Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement. (b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 4 contracts
Sources: Merger Agreement (At&t Wireless Services Inc), Agreement and Plan of Merger (Cingular Wireless LLC), Agreement and Plan of Merger (Cingular Wireless LLC)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, thatand notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement.
(b) In the event that (i) a bona fide Acquisition Proposal shall have been made or amended after the date hereof, an Acquisition Proposal (but substituting 40% for hereof to the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been Company or any of its Significant Subsidiaries or any of its shareholders and publicly made or, after the date hereof, disclosed or any Person shall have publicly announced after the date hereof an intention (whether or not conditionalconditional and including any amendment to an existing proposal) to make a Covered an Acquisition Proposal with respect to the Company or any of its Significant Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 30 days prior to, with respect to any termination pursuant to Section 8.2(a), the Termination Date, and (B) at least 10 business days prior to, with respect to termination pursuant to Section 8.2(b), the date of the Shareholders Meeting) and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(a) (Drop Dead) or 8.2(b) or (No Stockholder Approval), (ii) this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (iiii) this Agreement is terminated by Parent pursuant to Section 8.4(b) or (iv) this Agreement is terminated by the Company pursuant to Section 8.3(a) (Fiduciary Out) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent a termination fee of $34.2 million (the “Termination Fee”) (provided, however, that the Termination Fee to Cingular on behalf be paid pursuant to clause (iv) shall be paid as set forth in Section 8.3) and shall promptly, but in no event later than two business days after being notified in writing of itsuch by Parent, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby pay all of the charges documented and reasonable out-of-pocket expenses actually incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination4,000,000, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") each case payable by wire transfer of same day funds. Upon the payment of the ; provided, however, that no Termination Fee or such expenses shall be payable to Parent pursuant to clause (i) or clause (iii) of this paragraph (b) unless and until within 12 months of such termination the ExpensesCompany or any of its Subsidiaries shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s shareholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “15%” in the definition thereof), provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have no further liabilities entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or obligations under this Section 8.5(b)shall have consummated or shall have approved or recommended to the Company’s shareholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular Parent or Merger Sub its reasonable out-of-pocket costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, Citibank N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company pursuant to this Section 8.5(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy under this Agreement.
(c) In the event that (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.2(a) because HSR Approval shall not have been obtained and (ii) prior to the Termination Date, Parent or one of its Subsidiaries has entered into a definitive agreement to acquire the printing business or printing operations of a Person in a transaction that requires HSR Approval, Parent shall pay the Company a termination fee of $17.1 million (the “Parent Fee”), payable by wire transfer of same day funds no later than two business days after such termination. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to promptly pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the fee set forth in this Section 8.5(c) or any portion of such fee, Parent shall pay to the Company its reasonable out-of-pocket costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Parent Fee becomes payable and is paid by Parent pursuant to this Section 8.5(c), the Parent Fee shall be the Company’s sole and exclusive remedy under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Banta Corp), Merger Agreement (Banta Corp), Merger Agreement (RR Donnelley & Sons Co)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger is terminated pursuant to this Article VIIIVII, written notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, and, except as set forth in this Agreement (other than Section 7.05 and as set forth in Section 9.1) 8.01, shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Representatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve (i) the Company from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 7.05(b) or (ii) Parent from any obligation to pay, if applicable, the Parent Termination Fee or the Parent Regulatory Termination Fee pursuant to Section 7.05(c); provided, further, that if (x) such termination resulted, directly or indirectly, from an Intentional Breach or (y) an Intentional Breach shall cause the Closing not to occur, then, notwithstanding such termination, such breaching party hereto shall be fully liable for any and all damages (including Derivative Damages), costs, expenses, liabilities or losses of any liability kind, in each case, incurred or damages resulting from any willful or intentional breach suffered by the other party (collectively, “Damages”) as a result of this Agreementsuch breach.
(b) If this Agreement is terminated (x) by Parent pursuant to Section 7.04(a) (Company Change in Recommendation), (y) by the Company or Parent pursuant to Section 7.02(b) (Company Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 7.04(a) (Company Change in Recommendation) or (z) by the Company pursuant to Section 7.03(c) (Termination for Superior Company Proposal), then the Company shall, within two business days after such termination in the case of clause (x) or in the case of clause (y) with respect to a termination by Parent, or concurrently with such termination in the case of clause (z) or in the case of clause (y) with respect to a termination by the Company, pay Parent a fee equal to $1,525,000,000 (the “Company Termination Fee”). In addition, if (i) this Agreement is terminated (A) by Parent or the event that Company pursuant to Section 7.02(a) (Termination Date) or 7.02(b) (Company Stockholder Vote) or (B) by Parent pursuant to Section 7.04(b) (Company Breach) in respect of any covenant of the Company, (ii) prior to such termination referred to in clause (i) of this sentence, but after the date hereofof this Agreement, an a bona fide Company Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Company Acquisition Proposal or, in the case of termination by Parent pursuant to Section 7.04(b) (Company Breach), a Company Acquisition Proposal shall have been made publicly or privately to the Board of Directors of the Company, (iii) in the case of a termination pursuant to Section 7.02(a) (Termination Date), the conditions set forth in Sections 6.01(d) (Governmental Consents), 6.01(e) (Law; Order) and thereafter 6.02(c) (Government Approvals) shall have been satisfied, and (iv) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 7.05(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal, then the Company shall pay the Company Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 7.05(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(d), except that the references to “20% or more” shall be deemed to be references to “more than 50%” and references to “(using the consolidated total assets of the Retained Business as the denominator for purposes of calculating such percentage)” shall be deemed to be deleted. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(c) If this Agreement is terminated (x) by either Cingular the Company pursuant to Section 7.03(a) (Parent Change in Recommendation), (y) by Parent or the Company pursuant to Section 8.2(b7.02(c) or by Cingular (Parent Stockholder Vote) at a time when the Company had the right to terminate pursuant to Section 8.4(a7.03(a) (Parent Change in Recommendation) or (z) by Parent pursuant to Section 8.4(c), 7.04(c) (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesTermination for Superior Parent Proposal), then the Company Parent shall, promptly following such event, but in no event later than within two business days after such eventtermination in the case of clause (x) or in the case of clause (y) with respect to a termination by the Company, or concurrently with such termination in the case of clause (z) or clause (y) with respect to a termination by Parent, pay SBC and BellSouth in proportion the Company a fee equal to their Specified Interests an aggregate termination fee of $1,400,000,000 1,525,000,000 (One Billion Four Hundred Million Dollarsthe “Parent Termination Fee”). In addition, if (i) this Agreement is terminated (A) by the Company or Parent pursuant to Section 7.02(a) (Termination Date) or Section 7.02(c) (Parent Stockholder Vote) or (B) by the "Company pursuant to Section 7.03(b) (Parent Breach) in respect of any covenant of Parent or a Merger Sub, (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement, a bona fide Parent Acquisition Proposal shall have been publicly made to Parent or any of its Subsidiaries or shall have been made directly to Parent’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a bona fide Parent Acquisition Proposal or, in the case of termination by the Company pursuant to Section 7.03(b) (Parent Breach), a Parent Acquisition Proposal shall have been made publicly or privately to the Board of Directors of Parent, (iii) in the case of a termination pursuant to Section 7.02(a) (Termination Date), the conditions set forth in Section 6.01(d) (Governmental Consents), Section 6.01(e) (Law; Order) and Section 6.02(c) (Government Approvals) shall have been satisfied, and (iv) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 7.05(c), Parent consummates a Parent Acquisition Proposal or enters into an agreement contemplating a Parent Acquisition Proposal, then Parent shall pay the Parent Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 7.05(c), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.03(d), except that (1) the references to “20% or more” shall be deemed to be references to “more than 50%” and (2) “Parent Acquisition Proposal” shall be read without giving effect to clause (i)(2) or (ii)(2) thereof. If this Agreement is terminated by the Company or Parent (i) pursuant to Section 7.02(d) (Law; Final and Non-Appealable Order) as the result of any applicable Antitrust Law, Communications Law or Foreign Regulatory Law or an Order imposed by a Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Laws, Communications Laws or Foreign Regulatory Laws (each, a “Governmental Regulatory Entity”) with respect to an Antitrust Law, Communications Law or Foreign Regulatory Law or (ii) pursuant to Section 7.02(a) (Termination Date) and, at the time of such termination, one or more of the conditions set forth in Section 6.01(d) or Section 6.01(e) (as the result of any applicable Antitrust Law, Communications Law or Foreign Regulatory Law or an Order imposed by a Governmental Regulatory Entity with respect to an Antitrust Law, Communications Law or Foreign Regulatory Law) or Section 6.02(c) was not satisfied and, in the case of each of (i) or (ii), at the time of such termination (A) all of the other conditions set forth in Section 6.01 and Section 6.02 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions were then capable of being satisfied if the Closing had taken place) and (B) the Company is not in breach in any material respect of its obligations under this Agreement in any manner that shall have proximately contributed to the imposition of the Order referred to in clause (i) or the failure of the conditions referred to in clause (ii) above, as applicable, then Parent shall, within two business days after such termination, pay the Company a fee equal to $2,500,000,000 (the “Parent Regulatory Termination Fee"”). In no event shall Parent be required to pay (I) payable by wire transfer of same day funds. Upon the payment of Parent Termination Fee on more than one occasion or (II) both the Parent Termination Fee and the ExpensesParent Regulatory Termination Fee. Notwithstanding anything to the contrary in this Section 7.05(c), if the Parent Termination Fee becomes payable at a time when Parent is in breach of its obligations pursuant to Section 5.06 such that the Company would have the right to terminate this Agreement pursuant to Section 7.03(b), Parent shall have no further liabilities or obligations under this Section 8.5(binstead pay the Company the Parent Regulatory Termination Fee (or, if Parent has already paid the Parent Termination Fee, an amount equal to the Parent Regulatory Termination Fee minus the Parent Termination Fee). The Company .
