. The Company Termination Fee shall be payable in the case of a termination (X) by Parent, within two one (21) Business Days Day of such termination and (Y) by the Company, on the date of, and concurrently with, such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: If (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 10.01(b)(i) (but only if the Company Stockholder Meeting has not been held prior to the End Date) or Section 10.01(b)(iii) (and at the time of termination all conditions to the consummation of the Merger set forth in Article 9, other than the condition set forth in Section 9.01(a), Section 8.1(b)(iihave been satisfied or waived) or Section 8.1(b)(ivby Parent pursuant to Section 10.01(c)(ii), (B) an Acquisition Proposal shall have been publicly announced after the date of this Agreement and not withdrawn prior to such termination in the case of termination under Section 10.01(b)(i) or Section 10.01(c)(ii) or prior to the Company Stockholder Meeting in the case of termination under Section 10.01(b)(iii) and (C) within twelve (12) months following the date of such termination, the Company enters or its Subsidiaries enter into an agreement providing for an Acquisition Proposal or an Acquisition Proposal shall have been consummated (provided, that for purposes of this clause (C), each reference to “20%” in the definition of Acquisition Proposal shall be deemed to be a definitive agreement with such third party (or any Affiliate thereof) reference to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented“50%”), then the Company shallshall pay to Parent in immediately available funds, concurrently with the consummation occurrence of the Acquisition Proposalapplicable event described in clause (C), the Company Termination Fee.
(iii) If this Agreement is terminated by the Company pursuant to Section 10.01(d)(ii) or Section 10.01(d)(iii), then Parent shall pay to the Company in immediately available funds $32,138,000 (the “Parent Termination Fee”) promptly, but in no event later than one (1) Business Day after the Termination Fee and the Parent Expenses;date of such termination.
(iv) In the event that If this Agreement is terminated by Parent or pursuant to Section 10.01(b)(i) and the Company terminates would have been entitled to terminate this Agreement pursuant to Section 8.1(b)(iiSection 10.01(d)(ii) or Section 10.01(d)(iii) but for such termination pursuant to Section 10.01(b)(i), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided shall pay to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)in immediately available funds the Parent Termination Fee promptly, the Company shall pay to Parent, within two but in no event later than one (21) Business Days Day after the date of such termination, the Termination Fee and the Parent Expenses; and
(v) In the event that the Company terminates this Agreement pursuant to Section 8.1(b)(ii), the Company shall pay to Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000.
Appears in 1 contract
Termination Fees. (a) Except in the event that this Agreement is terminated in a circumstance where the Reverse Termination Fee is payable, in the event that:
(i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following a Third Party shall have made a Competing Proposal after the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement is subsequently terminated by Parent or (x) the Company or Parent pursuant to Section 8.1(b)(iSection 8.1(b)(iii) or (y) Parent pursuant to Section 8.1(d)(i) and at the time of such Stockholder Meeting in the case of clause (x) or at the time of such breach in the case of clause (y), Section 8.1(b)(ii) or Section 8.1(b)(iv) a Competing Proposal has been publicly announced and has not been withdrawn, and (C) within twelve (12) months of such terminationtermination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement with providing for the consummation of a Competing Proposal and such third party (or any Affiliate thereof) to consummateCompeting Proposal is subsequently consummated; provided, or consummateshowever, such Alternative Acquisition (as may be amended or supplementedthat for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”;
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii); then the Company shall, concurrently with (A) in the consummation case of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d)above, Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach), the Company shall pay to Parent, within no later than two (2) Business Days following the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in the case of clause (iii) above, no later than two (2) 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 Parent, the Termination Fee; it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(b) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(c)(i) (arising from a material breach of the Parent’s covenants set forth in Section 6.11) or Section 8.1(c)(iii) or (ii) the Company or Parent pursuant to Section 8.1(b)(i) if, at the time or prior to such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 8.1(c)(iii), then Parent shall, no later than two (2) 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; 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 the Company’s rights set forth in the next sentence of this Section 8.3(c), Section 8.3(e) and Section 9.9, the Company’s receipt 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 remedy of the Company and its Subsidiaries against Parent, Acquisition Sub, the Guarantor, the Debt Financing Sources or 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 “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, and 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 the transactions contemplated by this Agreement (except that Parent shall also be obligated with respect to the terms of the Confidentiality Agreement, Section 8.3(e), Section 8.3(f) and Section 8.6 and for any of its expense reimbursement and indemnification obligations contained in Section 6.11 and Section 6.12 and the Guarantor shall also be obligated pursuant to the terms and conditions of the Guaranty), and in no event will any of the Company Related Parties seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or award in excess of the Reverse Termination Fee (plus, if applicable, any additional amounts payable pursuant to Section 