Break-Up Fee and Termination Fee Clause Samples

Break-Up Fee and Termination Fee. 56 13.3 Remedies. 57 13.4 Survival 58 SECTION 14. MISCELLANEOUS. 58 14.1 Expenses 58 14.2 Inform of Litigation 58 14.3 Assignment 58 14.4 Governing Law 59 14.5 Amendment and Modification 59 14.6 Notices 59 14.7 Entire Agreement 60 14.8 Successors 60 14.9 Counterparts 60 14.10 Severability 60 14.11 Headings 60 14.12 Schedules 60 14.13 Jurisdiction 60 THIS STOCK AND ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into this 17th day of February, 2003, by and between FARMLAND INDUSTRIES, INC., Debtor-in-Possession, a Kansas corporation (hereinafter referred to as "Seller"), and K▇▇▇ NITROGEN COMPANY, a Nebraska corporation (hereinafter referred to as "Buyer").
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Break-Up Fee and Termination Fee a. After approval of the Bid Protection Order by the Bankruptcy Court, Seller shall comply in all respects with the Auction and Bid Procedures and the terms of this Agreement with respect to the payment of the Break-Up Fee and the Termination Fee. b. Seller shall pay the Break-Up Fee to Buyer (i) within two (2) Business Days after Buyer terminates this Agreement (A) pursuant to Section 13.1(a) or Section 13.1(c) for the failure to satisfy a condition set forth in Sections 9.1 or 9.2 of this Agreement, and the failure to satisfy such condition was caused, in whole or in part, by Seller's breach of Section 7.5(b) of this Agreement or (B) pursuant to Section 13.1(e)(2), and the failure of the Sale Order to be so entered was caused, in whole or in part, by any direct or indirect action or inaction by Seller, or (ii) upon the closing of the sale of all or any part of the Foreign Fertilizer Assets or Combined Fertilizer Assets to a Person or Persons other than Buyer. Notwithstanding the foregoing, in the event Buyer terminates this Agreement pursuant to Section 13.1(a) or 13.1(c), Buyer shall not be entitled to the Break-Up Fee pursuant to Section 13.2(b)(i)(A) in the event any breach of Section 7.5(b) giving rise to such termination is cured within thirty (30) days (the "Initial 30 Day Break-Up Fee Period") after Buyer has notified Seller in writing of such breach (which Initial 30 Day Break-Up Fee Period shall include the ten (10) Business Day period contemplated by Sections 9.1 and 13.1(a), as applicable); provided that Seller shall have an additional thirty (30) day period (commencing immediately upon the expiration of the Initial 30 Day Break-Up Fee Period) to cure such breach (the "Extended Break-Up Fee Cure Period") if Seller has worked diligently and in good faith to cure such breach during the Initial 30 Day Break-Up Fee Period, and such breach could reasonably be expected to be cured within the Extended Break-Up Fee Cure Period. In no event shall the Initial 30 Day Break-Up Fee Period be extended beyond the Extended Break-Up Fee Cure Period. c. Seller shall pay Buyer an amount equal to $1,000,000 (the "Termination Fee") if all of the following conditions are satisfied: (i) Buyer is not entitled to the Break-Up Fee pursuant to Section 13.2(b); and (ii) Buyer terminates this Agreement pursuant to Sections 13.1(a) or 13.1(c); and (iii) the failure to satisfy one or more conditions set forth in Sections 9.1, 9.2, 9.3(ii), 9.5, 9.6, 9.9 or 9.10 gave rise to...
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Related to Break-Up Fee and Termination Fee

  • Expenses; Termination Fee (a) Except as set forth in this Section 8.3 and Section 6.12, all fees and expenses incurred in connection with this Agreement and the Offer, the Merger and the other transactions contemplated herein shall be paid by the party incurring such expenses, whether or not the Offer and Merger are consummated. For the avoidance of doubt, Parent shall pay all filing fees payable pursuant to the HSR Act or any other Antitrust Laws, and the Company shall not be required to pay any fees or other payments to any Governmental Entity in connection with any filings under the HSR Act or such other filings as may be required under applicable Antitrust Laws in connection with the Merger or the other transactions contemplated by this Agreement. (b) If: (i) (A) this Agreement is validly terminated by Parent or the Company pursuant to Section 8.1(d) or by Parent pursuant to Section 8.1(g), (B) following the date hereof and prior to the time of the termination of this Agreement, an Acquisition Proposal shall have been publicly announced and (C) the Company consummates an Acquisition Proposal (with all references to 15% in the definition of Acquisition Proposal being treated as 50% for purposes of this clause “(i)”) within twelve (12) months after such termination or the Company enters into a definitive agreement within twelve (12) months after such termination to effect an Acquisition Proposal, which Acquisition Proposal is subsequently consummated; (ii) this Agreement is terminated by Parent pursuant to Section 8.1(e); or (iii) this Agreement is terminated by the Company pursuant to Section 8.1(f), then in the case of each of clauses “(i)” through “(iii),” the Company shall pay or cause to be paid to Parent, in cash at the time specified in the next sentence, a termination fee in the amount of $7,712,711 (the “Termination Fee”). Any Termination Fee shall be paid: (x) in the case of clause “(i)” of the preceding sentence of this (b), within two (2) Business Days after the consummation of the transactions contemplated by such Acquisition Proposal, (y) in the case of clause “(ii)” of the preceding sentence of this (b), within two (2) Business Days following termination of this Agreement and (z) in the case of clause “(iii)” of the preceding sentence of this (b), concurrently with a termination of this Agreement under Section 8.1(f). Any Termination Fee due under this Section 8.3(b) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent. For the avoidance of doubt, the Termination Fee shall be payable only once and not in duplication even though the Termination Fee may be payable under one or more provisions hereof. Subject to Section 8.2(b), in the event that Parent shall receive full payment of the Termination Fee, the receipt of the Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Acquisition Sub, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the Offer and the Merger (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Acquisition Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates for damages or any equitable relief arising out of or in connection with this Agreement, any of the transactions or any matters forming the basis for such termination. (c) The Company and Parent acknowledge and agree that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company and Parent would not enter into this Agreement. In the event that the Company shall fail to pay the Termination Fee when due, Parent shall be entitled to receive interest on such unpaid Termination Fee and Expenses, commencing on the date that the Termination Fee or such Expenses became due, at a rate equal to the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to be made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) and in the event the Parent or Acquisition Sub commences a suit that results in a judgment against the Company for the Termination Fee (or portion thereof), the Company shall pay Parent its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

  • Company Termination Fee (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

  • Early Termination Fee After this contract goes into effect, if you terminate this contract for any reason, or switch your service to a different electricity generation supplier or default service supplier prior to the end of the contract term, you will be responsible for paying XOOM Energy an early termination fee in the amount of $500. This Early Termination Fee is intended not as a penalty, but simply to offset the cost of selling the unused portion of your electric power to others and estimated lost revenue that XOOM may incur from such a sale, if any, and related expenses.

  • Early Termination Fees The amount if an Early Termination Fee that we are entitled to charge is: (a) the amount specified in or calculated in accordance with the relevant Plan; or (b) otherwise, a reasonable estimate of our lost profit as a result of an early termination.

  • Expenses and Termination Fees 46 7.4 Amendment................................................................................... 48 7.5