(d) Each party acknowledges that the agreements contained in this Section 8.5(b) 7.05 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular no party would not enter have entered into this Agreement; accordingly, if the Company fails to pay promptly the Company Termination Fee, if any, or if Parent fails to pay promptly the amount due pursuant to this Section 8.5(bParent Termination Fee or the Parent Regulatory Termination Fee, if any (any such amount, a “Payment”), and, in order to obtain such paymentPayment, Cingular the party entitled to receive such Payment (the “Recipient”) commences a suit that which results in a judgment against the Company party obligated to make such Payment (the “Payor”) for the fee set forth in this Section 8.5(b) applicable Payment, or any portion of such feethereof, the Company Payor shall pay to Cingular the Recipient its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee Payment at the prime rate of Citibank, Citibank N.A. in effect on the date such payment Payment was required to be made paid from the such date such payment was required to be made through the date of paymentfull payment thereof.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Fox Corp), Agreement and Plan of Merger (Walt Disney Co/), Agreement and Plan of Merger (Twenty-First Century Fox, Inc.)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, written notice thereof shall be given to the other Party or Parties specifying the provision hereof pursuant to which such termination is made, and this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party Party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, thatthat (i) this Section 8.5, except as otherwise provided hereinSection 6.9 and Article IX (in each case, no such subject to the terms thereof) shall remain in full force and effect and survive termination of this Agreement, and (ii) nothing herein shall relieve any party hereto of any Party from liability or damages resulting from any willful or intentional breach of this Agreementfor fraud.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company Y pursuant to Section 8.2(b8.3, Company T shall pay Company Y in cash in same-day funds as promptly as possible (but in any event within two business days) after such termination the Termination Fee. The Parties acknowledge and agree that in no event shall Company T be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this Agreement, at the same or at different times or upon the occurrence of different events.
(c) In the event that this Agreement is terminated (i) by Cingular Company Y or Company T pursuant to Section 8.4(a) or Section 8.4(c8.2(d), Company Y shall pay Company T the No Vote Termination Fee in cash in same day funds (x) in the event this Agreement is terminated by Company T, as promptly as possible (but in any event within two business days) after such termination or (y) in the event this Agreement is terminated by Company Y, prior to such termination or (ii) by Company T pursuant to Section 8.4, Company Y shall pay Company T in cash in same-day funds as promptly as possible (but in any event within two business days) after such termination the Termination Fee. The Parties acknowledge and agree that in no event shall Company Y be required to pay the No Vote Termination Fee or the Termination Fee on more than one occasion, whether or not the No Vote Termination Fee or the Termination Fee may be payable under more than one provision of this Agreement, at the same or at different times or upon the occurrence of different events.
(d) (i) then Subject to Section 8.5(f) and Section 9.8, Company Y’s receipt of the Termination Fee from Company T pursuant to Section 8.5(b) shall be the sole and exclusive remedy of Company Y and its Subsidiaries against the Company shall promptlyT Related Parties (other than the Company T Voting Shareholders pursuant to the terms of the Company T Voting Agreements) for any loss suffered as a result of any breach of any covenant or agreement or the failure of the Merger to be consummated, but in no event later than two business days after the date and upon payment of such terminationamount, pay none of the Company T Related Parties (other than the Company T Voting Shareholders pursuant to Cingular on behalf the terms of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with the Company T Voting Agreements) shall have any further liability or obligation relating to or arising out of this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and and, (ii) ifsubject to Section 8.5(f), within 15 months after such termination (ICompany T’s receipt of the No Vote Termination Fee or the Termination Fee from Company Y pursuant to Section 8.5(c) any Person shall be the sole and exclusive remedy of Company T against the Company Y Related Parties (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of Company Y Voting Shareholders pursuant to the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets terms of the Company Y Voting Agreements) for any loss suffered as a result of any breach of any covenant or (Y) with respect agreement or the failure of the Merger to any transaction or series be consummated, and upon payment of related transactions after which stockholders such amount, none of the Company immediately prior Y Related Parties (other than the Company Y Voting Shareholders pursuant to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities terms of the Company Y Voting Agreements) 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, subject to Section 8.5(f), (or of another Person that directly or indirectly would own all or substantially all the assets A) under no circumstances will Company Y be entitled to monetary damages in excess of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment amount of the Termination Fee and (B) under no circumstances will Company T be entitled to monetary damages in excess of the Expensesamount of the No Vote Termination Fee or the Termination Fee, as applicable.
(e) The Parties expressly acknowledge and agree that, with respect to any termination of this Agreement under circumstances in which the No Vote Termination Fee or the Termination Fee is payable pursuant to this Section 8.5, payment of the Termination Fee, as required hereunder, shall constitute liquidated damages with respect to any claim for damages or any other claim which Company T, on the one hand, or Company Y, on the other hand, as the case may be, would otherwise be entitled to assert against Company Y, on the one hand, or Company T, on the other hand, as the case may be, or their respective assets, or against any of their respective employees or equity holders (without limiting any claims otherwise available to (i) Company T against the Company Y Voting Shareholders pursuant to the Company Y Voting Agreements or (ii) Company Y against the Company T Voting Shareholders pursuant to the terms of the Company T Voting Agreements) or any other Company T Related Party or Company Y Related Party, as the case may be, with respect to any such termination of this Agreement. The Parties expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement under circumstances in which the No Vote Termination Fee or the Termination Fee is payable pursuant to this Section 8.5, the Company right to such payment (A) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination of this Agreement, and (B) shall have no further liabilities or obligations under be in full and complete satisfaction of any and all damages arising as a result of any such termination of this Section 8.5(b). The Company Agreement.
(f) Each of the Parties acknowledges that the agreements contained in this Section 8.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the other Parties would not enter have entered into this Agreement; accordingly, if Company T or Company Y, as the Company case may be, fails to promptly pay the amount due pursuant to this Section 8.5(b)8.5, and, in order to obtain such payment, Cingular Company Y or Company T, as the case may be, commences a suit that which results in a judgment against the other Party, with respect to Company Y or Merger Sub, or Parties, with respect to Company T for the fee amounts set forth in this Section 8.5(b) or any portion of 8.5, such fee, the Company paying Party shall pay to Cingular the other Party or Parties, as applicable, its reasonable and documented costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 3 contracts
Sources: Merger Agreement (Tudou Holdings LTD), Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an (i) a Company Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Company Acquisition Proposal and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b8.2(ii), (ii) or this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a8.4(a)(i) or Section 8.4(c)or, (iiii) this Agreement is terminated by the Company pursuant to Section 8.3(b) then the Company shall, in the case of a termination pursuant to 8.3(b) prior to such termination, and otherwise promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee of $55,000,000 and shall promptly, but in no event later than two business days after the date being notified of such terminationby Parent, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually expenses, including those of the Exchange Agent, incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") 15,000,000, in each case payable by wire transfer of same day funds and funds; provided, however, that in the event of a termination pursuant to Section 8.2(ii) under the circumstances set forth in clause (iii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Companythis Section 8.5(b), or ownership or control of 40% or more of the consolidated assets of a termination pursuant to Section 8.4(a)(i), the Company or shall (Ya) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such eventpromptly, but in no event later than two business days after being notified of such eventby Parent, pay SBC all of the charges and BellSouth expenses incurred by Parent in proportion connection with this Agreement and the transactions contemplated by this Agreement up to their Specified Interests an aggregate a maximum amount of $15,000,000, and, (b) if the Company enters into a definitive agreement to consummate or consummates a Company Acquisition Proposal within 12 months from the date of such termination, at the time of the entering into of such agreement or such consummation, as applicable, pay Parent a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)55,000,000. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.