8.3(e)). Notwithstanding anything in this Agreement to the contrary and without limiting any right of the Company to enforce any other obligations of Parent or Acquisition Sub set forth herein, it is explicitly agreed that the Company shall be entitled to obtain an injunction, or other appropriate form of specific performance or equitable relief, to cause Parent and Acquisition Sub to cause, or for the Company to directly cause, in accordance with its third party beneficiary rights under the Equity Commitment Letter, the Equity Financing to be funded on the terms and subject to the conditions set forth in the Equity Commitment Letter and this Agreement and cause the Closing to occur if, and only if, each of the following conditions has been satisfied: (i) all conditions in Section 7.1 and Section 7.2 (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) have been satisfied at the time when the Closing would have occurred but for the failure of the Equity Financing to be funded, and remain satisfied, (ii) the financing provided for by the Debt Commitment Letter (or, if alternative financing is being used in accordance with Section 6.11(c), pursuant to the commitments with respect thereto) has been funded in accordance with its terms or will be funded at the Closing in accordance with its terms if the Equity Financing is funded at the Closing, and (iii) with respect to any funding of the Equity Financing to occur at the Closing, the Company has irrevocably confirmed that if specific performance is granted and the Equity Financing and Debt Financing are funded, then the Closing will occur. In no event shall the Company be entitled to enforce specifically Parent’s obligation to cause the Equity Financing to be funded (or exercise its third party beneficiary rights under the Equity Commitment Letter) if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the Closing). For the avoidance of doubt, the Company may pursue a grant of specific performance of the type provided in the preceding sentence and the payment of the Reverse Termination Fee under Section 8.3(b); provided that in no event shall the Company be entitled to receive both a grant of specific performance that results in the Closing to occur, on the one hand, and the Reverse Termination Fee, on the other hand.
(d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.9, in circumstances where the Termination Fee is owed pursuant to Section 8.3(a)(i), Section 8.3(a)(ii) or Section 8.3(a)(iii), Parent’s right to receive payment (i) from the Company of the Termination Fee pursuant to Section 8.3(a), in circumstances where the Termination Fee is owed pursuant to Section 8.3(a)(i), Section 8.3(a)(ii) or Section 8.3(a)(iii), and (ii) pursuant to the Section 1.7 of the Stockholder Support Agreement, shall constitute the sole and exclusive 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, 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 contemplated by this Agreement 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 any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to Section 8.3(e) and Section 8.6, as applicable), and in no event will any of the Parent Related Parties seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or award in excess of the Termination Fee (plus, if applicable, any additional amounts payable pursuant to Section 8.3(e)), the Agreed Reimbursement Amount and the fee payable, if any, pursuant to the Stockholder Support Agreement.
(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 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 Expenses; andor 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 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 through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(vf) In the event that If and when the Company terminates this Agreement pursuant to Section 8.1(b)(ii)Termination Fee is payable, the Company shall pay pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, within ten (10) Business Days of such termination, the Parent Expenses but no more than US$200,000Agreed Reimbursement Amount.
Appears in 1 contract
Termination Fees. (i) In the event that Parent terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(e), the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iiia) In the event that: :
(i) this Agreement is validly terminated (A) by the Company pursuant to Section 7.1(h) or (iB) following by Parent pursuant to Section 7.1(g); or
(ii) (A) after the date hereof of this Agreement and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer receipt of the Company of Stockholder Approval, an Acquisition Alternative Proposal (for purposes of this subsection, substituting fifty percent (50% %) for the 10% twenty percent (20%) threshold set forth in the definition of Acquisition “Alternative Proposal”) (the "Alternative Acquisition"a “Qualifying Transaction”) and, if it has not shall have been disclosed publicly, (ii) only if such Acquisition Proposal was publicly made and not withdrawn at or prior to the time of Company Stockholders’ Meeting or publicly disclosed or otherwise announced and not withdrawn prior to the Company Shareholder Stockholders’ Meeting, (B) thereafter this Agreement is validly terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 7.1(b) or Section 7.1(d) or by Parent pursuant to Section 7.1(f), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve at any time on or prior to the nine (12) months 9)-month anniversary of such valid termination, the Company enters or any of its Subsidiaries shall have entered into a definitive agreement for any Qualifying Transaction, which such Qualifying Transaction is subsequently consummated, whether during or following such nine (9)-month period, then, the Company shall pay Parent (or its designees) the Company Termination Fee in immediately available funds to one or more accounts designated by Parent in writing (I) in the case of Section 7.3(a)(i)(A) above, prior to or substantially concurrently with such third party valid termination, (or any Affiliate thereofII) to consummatein the case of Section 7.3(a)(i)(B) above, within three (3) Business Days after valid termination of this Agreement, or consummates(III) in the case of Section 7.3(a)(ii) above, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, substantially concurrently with the consummation of a Qualifying Transaction.
