Break-Up Fee Clause Samples
A Break-Up Fee clause establishes a financial penalty that one party must pay to the other if a proposed transaction, such as a merger or acquisition, does not proceed to completion under certain specified circumstances. Typically, this fee is triggered if the seller accepts a competing offer or otherwise fails to close the deal as agreed. The clause is designed to compensate the disappointed party for the time, resources, and opportunity costs incurred during negotiations, and to discourage parties from abandoning the transaction without good reason.
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Break-Up Fee. On the date the Petitions are filed (the "Petition Date"), RAG shall file a motion (after consulting with and obtaining the input from counsel to UDC) seeking a hearing date on approval of the Transition Agreement in the form attached hereto as Exhibit B, and the Break-Up Fee (as defined below) on or before the tenth day following the Petition Date. Such motion shall request the UDC's claim for the Break-Up Fee be afforded status as a superpriority administrative claim secured by a lien on the Reliance Entities' assets. The Bankruptcy Court order approving the Transition Agreement and the Break-Up Fee shall be reasonably satisfactory in form and substance to each Party hereto (the "Break-Up Fee Order"). The Reliance Entities shall pay to UDC a $2,000,000 fee (the "Break-Up Fee") in the event that after the Bankruptcy Court has entered the Break-Up Fee Order, (a) RAG and UDC execute and deliver the Warrant Agreement and (b)(i) UDC terminates the Transition Agreement, the Servicing Agreement or this Agreement by written notice after the Reliance Entities materially breach the Transition Agreement or this Agreement at any time or the Servicing Agreement prior to the effective date of the Consensual Plan, as applicable (provided that at such time UDC is not then in breach of any of such Agreements); or (ii) the Transactions are not consummated solely as a result of the Reliance Entities' entering into an alternative transaction with a counterparty other than UDC; it being understood that the conditions described in clauses (a) and (b) shall not be satisfied if the Transactions are not consummated due to the failure of a condition to Closing set forth in paragraph 6 below to have been satisfied. UDC shall pay to the Reliance Entities a $2,000,000 fee (the "Reliance Break-Up Fee") in the event that after the Bankruptcy Court has entered the Break-Up Fee Order, the Reliance Entities terminate the Transition Agreement, the Servicing Agreement or this Agreement by written notice after UDC materially breaches the Transition Agreement or this Agreement at any time or the Servicing Agreement prior to the effective date of the Consensual Plan, as applicable (provided that at such time the Reliance Entities are not then in breach of any of such Agreements).
Break-Up Fee. In the event that (a) this Agreement terminates pursuant to Section 4.4(e) by Purchaser or pursuant to Section 4.4(h), and (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount (the “Break-Up Fee”) equal to the Cash Amount multiplied by the greater of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage (as defined below). The Break-Up Fee shall be paid in cash concurrently with the consummation (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement, and shall be paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (whic...
Break-Up Fee. In the event that (1) a Definitive Agreement is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination of the Definitive Agreement, as the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisions.
Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount of $131,303,723 (the “Break-up Fee”).
(b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation.
(c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Af...
Break-Up Fee. If Ontro fails to close a committed purchase of Shares for no less then $1.00 per share from a Purchaser who is ready, willing, and able to purchase Shares constituting directly or indirectly a minimum of 200,000 Shares for a minimum of $200,000 up to a maximum of 1,600,000 Shares for $1,600,000, and such purchase is on other terms that are acceptable to Ontro, which acceptance shall not be unreasonably withheld, then Ontro shall pay Aura the fees set forth in paragraph A. 2 above notwithstanding Ontro did not receive the funds or sell the Shares. The Performance Warrant issued to Aura in such case shall have all of the same registration rights and other rights set forth in Section C, below.
Break-Up Fee. (a) Notwithstanding the provisions above, other than with respect to the failure of: (1) the SEC to provide to the Purchaser its notice of no further comments to the Proxy Statement, (2) Nasdaq to complete the review required for the Merger and to approve the listing; or (3) the Purchaser to take the actions to comply with the obligations as set forth in Section 6.9 above, in the event that (i) the Closing does not take place by March 28, 2025 or a later date as extended by the Purchaser under Section 6.9 above, due to any material delay (including the failure of the Company to deliver the 2021 Financial Statements and/or 2022 or 2023 Financial Statements and/or Acquisition Target Company Audited Financials pursuant to Section 7.9 hereof) (provided such delay does not cause the Purchaser to liquidate under the SPAC Agreements) caused by or any reason directly attributable to the Company, any member of the Company Group or Shareholders’ Representative, or (ii) there is a valid and effective termination of this Agreement by the Purchaser pursuant to Sections 12.2(a) or Section 12.3(a), then the Company shall pay to the Purchaser a break-up fee in cash equal to Two Million U.S. Dollars ($2,000,000) ( the “Break- Up Fee”). The Break-Up Fee shall be paid by wire transfer of immediately available funds to an account designated in writing by the Purchaser within five (5) Business Days after the Purchaser delivers to the Company written notice of such termination in accordance with this Agreement.” The First Amended Merger Agreement shall not be modified by this Amendment in any respect except as expressly set forth herein. This Amendment may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
Break-Up Fee. (a) If on the Final Termination Date (as extended, as the case may be in accordance with Section 9.1(d)) Buyer is unable or unwilling to consummate the transactions contemplated by this Agreement after Sellers, or the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject to Section 9.4(b), the closing conditions set forth in Section 7.1 (other than the condition set forth in Section 7.1(h)), and Sellers exercise their right to terminate this Agreement, Buyer shall pay the Company a break-up fee in the additional amount of $500,000 (the “Break-Up Fee”).
(b) Solely for purposes of determining whether Sellers have satisfied their closing conditions and are eligible to receive the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.”
(c) The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds to an account(s) designated by the Sellers.
Break-Up Fee. If this Agreement is terminated by Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e), within five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination of this Agreement none of the Buyer or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Break-Up Fee when due pursuant to this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Fee, the prevailing party in such action shall be entitled to recover attor...
Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party to complete this Agreement or any Other Reorganization Agreement means either such party's refusal to consummate the transactions contemplated by this Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such party's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations.
15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the ▇▇▇▇▇▇▇▇ Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the ▇▇▇▇▇▇▇▇ Group.
15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the ▇▇▇▇▇▇▇▇ Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company.
15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contempl...
Break-Up Fee. In the event that this Agreement is terminated as a result of a breach of this Agreement by the Company, failure of the Company to obtain any required consents or approvals, or in connection with the Company entering into another transaction, the Company will pay Purchaser in same day funds a cash fee of $300,000 immediately upon termination.