(c) In the event that (i) a Parent Adverse Proposal shall have been made to Parent or any of its Subsidiaries or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Parent Adverse Proposal and thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 8.2(iii), (ii) this Agreement is terminated by the Company pursuant to Section 8.3(a)(i) or (iii) this Agreement is terminated by Parent pursuant to Section 8.4(b), then Parent shall, in the case of a termination pursuant to Section 8.4(b) prior to such termination, and otherwise promptly, but in no event later than two days after the date of such termination, pay the Company a termination fee of $85,000,000 and shall promptly, but in no event later than two days after being notified of such by the Company, pay all of the charges and expenses incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $15,000,000, in each case payable by wire transfer of same day funds; provided, however, that in the event of a termination pursuant to Section 8.2(iii) under the circumstances set forth in clause (i) of this Section 8.5(c), or a termination pursuant to Section 8.3(a)(i), Parent shall (a) promptly, but in no event later than two days after being notified of such by the Company, pay all of the charges and expenses incurred by the Company in connection with this Agreement and the transactions contemplated hereby up to a maximum amount of $15,000,000 and, (b) if Parent enters into a definitive agreement to consummate or consummates a Parent Adverse Proposal within 12 months from the date of such termination, at the time of the entering into of such agreement or such consummation, as applicable, pay the Company a termination fee of $85,000,000. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to promptly pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this paragraph (c), Parent shall pay to the Company its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made through the date of paymentmade.
Appears in 3 contracts
Sources: Merger Agreement (MCN Energy Group Inc), Merger Agreement (Dte Energy Co), Agreement and Plan of Merger (Detroit Edison Co)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(bi) In the event that this Agreement is terminated for any reason prior to the Effective Time, then the Company shall promptly, upon the conditions set forth in the following sentence being met, pay to Parent a cash payment according to the formula set forth in Exhibit H. The conditions to the payment referred to in the preceding sentence are that, within two years after the date hereofof any such termination, the Company (x) shall consummate (on a solicited or unsolicited basis) an Acquisition Proposal (but substituting 40% for or shall enter into a binding agreement to consummate an Acquisition Proposal that is subsequently consummated) which in either case would meet the 15% threshold standard set forth in the definition thereofsubsection (B)(1), (2) or (a "Covered Proposal"3) of Section 6.2 hereof, or (y) shall have been publicly made or, issue any securities (other than pursuant to the Stock Option Plans or other employee benefit plans) and receive cash proceeds (on a cumulative basis for all such issuances within two years after the date hereoftermination date) aggregating at least $5 million. Promptly upon such consummation or promptly upon such receipt of proceeds, the Company (or the successor to the -48- 55 Company, if applicable) shall make the cash payment to Parent according to the formula set forth in Exhibit H; provided that in the case of an event described in clause (y) of the preceding sentence, the cash payment will not be due until 270 days following the receipt of such proceeds.
(ii) In addition, in any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter case where termination of this Agreement is terminated arises as a result of failure to obtain approval by either Cingular the Company's stockholders as contemplated in Section 6.4, or any action on the Company part of the Company's Board of Directors (including, without limitation, action pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a8.3(b) or Section 8.4(c8.4(a)(i)), (i) or as a result of any material breach by the Company hereunder, then the Company shall promptly, but in no event later than two business days after the date being notified of such terminationby Parent, pay to Cingular on behalf all of it, SBC and BellSouth and their respective Affiliates incurring the out-of-pocket charges and expenses expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Term Loan Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (and the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") Term Loan Agreement payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). .
(iii) The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount amounts due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee any payment set forth in this Section 8.5(b) or any portion of such fee), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee owing, until paid in full, at the prime same rate of Citibank, N.A. in effect on as is applicable to the date such payment was required loan made by Parent to be made from the date such payment was required Company pursuant to be made through the date of paymentTerm Loan Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Efax Com Inc), Merger Agreement (Efax Com Inc), Merger Agreement (Jfax Com Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of If this Agreement is terminated and the abandonment of the Merger pursuant to this Article VIIIis abandoned, this Agreement (other than except as set forth in this Section 9.1) shall become void and of 7.2, no effect with no Party will have any liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)further obligation under this Agreement; provided, however, that, except as otherwise provided herein, no such termination nothing contained herein shall relieve any party hereto of any a Party from liability or damages resulting from for any willful or intentional breach by it of this Agreement and except that Sections 4.3(t), 5.5 and this Section 7.2 and Article VIII will survive termination of this Agreement.
(b) In the event that after the date hereof, If this Agreement is terminated (i) (x) by CAC or CEC pursuant to Section 7.1(b) or by CEC pursuant to Section 7.1(d) and (y) CAC (A) receives or has received an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereofof this Agreement, which proposal has been publicly announced and has not been withdrawn prior to the termination of this Agreement, and (B) within twelve (12) months after the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, any Person Acquisition Proposal (regardless of when made), (ii) by CAC pursuant to Section 7.1(h)(ii) or (iii) by CEC pursuant to Section 7.1(e), then CAC shall have publicly announced pay to CEC (by wire transfer of immediately available funds) within two (2) Business Days after such termination (in the case of either of the foregoing clauses (ii) or (iii)) or such consummation (in the case of the foregoing clause (i)), a fee in an intention (whether or not conditional) amount equal to make a Covered Proposal and thereafter the Termination Fee. Notwithstanding the foregoing, in the event this Agreement is terminated by either Cingular or the Company CAC pursuant to Section 8.2(b7.1(h)(ii) in connection with a CAC Acquisition Proposal received by CAC on or before the Go-Shop Period End Date, the “Termination Fee” shall mean a fee in the amount of $18,000,000. If this Agreement is terminated by Cingular CEC pursuant to Section 8.4(a) or Section 8.4(c7.1(d), then CAC shall pay to CEC (iby wire transfer of immediately available funds) then the Company shall promptly, but in no event later than within two business days (2) Business Days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges all reasonable out-of-pocket fees and expenses actually incurred by CEC in connection with this Agreement on or prior to the termination of this Agreement, in an amount not to exceed $10,000,000 in the aggregate (provided that CEC shall provide reasonable documentation thereof) (the “CEC Expenses”). Any CEC Expenses previously paid by CAC to CEC pursuant to this Section 7.2(b) shall be credited towards the payment of any Termination Fee that becomes payable by CAC hereunder.
(c) If this Agreement is terminated (i) (x) by CAC or CEC pursuant to Section 7.1(c) or by CAC pursuant to Section 7.1(d) and (y) CEC (A) receives or has received an Acquisition Proposal, after the transactions contemplated hereby all date of this Agreement, which proposal has been publicly announced and has not been withdrawn prior to the termination of this Agreement, and (B) within twelve (12) months after the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, any Acquisition Proposal (regardless of when made), (ii) by CEC pursuant to Section 7.1(h)(i) or (iii) by CAC pursuant to Section 7.1(e), then CEC shall pay to CAC (by wire transfer of immediately available funds) within two (2) Business Days after such termination (in the case of any of the charges foregoing clauses (ii) or (iii)) or such consummation (in the case of the foregoing clause (i)), a fee in an amount equal to the Termination Fee. If this Agreement is terminated by CAC pursuant to Section 7.1(d), then CEC shall pay to CAC (by wire transfer of immediately available funds) within two (2) Business Days after such termination, all reasonable out-of-pocket fees and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates CAC in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular on or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation termination of such transaction or transactions would cease this Agreement, in an amount not to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction exceed $10,000,000 in the same proportion as they owned prior to the consummation of such transaction, or aggregate (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollarsprovided that CAC shall provide reasonable documentation thereof) (the "Termination Fee"“CAC Expenses”). Any CAC Expenses previously paid by CEC to CAC pursuant to this Section 7.2(c) payable by wire transfer of same day funds. Upon shall be credited towards the payment of the any Termination Fee that becomes payable by CEC hereunder.