(b) In the Acquisition Proposalevent that:
(i) this Agreement is validly terminated (A) by the Company pursuant to Section 7.1(e) or Section 7.1(i) or (B) by Parent or the Company pursuant to Section 7.1(b) and at such time the Company was entitled to terminate this Agreement pursuant to Section 7.1(e) or Section 7.1(i), then Parent shall pay (or cause to be paid) to the Company the Parent Termination Fee in immediately available funds within three (3) Business Days after the date of such valid termination by Parent or the Company to one or more accounts designated by the Company in writing.
(c) Each party acknowledges that the agreements contained in this Section 7.3 are an integral part of this Agreement and that, without this Section 7.3, Parent (in the case of Section 7.3(a)) or the Company (in the case of Section 7.3(b)) would not have entered into this Agreement. Accordingly, if a party fails to promptly pay any amount due pursuant to Section 7.3(a) or Section 7.3(b), as applicable, the failing party shall pay to the other party all fees, costs and expenses of enforcement (including attorneys’ fees as well as expenses incurred in connection with any action initiated by such party), together with interest on the amount of the Company Termination Fee or the Parent Termination Fee at the prime lending rate as published in the Wall Street Journal, in effect on the date such payment is required to be made (together with the obligations of Parent under the final sentence of Section 5.11(e), the “Additional Obligations”). The parties further acknowledge that neither the Company Termination Fee nor the Parent Termination Fee shall constitute a penalty but is each liquidated damages, in a reasonable amount that will compensate each party 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 Merger, which amount would otherwise be impossible to calculate with precision. Each of the parties hereto acknowledges and agrees that in no event will the Company or Parent be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion, whether or not the Company Termination Fee or the Parent Termination Fee, as applicable, may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence of different events.
(d) Except as expressly set forth in Section 7.3(c), and Section 8.2, upon the payment by the Company of the Company Termination Fee and the Parent Expenses;
(iv) In Additional Obligations, as and when required by Section 7.3(a), none of the event that Parent Company, its Subsidiaries or their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives shall have any further liability with respect to this Agreement or the Company terminates transactions contemplated by this Agreement to Parent, Merger Sub or their respective Affiliates or Representatives, except pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Confidentiality Agreement. Payment of the Company Termination Fee pursuant to clause Section 7.3(a) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or Representatives or any other Person in connection with this Agreement (iand the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) above or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their or their respective Affiliates’ respective former, current or future officers, directors, employees, partners, stockholders, optionholders, managers, members, other Representatives or Affiliates (provided that collectively, “Parent Related Parties”) or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, any of the event of a transactions contemplated by this Agreement or any matters forming the basis for such termination. Parent’s right to a receive payment from the Company of the Company Termination Fee pursuant to Section 7.3(a) and the amounts, if any, due to termination and owing under Section 8.1(dSection 7.3(c), Parent provided Parent’s right to specific performance pursuant to Section 8.5 and Parent’s right to damages as a result of fraud or a Willful Breach by the Company of this Agreement (in each case, subject to the limitations set forth in Section 7.2 and Section 7.3) shall be the sole and exclusive remedy of the Parent Related Parties against the Company notice and its Subsidiaries and any of their or their respective Affiliates’ respective former, current or future officers, directors, employees, partners, stockholders, optionholders, managers, members, other Representatives or Affiliates (collectively, “Company Related Parties”) in respect of this Agreement, the Merger and the transactions contemplated hereby, and upon payment of such amounts, none of the Company Related Parties will have any further monetary liability or obligation to the Parent Related Parties relating to or arising out of this Agreement, the Merger or the transactions contemplated hereby (except that the parties hereto (or their Affiliates), as applicable, will remain obligated with respect to, and the parties hereto (or their Affiliates), as applicable, may be entitled to remedies with respect to, the Confidentiality Agreement). Except with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachParent’s right in connection with claims against the Company pursuant to the Confidentiality Agreement and subject in all respects to Section 7.2, Section 7.3 and Section 8.5 (including, in each case, the limitations set forth therein), upon the payment of the Company Termination Fee to the extent owed pursuant to Section 7.3(a) and the amounts, if any, due and owing under Section 7.3(c), none of the Company Related Parties shall pay have any further liability (whether in equity or at law, in contract, in tort or otherwise) with respect to Parentthis Agreement or the transactions contemplated hereby to the Parent Related Parties. For the avoidance of doubt, within two (2nothing in this Section 7.3(d) Business Days shall limit any remedies of Parent prior to such termination, including specific enforcement pursuant to Section 8.5.
