Topping Fee. If the Board of Directors of Larizza terminates this Agreement and abandons the Merger pursuant to Section 5.1(f), or if the Board of Directors of Parent or Acquisition terminates this Agreement and abandons the Merger pursuant to Section 5.1(g)(i) or (ii), then Parent shall receive from Larizza the sum (the "Topping Fee") of (i) $4,300,000 and (ii) the amount, not to exceed $1,700,000, of all costs and expenses incurred by Parent and Acquisition relating to this Agreement, the transactions contemplated hereby and the financing therefor, including without limitation, the fees, disbursements and charges of counsel to Parent, Acquisition and any financing source for which Parent or any of its affiliates is responsible, financial advisory fees (not in excess of customary financial advisory fees if payable to affiliated entities), accounting fees and expenses, due diligence costs, and all other out-of-pocket fees, costs and expenses. Notwithstanding any other provision hereof, Larizza will not have the right to terminate this Agreement under Section 5.1(f) unless the Topping Fee has been paid in full prior thereto.
Topping Fee. In the event that (i) this Agreement is terminated pursuant to Section 8.1(c) and (ii) within the 12 months following such termination a National Possible Alternative is consummated which is more beneficial than the transactions contemplated by this Agreement, taken as a whole, to the holders of National Common Units other than the National MGP and its affiliates, then the National MLP shall pay to the Purchaser, within three days of such consummation, a topping fee equal to $6.0 million (inclusive of any amounts previously paid by the National MLP pursuant to Section 8.2(b) hereof). If the transaction does not involve the acquisition of substantially all of the interests in or assets of the National MLP or the National OLP, then the calculation of the amount to be paid in excess of amounts paid pursuant to Section 8.2(b) shall be adjusted on a pro rata basis.
Topping Fee. If, prior to December 31, 1997, Incentive or SIH or any of their affiliates sells or agrees to sell any SIH Shares at a price in excess of the Purchase Price, which sale or agreement relates to any Acquisition Proposal made after October 30, 1996 and prior to March 31, 1997, Incentive and SIH will, jointly and severally, be obligated to pay to Vestar, Harvard, and AIP on a pro rata basis (based on the percentage of the total number of SIH Shares to be purchased by Vestar, Harvard and AIP which is to be purchased by each such party), promptly following the consummation of such sale and by wire transfer of immediately available funds, an amount, for each SIH Share so sold, equal to 45% of the excess of (i) the price received by Incentive or SIH or any of their affiliates for such SIH Share over (ii) $11.00; provided that no amount shall be payable to Vestar, Harvard or AIP if this Agreement shall have been terminated by Buyer pursuant to Section 8.1(a)(ii) because any of the conditions set forth in Sections 7.2(f) and 7.2(g) shall not have been satisfied. If all or a portion of the price received by Incentive or SIH or any of their affiliates for SIH Shares is paid in a form other than cash, including any right to receive a contingent payment, the amount of consideration received by Incentive or SIH or any of their affiliates shall be deemed to be the amount of any cash consideration and the fair market value of any non-cash consideration on the date of consummation of the sale of the SIH Shares. Such fair market value shall be determined (A) mutually by Incentive, Vestar and Harvard or (B) if Vestar, Harvard, and Incentive cannot so agree within 30 days, by a nationally recognized New York based United States investment banking firm selected by Vestar and Harvard from a list of three such firms prepared by Incentive. The fees and expenses of such investment banking firm shall be borne 50% by Incentive and 50% by Vestar, Harvard and AIP on a pro rata basis (based on the percentage of the total number of SIH Shares to be purchased by Vestar, Harvard and AIP which is to be purchased by each such party).
Topping Fee. (a) In the event that any Topping Fee Event shall occur, each Stockholder shall pay to Parent any Topping Fee due to Parent with respect to his or its Shares in connection with such Topping Fee Event. Payment of Topping Fees to Parent shall be due immediately following the consummation of the related Topping Fee Event and shall be payable in immediately available funds by wire transfer to the account designated in writing by Parent; provided that if the Selling Price is payable in a form other than cash ("Non-Cash Consideration") and the Stockholders are legally prohibited from selling the Non-Cash Consideration into the market, the Stockholders, at their option, may pay a pro rata portion of the Topping Fee in the same form of consideration as the Non-Cash Consideration so long as Parent is granted registration rights with respect to the Non-Cash Consideration on terms no less favorable than the registration rights, if any, granted to any of the Stockholders. For the avoidance of doubt, Topping Fees shall be payable, from time to time, upon the occurrence of each Topping Fee Event.
(b) For purposes of this Section 4.2, the following terms shall have the following meanings:
Topping Fee. In the event this Agreement is terminated and within one (1) year thereafter substantially all of the Assets or substantially all of the assets or capital stock of Seller are sold (through a sale of assets, sale of stock, merger, consolidation, exchange or otherwise) pursuant to an Alternative Transaction, and provided this Agreement has not been terminated because of a material breach of Buyer's obligations, representations or warranties hereunder, thereupon Seller will pay to Buyer Eight Hundred Thousand Dollars ($800,000) in immediately available funds.