(d) The Parties acknowledge and agree that (i) the Expenses, the Company shall have no further liabilities or obligations under provisions of this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) 7.2 are an integral part of the transactions contemplated by this AgreementAgreement (including the Merger), and that, without these agreementssuch provisions, Cingular the Parties would not enter have entered into this Agreement; accordinglyAgreement and (ii) the Termination Fee is not a penalty, if but is liquidated damages, in a reasonable amount that will compensate the Company fails applicable Party 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 promptly calculate with precision. If a Party shall fail to pay in a timely manner the amount amounts due pursuant to this Section 8.5(b)7.2, and, in order to obtain such payment, Cingular commences the other Party makes a suit claim against the Party failing to pay that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeParty, the Company such Party shall pay to Cingular its the other Party the reasonable costs and expenses (including its reasonable attorneys' fees’ fees and expenses) incurred or accrued in connection with such suit, together with interest on the amount of the fee amounts set forth in this Section 7.2 at the prime lending rate of Citibank, N.A. prevailing during such period as published in effect The Wall Street Journal. Any interest payable hereunder shall be calculated on the date such payment was required to be made a daily basis from the date such payment was amounts were required to be made through paid until (but excluding) the date of actual payment, and on the basis of a 360-day year. The Parties acknowledge and agree that in no event shall either Party be obligated to pay the Termination Fee on more than one occasion.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (CAESARS ENTERTAINMENT Corp), Agreement and Plan of Merger (Caesars Acquisition Co), Merger Agreement (CAESARS ENTERTAINMENT Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement (other than as set forth in this Section 9.17.2 and Article VIII) shall become void and of no further force or effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or damages resulting from for any willful or intentional breach of this AgreementAgreement prior to termination. If this Agreement is terminated as provided herein, each party shall use its reasonable best efforts to redeliver all documents, work papers and other material (including any copies thereof) of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same.
(b) In the event that
(i) prior to or concurrent with termination of this Agreement the Board of the Company shall withdraw or modify in a manner adverse to Purchaser its approval or recommendation of the Offer, the Merger or this Agreement,
(ii) prior to or concurrent with termination of this Agreement the Company shall enter into a definitive written agreement with a third party that after the date hereofwould constitute a Company Superior Offer, an Acquisition or
(iii) prior to termination of this Agreement a bona fide Company Takeover Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after known to the date hereof, Company or has been made directly to its shareholders generally or any Person person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Company Takeover Proposal and thereafter (a “Competing Company Takeover Proposal”) and, after any such event described above in this clause (iii), this Agreement is (x) terminated by either Cingular or the Company pursuant to Section 8.2(b7.1(b)(i) or 7.1(b)(ii), (y) terminated by Cingular Purchaser due to any action described in Section 7.1(d), or (z) terminated by Purchaser pursuant to Section 8.4(a7.1(f) or Section 8.4(cdue to a condition described in (e), (ig) or (j) of Annex A, then the Company shall promptly, but in no event later than than, in the case of termination by the Company or an event described in clause (i) or (ii) of this Section, immediately prior to such termination or event, or in the case of termination by Purchaser, two business days after the date of such termination, pay to Cingular on behalf Purchaser Seven Hundred Fifty Thousand Dollars ($750,000) (the “Company Termination Fee”), plus the reimbursement of it, SBC any and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually Purchaser Expenses (as defined below) incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement Purchaser and the transactions contemplated by this Agreement Merger Sub up to a maximum amount of Five Hundred Thousand Dollars ($40,000,000 (the "Expenses") 500,000), payable by wire transfer of same day funds to an account designated by Purchaser.
(c) Purchaser shall submit a statement of the Purchaser Expenses to the Company. For purposes of this Agreement, the term “Purchaser Expenses” shall mean any and (ii) ifall costs, within 15 months after such termination (I) fees and expenses incurred by Purchaser and Merger Sub in connection with the preparation, negotiation, execution, performance and consummation of this Agreement, the Shareholders Agreement, the Stock Option Agreement and any Person (other than Cingular agreements executed in connection herewith or therewith or in connection with any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire the transactions contemplated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such mergeragreements and documents (including, consolidation or similar business combination or any such salewithout limitation, assignmentattorneys’, lease or transaction between the Company or one of its Subsidiaries information agent’s and any Person (other than Cingular or any of its Affiliates)accountants’ fees and expenses, then the Company shallfiling fees, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee printing and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(bmailing costs). The Company acknowledges that the agreements contained in this Section 8.5(b7.2(b) are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Cingular Purchaser would not enter have entered into this Agreement; accordingly. Notwithstanding the foregoing, if the Company fails to promptly pay the amount due no fee or expense reimbursement shall be paid pursuant to Section 7.2(b) if Purchaser shall be in material breach of its obligations hereunder.
(d) Purchaser acknowledges that payments made under Section 7.2(b) hereof shall constitute its exclusive remedy with respect to any termination of this Section 8.5(b), and, in order Agreement that gives rise to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentobligation.
Appears in 3 contracts
Sources: Merger Agreement (Sl Industries Inc), Merger Agreement (Sl Industries Inc), Merger Agreement (Ault Inc)
Effect of Termination and Abandonment. (a) In the event of a ------------------------------------- termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 8.5(b) below and Section 9.2 and except that nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that If (x)(i) after the date hereofhereof any corporation, an Acquisition Proposal partnership, person, other entity or group (but substituting 40% for as defined in Section 13(d)(3) of the 15% threshold set forth in the definition thereofExchange Act) other than Parent or Merger Sub or any of their respective subsidiaries or affiliates (collectively, a "Covered Proposal13(d)(3) Person") shall have been publicly made orbecome the beneficial --------------- owner of a majority or more of the outstanding Shares or any 13(d)(3) Person shall have commenced, after the date hereof, any Person or shall have publicly announced an intention to commence, a bona fide tender offer or exchange offer for one third or more of the ---- ---- outstanding Shares, (whether ii) the Share Number Condition (as defined in Annex A) shall not have been satisfied and the Offer is terminated without the purchase of any Shares thereunder, and (iii) within one year following such termination, the Company shall have entered into an agreement with respect to an Acquisition Proposal with any person or not conditionalother entity other than Parent or any Person or other entity becomes the beneficial owner of a majority or more of the outstanding Shares, in either case at a price per Share of $11.50 or more, or (y) to make a Covered Proposal and thereafter Parent shall have terminated this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b8.3(y), or (z) or by Cingular the Company shall have terminated this Agreement pursuant to Section 8.4(a) or Section 8.4(c8.4(y), then (iif such fee has not already been paid) then the Company shall promptly, but in no event later than two business days after the date of such agreement or the effective time of such termination, as the case may be, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Parent a maximum amount fee of $40,000,000 (the "Expenses"15,000,000; provided that no fee shall be paid pursuant to this Section 8.5(b) payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or if Parent -------- shall have materially breached any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)hereunder. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount amounts due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 3 contracts
Sources: Merger Agreement (International Technology Corp), Merger Agreement (Ohm Corp), Merger Agreement (Ohm Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger is terminated pursuant to this Article VIIIVII, written notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, and, except as set forth in this Agreement (other than Section 7.05 and as set forth in Section 9.1) 8.01, shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Representatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve (i) the Company from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 7.05(b) or (ii) Parent from any obligation to pay, if applicable, the Parent Termination Fee or the Parent Regulatory Termination Fee pursuant to Section 7.05(c); provided, further, that if (x) such termination resulted, directly or indirectly, from an Intentional Breach or (y) an Intentional Breach shall cause the Closing not to occur, then, notwithstanding such termination, such breaching party hereto shall be fully liable for any and all damages (including Derivative Damages), costs, expenses, liabilities or losses of any liability kind, in each case, incurred or damages resulting from any willful or intentional breach suffered by the other party (collectively, “Damages”) as a result of this Agreementsuch breach.