(e) Except as expressly set forth in Section 7.3(c) and Section 8.2, upon the payment by Parent of the Parent Termination Fee and the Parent Expenses; and
(v) In Additional Obligations as and when required by Section 7.3(b), none of Parent, its Subsidiaries or their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives shall have any further liability with respect to this Agreement or the event that transactions contemplated by this Agreement to the Company terminates or its Affiliates or Representatives, other than with respect to the Confidentiality Agreement. Payment of the Parent Termination Fee pursuant to Section 7.3(b) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company, any of its Affiliates or Representatives or any other Person in connection with this Agreement pursuant to Section 8.1(b)(ii(and the termination hereof), the Company shall pay to Parent, within ten transactions contemplated by this Agreement (10and the abandonment thereof) Business Days of or any matter forming the basis for such termination, and none of the Company Related Parties or any other Person shall be entitled to bring or maintain any claim, action or proceeding against Parent, Merger Sub or any of their respective Affiliates arising out of or in connection with this Agreement, any of the transactions contemplated by this Agreement or any matters forming the basis for such termination, except with respect to the Confidentiality Agreement. The Company’s right to receive payment from Parent of the Parent Expenses Termination Fee pursuant to Section 7.3(b) and any Additional Obligations pursuant to Section 7.3(c), the Company’s right to specific performance pursuant to Section 8.5, the Company’s rights in connection with claims against Apollo Management X, L.P. pursuant to the Confidentiality Agreement, the Company’s rights pursuant to and in accordance with the terms of the Guarantee and the Company’s right to damages as a result of fraud or a Willful Breach by Parent or Merger Sub of this Agreement (in each case, subject to the limitations set forth in Section 7.2 and Section 7.3) shall be the sole and exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss 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, except with respect to the Company’s right in connection with claims against Apollo Management X, L.P. pursuant to the Confidentiality Agreement, upon payment of the Parent Termination Fee and any Additional Obligations pursuant to Section 7.3(c), none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, nothing in this Section 7.3(e) shall limit any remedies of the Company prior to such termination, including specific enforcement pursuant to Section 8.5; provided that, in no event shall the Company be entitled to receive both (i) an order for specific performance or any other equitable remedy of the type contemplated by Section 8.5 to cause the consummation of transactions contemplated hereby (including the Merger) to occur and (ii) the Parent Termination Fee pursuant to Section 7.3(b).
(f) Notwithstanding anything to the contrary in this Agreement or the Transaction Documents, but no more than US$200,000subject to Section 8.5, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment of the Company Termination Fee and any other payment in connection with any Transaction Document or otherwise, of the Company Related Parties collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise) (A) under this Agreement or any other Transaction Document; (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (C) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, will not exceed under any circumstances an amount equal to (i) the Parent Termination Fee, plus (ii) the amounts, if any, due and owing under Section 7.3(c), if any, (collectively, the “Company Maximum Liability Amount”), except with respect to Parent’s rights in connection with claims against the Company pursuant to the Confidentiality Agreement.
(g) Notwithstanding anything to the contrary in this Agreement or the Transaction Documents, but subject to Section 8.5, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise of the Parent Related Parties collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise) (i) under this Agreement or any other Transaction Document; (ii) in connection with the failure of the Merger (including the Financing) or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (iii) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, will not exceed under any circumstances an amount equal to (A) the Parent Termination Fee plus (B) the Additional Obligations, if any, due and owing under Section 7.3(c) (collectively, the “Parent Maximum Liability Amount”), except with respect to the Company’s rights in connection with claims against Apollo Management X, L.P. pursuant to the Confidentiality Agreement.
Appears in 1 contract
Samples: Merger Agreement (Barnes Group Inc)
Termination Fees. Notwithstanding any provision in this Agreement to the contrary:
(a) If (i) In the event that Parent terminates this Agreement is terminated by the Company pursuant to Section 8.1(dSection 8.1(g), (ii) this Agreement is terminated by Parent pursuant to Section 8.1(h) or Section 8.1(e(iii) at any time after the date of this Agreement, (A) a Company Alternative Proposal is publicly proposed or disclosed by a Person or group making such Company Alternative Proposal (or, in the case of a termination pursuant to clause (x) or (z) below, is publicly proposed or disclosed or otherwise communicated to the Board of Directors of the Company) prior to and not withdrawn at the time of the Company Meeting, and (B) this Agreement is terminated (x) by Parent or the Company pursuant to Section 8.1(b) (if the Company Meeting shall not have occurred), (y) by Parent or the Company pursuant to Section 8.1(d), or (z) by Parent pursuant to Section 8.1(f) (but only if such termination relates to a breach of or failure to perform the Company’s obligations pursuant to Section 6.3 or the second to last sentence of Section 6.4(d)), and (C) prior to the first anniversary of the termination of this Agreement, any definitive agreement providing for a Qualifying Transaction shall have been entered into (irrespective of whether such agreement was entered into with the same Person or group who made the Company Alternative Proposal referred to in clause (A) above), then in any such event described in Section 8.3(a)(i), Section 8.3(a)(ii) or Section 8.3(a)(iii), the Company shall pay to ParentParent the Termination Fee in cash by wire transfer in immediately available funds, such payment to be made in the case of (1) Section 8.3(a)(i) as a condition to the termination of this Agreement, (2) Section 8.3(a)(ii) within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;
(iii) In the event that: (A) (i) following the date hereof and prior to the termination of this Agreement, there has been disclosure publicly or Agreement and (3) Section 8.3(a)(iii) within two Business Days following the execution of any definitive agreement in respect of a Qualifying Transaction. It is understood and agreed that in no event shall the Company be required to any member pay the Termination Fee on more than one occasion. After payment of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition Proposal) (the "Alternative Acquisition") and, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time of the Company Shareholder Meeting, (B) this Agreement Termination Fee is terminated by Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve (12) months of such terminationmade, the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay shall have no further liability to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice Merger Sub with respect to its alleged this Agreement or the transactions contemplated hereby, including the Merger (except liability arising out of an intentional material breach of Section 6.5 this Agreement or fraud or as soon as reasonably practicable after learning of such breachprovided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity).