Topping Fee. (a) If, within three months from the date hereof, and if USWeb has not willfully breached any material provision of this Agreement, an Acquisition Event (as hereinafter defined) has (i) been consummated by an entity other than USWeb or its wholly-owned subsidiaries or (ii) been offered to the Seller or the Seller's Holders at a price in excess of the price set forth herein and Seller's Holders subsequently do not approve the transactions contemplated by this Agreement, then Seller shall pay to USWeb (by wire transfer of immediately available federal funds to an account designated by USWeb for such purpose) the sum of $20,000,000 (the "Topping Fee") on the second business day following the occurrence of the Acquisition Event. As used herein, an "Acquisition Event" shall mean acquisition of all or substantially all the business of Seller, whether by merger, sale of assets, consolidation, business combination, or otherwise.
(b) For a period of three months following the date hereof, the Seller agrees that it will not enter into any agreement with a USWeb Competitor (as defined below), or any person or entity with respect to Section 14.03(b)(ii) hereof, pursuant to which (i) the Seller grants to such USWeb Competitor rights to any Seller Intellectual Property Rights, (ii) the Seller grants to such person or entity any right to acquire an equity interest in Seller, (iii) Seller establishes a joint marketing, product development or other similar relationship with a USWeb Competitor or (iv) the Seller establishes any other material relationship with a USWeb Competitor, in each case other than sales of products or services in the ordinary course, unless Seller shall have first complied with the provisions of this Section 14.03. Before entering into any such agreement or relationship with a USWeb Competitor, the Seller shall first negotiate in good faith with USWeb for a period of up to 30 days to enter into such an agreement or establish such a relationship. In the event Seller and USWeb are unable to negotiate a mutually acceptable agreement or relationship within such 30 day period, the Seller shall thereafter be free to enter into a relationship or agreement with a USWeb Competitor on terms which, when considered as a whole, are no more favorable to such USWeb Competitor than the most favorable terms offered to USWeb by Seller during the 30 day negotiation period referenced above. As used herein, "USWeb Competitor" shall mean any entity with annual revenues in ...
Topping Fee. In the event that any Topping Fee Event shall ----------- occur, Childs shall pay to the Securityholders any Topping Fee due to the Securityholders in connection with such Topping Fee Event. Payment of such Topping Fee to the Securityholders shall be due immediately following the consummation of the related Topping Fee Event and shall be payable in immediately available funds by wire transfer to accounts designated in writing by the Securityholders.
Topping Fee. If, without mutual consent, the Closing has not ----------- occurred on or prior to the Closing Date, and if prior to the Closing Date:
(i) Target, or its shareholders, publicly announce, enter into a letter of intent relating to, enter into a definitive agreement providing for, or consummate, a transaction which, as announced, or as provided in such letter or agreement or as consummated, provides for or relates to (including all prior distributions to shareholders after the date hereof) the disposition of a controlling interest in Target, or the sale, transfer or other distribution of assets constituting a majority (measured by fair market value) of the consolidated assets of Target, Target agrees to pay Parent the sum of $2,000,000. If the Closing has not occurred on or prior to the Closing Date because Subsidiary, or its shareholders, have entered into a letter of intent relating to, entered into a definitive agreement providing for, or consummated, a transaction which prohibits the merger contemplated herein, Parent agrees to pay Target the sum of $4,500,000.
(ii) Subsidiary is prepared to close but Target does not close and all conditions of closing by Target have been either met by Target or waived by Subsidiary and/or Parent, Target agrees to pay Parent the sum of $2,000,000 in addition to any amounts owing pursuant to subsection (b) above IF, within six months of the scheduled Closing Date, Target or its shareholders, directly or indirectly (in one or a series of transactions), enters into an agreement with either Xxxxxx CVG or a party that was in contact with Target on or after the date of this Agreement and prior to the scheduled Closing Date, pursuant to which: (a) Target sells substantially all of its assets, (b) Target merges with or has more than fifty percent (50%) of its issued and outstanding shares sold or exchanged, or (c) Target undertakes any debt or equity financing (including prepaid royalties) or any combination thereof, of at least $500,000.
Topping Fee. 44 ASSET PURCHASE AGREEMENT Page iii
Topping Fee. If, after entry of the Bidding Protections Order (as defined below), (i) this Agreement has not been terminated pursuant to Sections 9.3(a), 9.3(b), 9.3(f), 9.3(g) or 9.3(h), (ii) Purchaser is not then in default of any material obligation hereunder which would excuse performance hereunder by the Sellers and (iii) the Sellers shall accept an offer and enter into an agreement which provides for a G&G Superior Proposal, then Pegasus Investors, L.P. shall, without further court order, be entitled to receive a fee equal to 2% of Purchase Price (the "Topping Fee"); provided, however that if at the hearing to sell all or substantially all of the Business a G&G Superior Proposal is made and the Purchaser revises its offer to purchase the Purchased Assets, Pegasus Investors, L.P. shall be entitled to receive only the Expense Reimbursement as provided below. The Topping Fee shall be payable within five (5) days of the consummation of a G&G Superior Proposal.