(b) If this Agreement is terminated (x) by Parent pursuant to Section 7.04(a) (Company Change in Recommendation), (y) by the Company or Parent pursuant to Section 7.02(b) (Company Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 7.04(a) (Company Change in Recommendation) or (z) by the Company pursuant to Section 7.03(c) (Termination for Superior Company Proposal), then the Company shall, within two business days after such termination in the case of clause (x) or in the case of clause (y) with respect to a termination by Parent, or concurrently with such termination in the case of clause (z) or in the case of clause (y) with respect to a termination by the Company, pay Parent a fee equal to $1,525,000,000 (the “Company Termination Fee”). In addition, if (i) this Agreement is terminated (A) by Parent or the event that Company pursuant to Section 7.02(a) (Termination Date) or 7.02(b) (Company Stockholder Vote) or (B) by Parent pursuant to Section 7.04(b) (Company Breach) in respect of any covenant of the Company, (ii) prior to such termination referred to in clause (i) of this sentence, but after the date hereofof this Agreement, an a bona fide Company Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Company Acquisition Proposal or, in the case of termination by Parent pursuant to Section 7.04(b) (Company Breach), a Company Acquisition Proposal shall have been made publicly or privately to the Board of Directors of the Company, (iii) in the case of a termination pursuant to Section 7.02(a) (Termination Date), the conditions set forth in Sections 6.01(d) (Governmental Consents), 6.01(e) (Law; Order) and thereafter 6.02(c) (Government Approvals) shall have been satisfied, and (iv) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 7.05(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal, then the Company shall pay the Company Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 7.05(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(d), except that the references to “20% or more” shall be deemed to be references to “more than 50%” and references to “(using the consolidated total assets of the Retained Business as the denominator for purposes of calculating such percentage)” shall be deemed to be deleted. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(c) If this Agreement is terminated (x) by either Cingular the Company pursuant to Section 7.03(a) (Parent Change in Recommendation), (y) by Parent or the Company pursuant to Section 8.2(b7.02(c) or by Cingular (Parent Stockholder Vote) at a time when the Company had the right to terminate pursuant to Section 8.4(a7.03(a) (Parent Change in Recommendation) or (z) by Parent pursuant to Section 8.4(c), 7.04(c) (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesTermination for Superior Parent Proposal), then the Company Parent shall, promptly following such event, but in no event later than within two business days after such eventtermination in the case of clause (x) or in the case of clause (y) with respect to a termination by the Company, or concurrently with such termination in the case of clause (z) or clause (y) with respect to a termination by Parent, pay SBC and BellSouth in proportion the Company a fee equal to their Specified Interests an aggregate termination fee of $1,400,000,000 1,525,000,000 (One Billion Four Hundred Million Dollarsthe “Parent Termination Fee”). In addition, if (i) this Agreement is terminated (A) by the Company or Parent pursuant to Section 7.02(a) (Termination Date) or 7.02(c) (Parent Stockholder Vote) or (B) by the "Company pursuant to Section 7.03(b) (Parent Breach) in respect of any covenant of Parent or a Merger Sub, (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement, a bona fide Parent Acquisition Proposal shall have been publicly made to Parent or any of its Subsidiaries or shall have been made directly to Parent’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a bona fide Parent Acquisition Proposal or, in the case of termination by the Company pursuant to Section 7.03(b) (Parent Breach), a Parent Acquisition Proposal shall have been made publicly or privately to the Board of Directors of Parent, (iii) in the case of a termination pursuant to Section 7.02(a) (Termination Date), the conditions set forth in Sections 6.01(d) (Governmental Consents), 6.01(e) (Law; Order) and 6.02(c) (Government Approvals) shall have been satisfied, and (iv) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 7.05(c), Parent consummates a Parent Acquisition Proposal or enters into an agreement contemplating a Parent Acquisition Proposal, then Parent shall pay the Parent Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 7.05(c), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.03(d), except that (1) the references to “20% or more” shall be deemed to be references to “more than 50%” and (2) “Parent Acquisition Proposal” shall be read without giving effect to clause (i)(2) or (ii)(2) thereof. If this Agreement is terminated by the Company or Parent (i) pursuant to Section 7.02(d) (Law; Final and Non-Appealable Order) as the result of any applicable Antitrust Law, Communications Law or Foreign Regulatory Law or an Order imposed by a Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Laws, Communications Laws or Foreign Regulatory Laws (each, a “Governmental Regulatory Entity”) with respect to an Antitrust Law, Communications Law or Foreign Regulatory Law or (ii) pursuant to Section 7.02(a) (Termination Date) and, at the time of such termination, one or more of the conditions set forth in Section 6.01(d) or Section 6.01(e) (as the result of any applicable Antitrust Law, Communications Law or Foreign Regulatory Law or an Order imposed by a Governmental Regulatory Entity with respect to an Antitrust Law, Communications Law or Foreign Regulatory Law) or Section 6.02(c) was not satisfied and, in the case of each of (i) or (ii), at the time of such termination (A) all of the other conditions set forth in Section 6.01 and Section 6.02 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions were then capable of being satisfied if the Closing had taken place) and (B) the Company is not in breach in any material respect of its obligations under this Agreement in any manner that shall have proximately contributed to the imposition of the Order referred to in clause (i) or the failure of the conditions referred to in clause (ii) above, as applicable, then Parent shall, within two business days after such termination, pay the Company a fee equal to $2,500,000,000 (the “Parent Regulatory Termination Fee"”). In no event shall Parent be required to pay (I) payable by wire transfer of same day funds. Upon the payment of Parent Termination Fee on more than one occasion or (II) both the Parent Termination Fee and the ExpensesParent Regulatory Termination Fee. Notwithstanding anything to the contrary in this Section 7.05(c), if the Parent Termination Fee becomes payable at a time when Parent is in breach of its obligations pursuant to Section 5.06 such that the Company would have the right to terminate this Agreement pursuant to Section 7.03(b), Parent shall have no further liabilities or obligations under this Section 8.5(binstead pay the Company the Parent Regulatory Termination Fee (or, if Parent has already paid the Parent Termination Fee, an amount equal to the Parent Regulatory Termination Fee minus the Parent Termination Fee). The Company .
(d) Each party acknowledges that the agreements contained in this Section 8.5(b) 7.05 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular no party would not enter have entered into this Agreement; accordingly, if the Company fails to pay promptly the Company Termination Fee, if any, or if Parent fails to pay promptly the amount due pursuant to this Section 8.5(bParent Termination Fee or the Parent Regulatory Termination Fee, if any (any such amount, a “Payment”), and, in order to obtain such paymentPayment, Cingular the party entitled to receive such Payment (the “Recipient”) commences a suit that which results in a judgment against the Company party obligated to make such Payment (the “Payor”) for the fee set forth in this Section 8.5(b) applicable Payment, or any portion of such feethereof, the Company Payor shall pay to Cingular the Recipient its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee Payment at the prime rate of Citibank, Citibank N.A. in effect on the date such payment Payment was required to be made paid from the such date such payment was required to be made through the date of paymentfull payment thereof.
Appears in 3 contracts
Sources: Merger Agreement (Twenty-First Century Fox, Inc.), Merger Agreement (Walt Disney Co/), Merger Agreement (Walt Disney Co/)
Effect of Termination and Abandonment. (a) In Subject to Sections 8.5(b), 8.5(c) and 9.1, in the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, thatand notwithstanding anything in the foregoing to the contrary, that except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful Willful or intentional breach Deliberate Breach of this Agreement.
(b) In the event that after (i) this Agreement is terminated by either Parent or the date hereof, an Company pursuant to Section 8.2(a) or 8.2(b) and prior to such termination a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made orto the Company or any of its Subsidiaries or Affiliates or any of its shareholders, after the date hereof, or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and thereafter such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification), (ii) this Agreement is terminated by either Cingular Parent pursuant to Sections 8.4(a), (b), (c), (d), (e), (f) or (g), (iii) this Agreement is terminated by Parent pursuant to Section 8.4(h) (with respect to a Willful or Deliberate Breach) and prior to the breach giving rise to Parent’s right to terminate pursuant to Section 8.4(h) a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or Affiliates, or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification), or (iv) this Agreement is terminated by the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c8.3(a), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Parent a maximum amount termination fee of $40,000,000 50,000,000 (the "Expenses"“Termination Fee”) payable by wire transfer of same day funds immediately available funds; provided, however, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and (ii) if, until within 15 12 months after of such termination (I) any Person (other than Cingular the Company or any of its Affiliates) has Subsidiaries shall have entered into an agreement (X) Alternative Acquisition Agreement with respect to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer shall have consummated or similar business combination, in one transaction shall have approved or any related series of transactions, 40% or more of the voting power of the outstanding securities of recommended to the Company’s shareholders or otherwise not opposed, or ownership or control an Acquisition Proposal (substituting, for purposes of 40this proviso only, 50% or more of for 15% in the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior definition thereof). Notwithstanding anything to the consummation of such transaction or transactions would cease contrary in this Agreement, subject to own directly or indirectly at least 60% of Section 8.5(c), the voting power of the outstanding securities of the Company (or of another Person parties hereby acknowledge that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of that the Termination Fee becomes payable and the Expenses, is paid by the Company shall have no further liabilities or obligations under and accepted by Parent pursuant to this Section 8.5(b). , the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for damages under this Agreement and, for the avoidance of doubt, in such circumstance no costs or expenses shall be payable by the Company pursuant to Section 6.9.
(c) The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b) 8.5 and in Section 6.9 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the parties would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due Termination Fee pursuant to this Section 8.5(b)) or any expenses pursuant to Section 6.9, and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee Termination Fee set forth in this Section 8.5(b) or any portion of such feeexpenses pursuant to Section 6.9, the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, Citibank N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentpayment (it being understood and agreed that any costs and expenses paid by the Company pursuant to this Section 8.5(c) shall be in addition to any costs and expenses otherwise paid by the Company pursuant to Section 6.9).