(b) If the Company fails to pay Parent any amount required to be paid pursuant to this Section 8.3 when due, the Company shall pay to Parentthe costs and expenses (including reasonable and documented out-of-pocket legal fees and expenses) incurred by Parent in connection with the collection under and enforcement of this Section 8.3, within two and shall pay interest on any such amount not paid when due at the rate of 5% per annum from the applicable date such amount became due and owing through and including the date of payment (2calculated on the basis of a 360-day year).
(c) Business Days Each of such terminationthe Company, Parent and Merger Sub acknowledge and agree that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, including the Merger, and that, without these agreements, Parent would not enter into this Agreement. Parent and the Company agree that the Termination Fee does not constitute a penalty, but is liquidated damages in a reasonable amount that will compensate Parent, in the circumstances in which the Termination Fee is payable, for the efforts and resources expended and the Parent Expenses; and
(v) In the event that the Company terminates opportunities foregone while negotiating this Agreement pursuant and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, including the Merger, which amount would otherwise be impossible to Section 8.1(b)(ii)calculate with precision. Notwithstanding anything to the contrary in this Agreement, except in the Company case of liability of a party for intentional material breach of this Agreement or for fraud or under the Confidentiality Agreement, receipt of payment of the amounts set forth in this Section 8.3 shall pay to be the sole and exclusive remedy of Parent, within ten (10) Business Days Merger Sub and their Affiliates and their respective directors, officers, employees, agents, shareholders, stockholders, general or limited partners, managers, members, representatives or assignees, in each case whether former, current or future, for any loss or damage suffered as a result of such terminationthe failure of the transactions contemplated hereby, including the Parent Expenses but no more than US$200,000Merger, to be consummated.
Appears in 1 contract
Samples: Merger Agreement (UTi WORLDWIDE INC)
Termination Fees. (ia) In the event that Parent terminates this Agreement is terminated by the Company pursuant to Section 8.1(d) or Section 8.1(eSection 9.1(c)(ii), then the Company shall pay to Parent, within two (2) Business Days of such termination, the Termination Fee and the Parent Expenses.
(ii) In the event that the Company terminates this Agreement pursuant to Section 8.1(c) the Company shall, simultaneously with such termination, pay to Parent the Termination Fee and Parent Expenses;concurrently with any such termination.
(iiib) In the event that: (A) that (i) following the date hereof this Agreement is terminated by Parent pursuant to Section 9.1(d)(ii) and prior to the termination of this Agreement, there has been disclosure publicly or to any member of the Board of Directors or any officer of the Company of an Acquisition Proposal (for purposes of is not entitled to terminate this subsection, substituting 50% for the 10% threshold set forth in the definition of Acquisition ProposalAgreement pursuant to Section 9.1(c)(i) (the "Alternative Acquisition") and, if it has not been disclosed publicly, or (ii) only if such Acquisition Proposal was not withdrawn at or prior this Agreement is terminated by Parent pursuant to Section 9.1(d)(iii), then the time Company shall pay to Parent the Termination Fee within three (3) Business Days after the date of termination.
(c) In the event that all of the Company Shareholder Meeting, following occur: (Bi) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iSection 9.1(b)(iii) or 9.1(d)(i) (in connection with a Willful Breach of the Company’s covenants in Section 7.1(a), Section 8.1(b)(ii(ii) at any time after the date of this Agreement and prior to the Company Shareholder Meeting, an Acquisition Proposal shall have been publicly announced and such Acquisition Proposal is not in good faith withdrawn or Section 8.1(b)(ivterminated at least five (5) Business Days prior to the Company Shareholder Meeting, and (Ciii) within twelve nine (129) months of after such termination, the Company or any of its Subsidiaries enters into a definitive agreement with such third party (or any Affiliate thereof) to consummaterespect to, or consummates, any Acquisition Proposal (with references to “25%” in such Alternative Acquisition (as may be amended or supplementeddefinition replaced with “50%”), then the Company shall, concurrently with the consummation of the Acquisition Proposal, shall pay to Parent the Termination Fee and Fee, within three (3) Business Days following the Parent Expenses;earlier of the execution of such agreement or consummation of such Acquisition Proposal.