Appears in 3 contracts
Sources: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (Goldman Sachs Group Inc), Merger Agreement (McJunkin Red Man Holding Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); providedPROVIDED, however, thatHOWEVER, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, (i) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered any Acquisition Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated by the Company pursuant to Section 8.2(i) or by either Cingular Parent or the Company pursuant to Section 8.2(b8.2(ii) or (ii) this Agreement is terminated (A) by Cingular the Company pursuant to Section 8.3(a) or (B) by Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such terminationtermination or such earlier time as required by this Agreement, pay to Cingular on behalf Parent a termination fee of it$250,000 (the "TERMINATION FEE") and shall promptly, SBC and BellSouth and their respective Affiliates incurring but in no event later than two days after being notified of such by Parent, pay to Parent an amount equal to all of the reasonable out-of-pocket charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Merger Subsidiary in connection with this Agreement and the transactions contemplated by this Agreement up and substantiated to a maximum amount of $40,000,000 (the "Expenses") Company in writing, in each case payable by wire transfer of same day funds and (ii"EXPENSES").
(c) if, within 15 months after such termination In the event this Agreement is terminated (IA) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company pursuant to Section 8.2(i) or Section 8.2(ii) or (YB) with respect by Parent pursuant to any transaction Section 8.2(ii) or series of related transactions after which stockholders of Section 8.4(c) and no fee is otherwise payable to Parent pursuant to paragraph (b) above, the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such eventshall promptly, but in no event later than two business days after the date of such eventtermination or such earlier time as required by this Agreement, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (Parent the "Termination Fee") Expenses, payable by wire transfer of same day funds. Upon the payment If, within one year of the Termination Fee and the Expensessuch termination, the Company enters into an agreement concerning a transaction that constitutes an Acquisition Proposal, the Company at the time of entering into such Agreement shall have no further liabilities or obligations under this Section 8.5(b). pay to Parent the Termination Fee, payable by wire transfer of same day funds.
(d) The Company acknowledges that the agreements contained in this Section Sections 8.5(b) and (c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Subsidiary would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this either Section 8.5(b) or (c), and, in order to obtain such payment, Cingular Parent or Merger Subsidiary commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, therein the Company shall pay to Cingular Parent or Merger Subsidiary its costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest from the date such amounts became due on the amount of the fee amounts owed at the prime rate of Citibank, N.A. (as determined by BankAmerica) in effect on the date from time to time during such payment was required to be made from the date such payment was required to be made through the date of paymentperiod.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Medical Resources Management Inc), Agreement and Plan of Reorganization and Merger (Emergent Group Inc/Ny)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger transactions contemplated hereby pursuant to this Article VIIIIX, this Agreement (other than as set forth in Sections 6.2, this Section 9.19.5 and Article X each of which shall survive the termination of this Agreement) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, (i) no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
, and (bii) In in the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular Purchaser or the Company Seller pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c9.2(ii), Seller shall reimburse Purchaser for all of its reasonable costs and expenses (iincluding reasonable legal, consulting and accounting fees and disbursements and the costs and expenses incurred in connection with filings made under the HSR Act and other Antitrust Laws) then incurred by Purchaser in connection with this Agreement (the Company “Purchaser Expenses”); provided, Seller shall not be required to reimburse Purchaser for any such Purchaser Expenses exceeding $800,000. Seller shall promptly, but in no event later than two ten business days after the date it receives notice from Purchaser setting forth the amount of such terminationcosts and expenses, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum such amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into to an agreement (X) to, directly or indirectly, acquire account designated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day fundsPurchaser. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company Seller acknowledges that the agreements contained in this Section 8.5(b9.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Purchaser would not enter into this Agreement; accordingly, if .
(b) In the Company fails event that (x) an Alternative Proposal shall have been made to promptly pay the amount due pursuant Seller or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to this Section 8.5(b), make an Alternative Proposal with respect to Seller and, in order each case, such Alternative Proposal shall not have been withdrawn and thereafter this Agreement is terminated by either Purchaser or Seller pursuant to obtain Section 9.2(i) or (y) this Agreement is terminated by either Purchaser or Seller pursuant to Section 9.2(ii) or by Purchaser pursuant to Section 9.4, then Seller shall promptly but in no event later than five business days after the date of such paymenttermination, Cingular commences a suit reimburse Purchaser for all Purchaser Expenses, provided, Seller shall not be required to reimburse Purchaser for any such Purchaser Expenses exceeding $800,000. Seller acknowledges that results in a judgment against the Company for the fee set forth agreements contained in this Section 8.5(b9.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount are an integral part of the fee at the prime rate of Citibanktransactions contemplated by this Agreement, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentand that, without these agreements, Purchaser would not enter into this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Liberate Technologies), Asset Purchase Agreement (Liberate Technologies)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement (other than as set forth in Section 9.18.1) shall become void and of no effect with no liability on the part party of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional grossly negligent breach of this Agreement.
(b) In the event that after the date hereof, an (i) a UTI Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, to UTI or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered UTI Acquisition Proposal with respect to UTI or any of its Subsidiaries and thereafter this Agreement is terminated by either Cingular PEC or the Company UTI pursuant to Section 8.2(b7.2(ii), or (ii) or this Agreement is terminated by Cingular UTI pursuant to Section 8.4(a) or Section 8.4(c7.3(a), (i) then the Company UTI shall promptly, but in no event later than two business days after the date PEC makes a written request for payment, pay PEC a termination fee of $32,500,000 and shall promptly, but in no event later than two days after being notified of such terminationby PEC, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby PEC an amount equal to all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates PEC in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") 2,500,000, in each case payable by wire transfer of same day funds and funds.
(iic) if, within 15 months after such termination In the event that (Ii) any Person (other than Cingular a PEC Acquisition Proposal shall have been made to PEC or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction Subsidiaries or any related series of transactions, 40% its stockholders or more of the voting power of the outstanding securities of the Company, any Person shall have publicly announced an intention (whether or ownership or control of 40% or more of the consolidated assets of the Company or (Ynot conditional) to make a PEC Acquisition Proposal with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination PEC or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person thereafter this Agreement is terminated by either UTI or PEC pursuant to Section 7.2(iii), or (other than Cingular or any of its Affiliatesii) this Agreement is terminated by PEC pursuant to Section 7.4(a), then the Company shall, promptly following such eventPEC shall promptly, but in no event later than two business days after such eventthe date UTI makes a written request for payment, pay SBC and BellSouth in proportion to their Specified Interests an aggregate UTI a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (32,500,000 and shall promptly, but in no event later than two days after being notified of such by UTI, pay to UTI an amount equal to all of the "Termination Fee") charges and expenses incurred by UTI in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $2,500,000, in each case payable by wire transfer of same day funds. Upon .
(d) In the payment event that this Agreement is terminated by UTI pursuant to Section 7.3 (c), then PEC shall promptly, but in no event later that two days after the date UTI makes a written request for payment, pay UTI a termination fee of $2,500,000 and shall promptly, but in no event later than two days after being notified as such by UTI, pay to UTI an amount equal to all of the Termination Fee out of pocket charges and expenses incurred by UTI in connection with this Agreement and the Expensestransactions contemplated for this Agreement up to a maximum of $2,500,000 in each case payable by wire transfer.
(e) In the event that this Agreement is terminated by PEC pursuant to Section 7.4 (c), then UTI shall promptly, but in no event later that two days after the Company date PEC makes a written request for payment, pay PEC a termination fee of $2,500,000 and shall have promptly, but in no further liabilities or obligations under event later than two days after being notified as such by PEC, pay to PEC an amount equal to all of the out of pocket charges and expenses incurred by PEC in connection with this Section 8.5(b). The Company acknowledges Agreement and the transactions contemplated for this Agreement up to a maximum of $2,500,000 in each case payable by wire transfer.