(ivd) In the event Any amount that Parent or the Company terminates this Agreement becomes payable pursuant to Section 8.1(b)(ii), then if, at or prior this Section 9.2 shall be paid by wire transfer of immediately available funds to such time, Parent would have an account designated by Parent.
(e) Upon payment of the right to a Termination Fee pursuant to clause (i) above (provided that in the event of a right to a Termination Fee due to termination under Section 8.1(d), Parent provided to the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breach)this Section 9.2, the Company shall pay have no further liability with respect to this Agreement or the transactions contemplated hereby to Parent, within two (2) Business Days of such termination, Merger Sub or their respective shareholders. The parties acknowledge and agree that in no event shall the Company be required to pay the Termination Fee and on more than one occasion. In addition, the Parent Expenses; and
(v) In the event parties acknowledge that the Company terminates agreements contained in this Agreement Section 9.2 are an integral part of the transactions contemplated by this Agreement, that without these agreements the Company, Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to Section 8.1(b)(ii)this Section 9.2 do not constitute a penalty. If the Company fails to pay Parent the Termination Fee when due, the Company shall also pay to ParentParent interest on the unpaid amount under this Section 9.2, within ten (10) Business Days accruing from its due date, at an interest rate per annum equal to two percentage points in excess of the prime commercial lending rate quoted by The Wall Street Journal. Any change in the interest rate hereunder resulting from a change in such prime rate will be effective at the beginning of the date of such termination, the Parent Expenses but no more than US$200,000change in such prime rate.
Appears in 1 contract
Termination Fees. (ia) In the event that Parent terminates this Agreement is terminated:
(i) (A) (x) by Parent, Merger Sub or the Company pursuant to Section Section 8.1(b)(i) (and at the time of any such termination the conditions set forth in Section 7.1(b) and Section 7.1(c) have been satisfied), or (y) by Parent or Merger Sub pursuant to Section 8.1(c), and (B) (x) an Acquisition Proposal by a Third Party shall have been publicly announced after the date of this Agreement and not withdrawn prior to such termination and (y) within 12 months after such termination (1) the Company enters into a definitive agreement with respect to an Acquisition Proposal that is later consummated or (2) an Acquisition Proposal (in the case of each of clauses (1) and (2), whether or not involving the same Acquisition Proposal which was made after the date of this Agreement) is consummated (with all references to 25% in the definition thereof being treated as references to 50.1% for purposes of this Section 8.3(a));
(ii) by Parent or Merger Sub pursuant to Section 8.1(d); or
(iii) or Section 8.1(eby the Company pursuant to Section 8.1(f); then, in any such event, the Company shall pay Parent the Company Termination Fee, which amount shall be payable by wire transfer of immediately available funds to an account designated in writing by Parent. The Company Termination Fee shall be paid (x) in the circumstances described in clause (i) above, promptly (but in no event later than three (3) business days) following the consummation of such Acquisition Proposal, (y) in the circumstances described in clause (ii) above, within two three (23) Business Days business days of such the termination, and (z) in the circumstance described in clause (iii) above, substantially concurrently with and as a condition to the termination.
(b) In the event that this Agreement is terminated:
(i) by the Company pursuant to Section 8.1(e) or Section 8.1(g); or
(ii) by Parent or Merger Sub pursuant to Section 8.1(b)(i), and at such time the Company could have validly terminated this Agreement pursuant to Section 8.1(e) or Section 8.1(g); then, in any such event, Parent shall pay the Company the Parent Termination Fee, which amount shall be payable by wire transfer of immediately available funds, (x) in the case of any such termination by Parent or Merger Sub, concurrently with and as a condition to the termination by Parent and (y) in the case of any such termination by the Company within three (3) business days of the termination, in each case to an account designated in writing by the Company.
(c) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto expressly acknowledges and agrees on behalf of itself and its respective affiliates that each of the Company Termination Fee and the Parent ExpensesTermination Fee is not a penalty, but rather each is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, respectively, in the circumstances in which the Company Termination Fee or the Parent Termination Fee, respectively, is payable for the efforts, expenses and resources expended and opportunity forgone 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. Each of the parties hereto expressly acknowledges and hereby agrees that the provisions of this Section 8.3 are an integral part of the Transactions, and that, without such provisions, neither Parent, Merger Sub nor the Company would have entered into this Agreement.