(f) UTI and PEC each acknowledge that the agreements contained in this Section 8.5(bSections 7.5(b), (c), (d) and (e) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular UTI and PEC would not enter into this Agreement; accordingly, if the Company UTI fails to promptly pay the amount due pursuant to this Section 8.5(b7.5(b) or (e), or PEC fails to promptly pay the amount due pursuant to Section 7.5(c) or (d) and, in order to obtain such payment, Cingular PEC or UTI, as the case may be, commences a suit that which results in a judgment against PEC or UTI, as the Company case may be, for the fee set forth in this Section 8.5(b) or any portion of such fee7.5, the Company UTI shall pay to Cingular PEC or PEC shall pay to UTI, as the case may be, its costs and expenses (including attorneys' fees) in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the fee amounts owed at the prime rate of Citibank, N.A. Well▇ ▇▇▇go Bank in effect on the date from time to time during such payment was required to be made from the date such payment was required to be made through the date of paymentperiod plus two percent.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Energy Inc), Merger Agreement (Uti Energy Corp)
Effect of Termination and Abandonment. (a) In the event of a the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors agents or advisors) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 10.2 and except that nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In If (i)(x) the event that Offer shall have remained open for a minimum of at least 20 business days, (y) after the date hereofhereof any corporation, partnership, person or other entity or group (as described in Section 13(d)(3) of the Exchange Act) other than Purchaser and Merger Sub, any affiliate or associate of Purchaser and Merger Sub or any designees of Purchaser and Merger Sub shall have become the beneficial owner of 9.9% or more of the outstanding Shares or shall have publicly announced a proposal or intention to make an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") or shall have been publicly made orcommenced, after the date hereof, any Person or shall have publicly announced an intention to commence, a tender offer or exchange offer for 9.9% or more of the outstanding Shares, and (whether z) the Minimum Condition (as defined in Annex A) shall not have been satisfied and the Offer is terminated without the purchase of any Shares thereunder or not conditionalpursuant to Section 9.2(iii), or (ii) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular Purchaser pursuant to Section 9.3, or (iii) this Agreement is terminated by the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c9.4(a), (i) then the Company (p) shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf Purchaser a termination fee of it$4,000,000 payable by wire transfer of same day funds, SBC and BellSouth and their respective Affiliates incurring (q) shall promptly, but in no event later than two calendar days after being notified of such by Purchaser, pay all of the charges and expenses incurred by Purchaser or Merger Sub in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingularhereby, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses"1,000,000; provided, however, that no termination fee shall be payable to Purchaser by reason of Section 9.5(b)(i) payable by wire transfer or a termination of same day funds this Agreement pursuant to Section 9.3(d) or 9.4(a) unless and (ii) if, within 15 months after such termination until (I) any Person person or entity (other than Cingular or any of its AffiliatesPurchaser) (an "Acquiring Party") has entered into an agreement (X) toacquired, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationotherwise, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation within 24 months of such transaction or transactions would cease to own directly or indirectly at least 60% termination, a majority of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all of the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, Company or (II) there has been consummated any such a merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company and an Acquiring Party or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)affiliate thereof. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Purchaser and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) Purchaser or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.Merger Sub
Appears in 2 contracts
Sources: Merger Agreement (Solvay S a /Adr/), Merger Agreement (Unimed Pharmaceuticals Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination in Section 5.11 and this Section 10.05 and except that nothing herein shall relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal of (but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter termination of this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b10.01(b), (c) or (d) and if prior thereto any person shall have made a bona fide proposal concerning a GranCare Business Combination Transaction (as hereinafter defined) or (ii) any termination of this Agreement by Cingular Vitalink pursuant to Section 8.4(a) or Section 8.4(c10.02(a), (ib), (c) or (d) or any termination of this Agreement by GranCare pursuant to Section 10.03(e), then the Company GranCare shall promptly, but in no event later than two business days after the date promptly pay Vitalink by wire transfer of such termination, pay immediately available funds to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges an account specified by Vitalink up to $2.5 million for all documented fees and expenses incurred by Vitalink (including the fees and expenses of counsel, accountants, consultants and advisors) in connection with this Agreement and the transactions contemplated hereby all hereby. In the event of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with a termination of this Agreement and the transactions contemplated by this Agreement up pursuant to a maximum amount Section 10.03(e), GranCare shall be obligated to pay Vitalink an additional fee of $40,000,000 17.5 million (the "ExpensesGranCare Termination Payment") payable prior to and as a condition of such termination as follows: (i) $7.5 million promptly by wire transfer of same day immediately available funds to an account specified by Vitalink and (ii) if$10 million by either, within 15 months after such termination at GranCare's discretion, (Ix) any Person delivery to Vitalink of an irrevocable letter of credit for $10 million or (other than Cingular or any y) deposit of its Affiliates) has entered into $10 million in immediately available funds to an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationescrow, in one transaction or any related series the case of transactions, 40% or more each of the voting power clause (x) and (y) on terms satisfactory to Vitalink with payment of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect such $10 million to any transaction or series of related transactions after which stockholders of the Company be made to Vitalink in immediately available funds immediately prior to and as a condition of effecting the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions GranCare Business Combination Transaction contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses definitive agreement (including attorneys' fees) in connection with such suit, together with interest on the amount of such payments and the fee at manner specified herein for making such payments, the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment."GranCare Payments"
Appears in 2 contracts
Sources: Merger Agreement (New Grancare Inc), Merger Agreement (New Grancare Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agentsagents or advisors (financial, legal and financial advisors or accounting) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 9.5(b) below and Section 10.2 and except that nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In If this Agreement is terminated (x) by the event that Company pursuant to Section 9.4(b) then the Company shall at or prior to the time of such termination, pay Purchaser a fee of $10,000,000 (the "Termination Fee"), which amount shall be payable in same day funds, plus an amount equal to Purchaser's out-of-pocket expenses, including fees and expenses paid to investment bankers, lawyers and financing sources, incurred in connection with the transactions contemplated by this Agreement in an amount not to exceed $1,500,000 (the "Purchaser Expenses") or (y) by the Company or Purchaser at any time after (i) the Offer shall have remained open for a minimum of at least 20 business days, (ii) after the date hereofhereof any corporation, an Acquisition Proposal partnership, person, other entity or group (but substituting 40% for as defined in Section 13(d)(3) of the 15% threshold set forth in the definition thereofExchange Act) other than Purchaser or Merger Sub or any of their respective subsidiaries or affiliates (collectively, a "Covered ProposalPerson") shall have been publicly made or, after become the date hereof, beneficial owner of 15% or more of the outstanding Shares or any Person shall have commenced, or shall have publicly announced an intention to commence, a tender offer or exchange offer for 15% or more of the outstanding Shares, and (whether or iii) the Minimum Condition (as defined in Annex A) shall not conditional) to make a Covered Proposal have been satisfied and thereafter this Agreement the Offer is terminated without the purchase of any Shares thereunder, or by either Cingular or the Company Purchaser pursuant to Section 8.2(b) or by Cingular 9.3 then, if terminated pursuant to Section 8.4(a) or Section 8.4(c)9.3, (i) then the Company shall promptly pay to Purchaser the Purchaser Expenses and, if within 18 months of the date of any termination referred to in clause (y) of this Section 9.5(b), the Company or any of its subsidiaries shall consummate an Acquisition Transaction, the Company shall, promptly, but in no event later than two business days after the date of entry into such terminationagreement, pay Purchaser the Termination Fee and shall also pay to Cingular on behalf of itPurchaser the Purchaser Expenses, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the if not previously paid. The Company or (Y) with respect to agrees that it will not structure any transaction or series agreement for the purpose of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the avoiding payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)Fee. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Purchaser and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular Purchaser or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Purchaser or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from made. 21
(c) If this Agreement is terminated by the Company pursuant to Section 9.4(a)(i) or (ii) then Purchaser shall promptly pay to the Company an amount equal to the Company's out-of-pocket expenses, including fees and expenses paid to investment bankers and lawyers incurred in connection with the transactions contemplated by this Agreement in an amount not to exceed $1,500,000. If, solely as a result of the occurrence of any of the events specified in paragraph (h) of Annex A, Merger Sub and Purchaser (i) terminate the Offer without paying for Shares or (ii) extend the expiration date of the Offer beyond September 30, 1997, then Purchaser shall, prior to or at the time of such termination in the case of clause (i) above or on September 30, 1997 in the case of clause (ii) above, pay to the Company a fee of $40,000,000 in same day funds, less any amounts paid pursuant to the preceding sentence. Purchaser acknowledges that the agreements contained in this Section 9.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Purchaser fails to promptly pay the amount due pursuant to this Section 9.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Purchaser for the fee set forth in this paragraph (c), Purchaser shall pay to the Company its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of such payment at the prime rate of Citibank, N.A. on the date such payment was required to be made through the date of paymentmade. ARTICLE X MISCELLANEOUS AND GENERAL 10.1.
Appears in 2 contracts
Sources: Merger Agreement (Theratx Inc /De/), Merger Agreement (Vencor Inc)
Effect of Termination and Abandonment. (a) In the event of a the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional grossly negligent breach of this Agreement.