(iid) In Notwithstanding anything to the event contrary set forth in this Agreement, each of the parties hereto expressly acknowledges and agrees that Parent’s right to receive payment of the Company terminates Termination Fee pursuant to this Section 8.3, in circumstances in which the Company Termination Fee is payable, plus, if applicable, the Enforcement Costs, shall constitute the sole and exclusive monetary remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise) of Parent, Merger Sub, the Sponsor and their respective affiliates and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, trustees, officers, employees, agents or affiliates or any sources of Equity Financing or Debt Financing, or any lead arranger, arranger, agent or Representative of, or to, Parent, Merger Sub or the Sponsor (collectively, the “Parent Related Parties”) against the Company and the Company Subsidiaries and their respective affiliates and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents or affiliates (collectively, the “Company Related Parties”) and any person who pays the Company Termination Fee on the Company’s behalf for all any and all losses, claims, damages, liabilities, costs, fees, expenses (including reasonable attorney’s fees and disbursements), judgments, inquiries and fines suffered in respect of this Agreement or any contract or agreement executed in connection herewith and the transactions contemplated hereby and thereby (including in respect of any breach, whether or not willful or intentional, of any representation, warranty, covenant or agreement or the failure of the Merger to be consummated) or the Transactions in such circumstances, and upon payment of the Company Termination Fee, if due, to Parent pursuant to this Section 8.1(c) 8.3, none of the Company shallRelated Parties shall have any further liability or obligation to any of the Parent Related Parties relating to or arising out of this Agreement or the Transactions. For the avoidance of doubt, simultaneously in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. No Parent Related Party shall be entitled to, and Parent shall not and shall cause any Parent Related Party not to, bring or maintain any Action for money damages against any Company Related Party (other than the Company solely for payment of the Company Termination Fee and if applicable, Enforcement Costs) arising out of or in connection with this Agreement, any contract or agreement executed in connection herewith or any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, pay and Parent shall use its reasonable best efforts to cause any Action pending in connection with this Agreement, any contract or agreement executed in connection herewith or any of the transactions contemplated hereby or thereby, to the extent maintained by Parent or any Parent Related Party against the Company or any Company Related Party to be dismissed with prejudice promptly following the payment of the Company Termination Fee, if due, or the final and non-appealable determination that no such payment is due. For the avoidance of doubt, each of the parties hereto expressly acknowledges and agrees that none of the foregoing nor anything else contained in this Agreement is intended to limit Parent and Merger Sub’s right to seek monetary damages from the Company in the event of the Company’s willful and material breach of this Agreement in circumstances in which the Company Termination Fee and Parent Expenses;is not payable; provided, that for the avoidance of doubt, in no event shall the Company’s aggregate liability under this Agreement exceed the Company Termination Fee, plus Enforcement Costs (if any).
(iiie) In Notwithstanding anything to the event that: (A) (i) following the date hereof contrary set forth in this Agreement and subject to Section 9.6 prior to the termination of this Agreement, there has been disclosure publicly or to any member each of the Board parties hereto expressly acknowledges and agrees that the Company’s right to receive payment of Directors the Parent Termination Fee pursuant to this Section 8.3, in circumstances in which the Parent Termination Fee is payable, plus, if applicable, the Enforcement Costs and any amounts payable pursuant to Section 6.19(d) shall constitute the sole and exclusive monetary remedy (whether based in contract, tort or strict liability, by the enforcement of any officer assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise) of the Company of an Acquisition Proposal Related Parties against the Parent Related Parties and any person who pays the Parent Termination Fee on Parent’s behalf for all any and all losses, claims, damages, liabilities, costs, fees, expenses (for purposes including reasonable attorney’s fees and disbursements), judgments, inquiries and fines suffered in respect of this subsectionAgreement or any contract or agreement executed in connection herewith (including with respect to the Equity Commitment Letter and the Limited Guaranty) and the transactions contemplated hereby and thereby (including in respect of any breach, substituting 50% whether or not willful or intentional, of any representation, warranty, covenant or agreement or the failure of the Merger to be consummated) or the Transactions in such circumstances, and upon payment of the Parent Termination Fee, if due, to the Company pursuant to this Section 8.3, none of the Parent Related Parties shall have any further liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement or the Transactions. For the avoidance of doubt, in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. No Company Related Party shall be entitled to, and the Company shall not and shall cause any Company Related Party not to, bring or maintain any Action for money damages against any Parent Related Party (other than Parent, Merger Sub or Sponsor solely to the 10% threshold extent set forth in the definition Limited Guaranty for payment of Acquisition Proposalthe Parent Termination Fee and if applicable, Enforcement Costs and any amounts payable pursuant to Section 6.19(d), or for any breaches of such person for any breaches of the Confidentiality Agreement) arising out of or in connection with this Agreement, any contract or agreement executed in connection herewith (including with respect to the Equity Commitment Letter and the Limited Guaranty) or any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and the Company shall use its reasonable best efforts to cause any Action pending in connection with this Agreement, any contract or agreement executed in connection herewith (including with respect to the Equity Commitment Letter and the Limited Guaranty) or any of the transactions contemplated hereby or thereby, to the extent maintained by the Company or any Company Related Party against Parent or any Parent Related Party to be dismissed with prejudice promptly following the payment of any such amounts, if due, or the final and non-appealable determination that no such payment is due. For the avoidance of doubt, the maximum aggregate monetary liability of any Parent Related Party, if any, shall be limited to the amount of the Parent Termination Fee, plus Enforcement Costs (if any) and any amounts payable pursuant to Section 6.19(d) (the "Alternative Acquisition") and“Parent Liability Limitation”). Notwithstanding the foregoing, if it has not been disclosed publicly, (ii) only if such Acquisition Proposal was not withdrawn at or prior to the time each of the Company Shareholder Meeting, parties hereto expressly acknowledges and agrees that (Bi) none of the foregoing nor anything else contained in this Agreement is terminated by intended to limit the Company’s right to seek monetary damages from Parent or the Company pursuant to Section 8.1(b)(i), Section 8.1(b)(ii) or Section 8.1(b)(iv) and (C) within twelve (12) months of such termination, the Company enters into a definitive agreement with such third party (or any Affiliate thereof) to consummate, or consummates, such Alternative Acquisition (as may be amended or supplemented), then the Company shall, concurrently with the consummation of the Acquisition Proposal, pay to Parent the Termination Fee and the Parent Expenses;
(iv) In the event that Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii), then if, at or prior to such time, Parent would have the right to a Termination Fee pursuant to clause (i) above (provided that Merger Sub in the event of Parent’s or Merger Sub’s willful and material breach of this Agreement in circumstances in which the Parent Termination Fee is not payable; provided, that for the avoidance of doubt, in no event shall Parent’s or Merger Sub’s aggregate liability under this Agreement exceed the Parent Liability Limitation, and (ii) this Section 8.3(e) will not limit the rights of the Company under the Confidentiality Agreement or relieve Parent, Merger Sub or any Sponsor from liability for any breaches of the Confidentiality Agreement (to the extent such persons are party to the Confidentiality Agreement). Notwithstanding anything to the contrary in this Agreement, the Company will be entitled to an injunction, specific performance or other equitable relief as provided in Section 9.6 prior to the termination of this Agreement, except that, although the Company, in its sole discretion, may determine its choice of remedies under this Agreement, including by pursuing specific performance in accordance with Section 9.6 (and, if the Company elects, doing so concurrently with seeking monetary damages and/or payment of the Parent Termination Fee), under no circumstances shall the Company be permitted or entitled to receive both a right grant of specific performance of the obligation to close contemplated by Section 9.6 and any money damages, including all or any portion of the Parent Termination Fee. The Lenders and their respective affiliates and any Parent Related Party are express third party beneficiaries of the provisions of this Section 8.3(e), may enforce this Section 8.3(e) directly, and this Section 8.3(e) may not be amended, modified or supplemented by the parties hereto in any manner adverse to the Lenders or their respective affiliates without the prior express written consent of the Lenders.
(f) If (i) the Company fails to pay in a timely manner the Company Termination Fee due pursuant to termination under Section 8.1(dSection 8.3(a), and, in order to obtain such payment, Parent provided to makes a claim that results in a judgment for the Company notice with respect to its alleged breach of Section 6.5 as soon as reasonably practicable after learning of such breachTermination Fee (or a portion thereof) set forth in Section 8.3(a), the Company shall pay to ParentParent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, within two (2) Business Days of such termination, together with interest on the Company Termination Fee and at the prime rate of Citibank, N.A. in effect from time to time from the date such payment was required to be made hereunder or (ii) Parent fails to pay in a timely manner the Parent Expenses; and
(v) In the event that the Company terminates this Agreement Termination Fee due pursuant to Section 8.1(b)(iiSection 8.3(b), and, in order to obtain such payment, the Company makes a claim that results in a judgment for the Parent Termination Fee (or a portion thereof) set forth in Section 8.3(b), Parent shall pay to Parentthe Company its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, within ten together with interest on the Parent Termination Fee at the prime rate of Citibank, N.A. in effect from time to time from the date such payment was required to be made hereunder (10) Business Days of such terminationas applicable, the Parent Expenses but no more than US$200,000“Enforcement Costs”).
(g) Any fee or other amount payable pursuant to this Section 8.3 shall be paid free and clear of all deductions and withholdings.
Appears in 1 contract
Samples: Merger Agreement (Anaplan, Inc.)