(b) In the event that this Agreement is terminated (i) by the Company pursuant to Section 8.3(a) or (ii) by Parent pursuant to Section 8.4(a), then the Company shall promptly, but in no event later than two days after the date hereof, of such termination or date of entrance into an agreement concerning a transaction that constitutes an Acquisition Proposal or such earlier time as required by this Agreement, pay to Parent a termination fee of $25 million payable by wire transfer of same day funds.
(but substituting 40% for c) In the 15% threshold set forth in event that this Agreement is terminated by Parent pursuant to Section 8.2(b) and prior to, or at the definition thereof) (a "Covered Proposal") time of, the meeting referred to therein any Person shall have been publicly made or, after an Acquisition Proposal to the date hereof, Company or any Person of its Subsidiaries or any of its stockholders or shall have publicly announced an intention (whether or not conditional) conditional to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries and, if within 12 months of such termination, the Company enters into an agreement concerning a Covered Proposal and thereafter transaction that constitutes an Acquisition Proposal, the Company at the time of entering into such agreement, shall pay to Parent the termination fee of $25 million payable by wire transfer of same day funds.
(d) In the event this Agreement is terminated by either Cingular or the Company Parent pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c8.4(b), (i) then the Company shall promptly, but in no event later than two business days after the date Parent shall have requested payment of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring its charges and expenses incurred in connection with this Agreement and the transactions contemplated hereby all ("Expenses"), pay to Parent the amount of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement such Expenses up to a maximum amount of $40,000,000 (the "Expenses") 3,000,000 payable by wire transfer of same day funds and funds.
(iie) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire In the event this Agreement is terminated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect pursuant to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 8.3(b), then the Company shall, promptly following such eventParent shall promptly, but in no event later than two business days after such eventthe Company shall have requested payment of its Expenses, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee the Company the amount of such Company Expenses up to a maximum of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 3,000,000 payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). .
(f) The Company acknowledges and Parent each acknowledge that the agreements contained in this Section 8.5(bSections 8.5(b)-(e) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the Company, Parent and Merger Subsidiary would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), Section 8.5(c) or Section 8.5(d), or Parent fails to promptly pay the amount due pursuant to Section 8.5(e), and, in order to obtain such payment, Cingular Parent or the Company, as the case may be, commences a suit that which results in a judgment against Parent or the Company Company, as the case may be, for the fee set forth in this Section 8.5(b) or any portion of such feeamount, the Company shall pay to Cingular Parent or Parent shall pay to the Company, as the case may be, its costs and expenses (including attorneys' fees) in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the fee amounts owed at the prime rate of Citibank, N.A. ▇▇▇▇▇▇ Guaranty Trust Company of New York in effect on the date from time to time during such payment was required to be made from the date such payment was required to be made through the date of paymentperiod plus two percent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Capital Re Corp), Agreement and Plan of Merger (Ace LTD)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement (other than as set forth in Section 9.1) shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its directorsthem shall have any liability of any nature whatsoever hereunder, officersor in connection with the transactions contemplated hereby, employeesexcept that Sections 6.3 (Press Releases), agents, legal 6.13 (Confidentiality Agreement) and financial advisors or 9.5 (Expenses) and this Section 8.2 and all other representatives)obligations of the parties specifically intended to be performed after the termination of this Agreement shall survive any termination of this Agreement; provided, however, that, except as otherwise provided notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach provision of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular Buyer pursuant to Section 8.1(g), the Company shall pay to Buyer an amount equal to $9,335,100 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a8.1(e) or Section 8.4(c)8.1(b) due to the failure to obtain the approval of the Company’s shareholders required for the consummation of the Merger, and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to the Company Meeting or prior to the date specified in Section 8.1(b), as applicable, and (ii) within 12 months of such termination, the Company shall have (x) recommended to its shareholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall promptlypay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), but all references in no the definition of Acquisition Transaction to “15%” shall instead refer to “50%.”
(d) In the event later than two business days after that this Agreement is terminated by Buyer pursuant to Section 8.1(c) and (i) an Acquisition Proposal with respect to the date Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.1(c) and (ii) within 12 months of such termination, pay the Company shall have (x) recommended to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth its shareholders or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to consummated a maximum amount of $40,000,000 transaction qualifying as an Acquisition Transaction or (the "Expenses"y) payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an a definitive agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates)an Acquisition Transaction, then the Company shall, promptly following such event, but in no event later than two business days after such event, shall pay SBC and BellSouth in proportion to their Specified Interests Buyer an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (amount equal to the "Termination Fee". For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%.”
(e) payable by wire transfer of same day funds. Upon the Any payment of the Termination Fee and required to be made pursuant to this Section 8.2 shall be made not more than two (2) Business Days after the Expenses, date of the Company shall have no further liabilities or obligations event giving rise to the obligation to make such payment. All payments under this Section 8.5(b). The 8.2 shall be made by wire transfer of immediately available funds to an account designated by Buyer.
(f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Cingular Buyer would not enter have entered into this Agreement; accordingly. Accordingly, if the Company fails promptly to promptly pay the any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Cingular Buyer commences a suit that which results in a judgment against the Company for the fee amount set forth in this Section 8.5(b) or any portion of such fee8.2, the Company shall pay to Cingular Buyer its costs and expenses (including reasonable attorneys' fees’ fees and expenses) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank(as reported in The Wall Street Journal or, N.A. if not reported therein, in effect another authoritative source) on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (NBT Bancorp Inc), Merger Agreement (Alliance Financial Corp /Ny/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no Party to this Agreement shall have any liability or further obligation to any other Party hereunder except (other than i) as set forth in this Section 9.18.02 and Section 9.01 and (ii) shall become void and of no effect with no that termination will not relieve a breaching Party from liability on the part for any willful breach of any party hereto (covenant, agreement, representation or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach warranty of this AgreementAgreement giving rise to such termination.
(b) In recognition of the event efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the Parties hereto agree that after the date hereofCompany shall pay to Parent a fee of $4.0 million (the “Company Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(g) or (h), an Acquisition Proposal then the Company shall pay the Company Termination Fee to Parent on the first Business Day following such termination;
(but substituting 40% for the 15% threshold set forth in the definition thereofii) if (a "Covered Proposal"A) shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b8.01(c) and (B) at any time after the date of this Agreement an Acquisition Proposal with respect to the Company shall have been publicly announced and not withdrawn prior to the meeting of shareholders of the Company contemplated by Section 6.02, or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal and shall not have publicly withdrawn such announcement, communication or intention prior to the meeting of shareholders of the Company contemplated by Cingular pursuant to Section 8.4(a) 6.02, and if within 18 months after such termination of this Agreement the Company or Section 8.4(c)a Subsidiary of the Company enters into a definitive agreement with respect to, (i) or consummates a transaction which is the subject of, an Acquisition Proposal, then the Company shall promptlypay to Parent the Company Termination Fee on the earlier of the date of execution of such agreement or consummation of such transaction; and
(iii) If (A) this Agreement is terminated by either Parent or the Company pursuant to Section 8.01(f) or by Parent pursuant to Section 8.01(e), but in no event later than two business days (B) at any time after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after before such termination (I) an Acquisition Proposal with respect to the Company shall have been publicly announced, or any Person (other than Cingular shall have publicly announced, communicated or any of its Affiliates) has entered into an agreement (X) tomade known, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer communicated or similar business combination, in one transaction or any related series of transactions, 40% or more of made known to the voting power of the outstanding securities senior management of the Company, an intention, whether or ownership or control not conditional, to make an Acquisition Proposal, (C) following the occurrence of 40% or more of the consolidated assets of the Company or an event specified in clause (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesB), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities intentionally breached (and not cured after notice thereof) any of its representations, warranties, covenants or obligations under agreements set forth in this Agreement, which breach shall have materially contributed to the failure of the Effective Time to occur prior to the termination of this Agreement, and (D) if within 18 months after such termination of this Agreement the Company or a Subsidiary of the Company enters into a definitive agreement with respect to, or consummates a transaction which is the subject of, an Acquisition Proposal, then the Company shall pay to Parent the Company Termination Fee on the earlier of the date of execution of such agreement or consummation of such transaction. Any amount that becomes payable pursuant to this Section 8.5(b). 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company acknowledges and Parent agree that the agreements agreement contained in paragraph (b) of this Section 8.5(b) are 8.02 is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreement Parent would not enter have entered into this Agreement; accordingly, if Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay Parent the amount amounts due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against under paragraph (b) above within the Company for the fee set forth in this Section 8.5(b) or any portion of such feetime periods specified therein, the Company shall pay to Cingular its the costs and expenses (including attorneys' feesreasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibankprevailing during such period as published in The Wall Street Journal, N.A. in effect calculated on the date such payment was required to be made a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
(d) Notwithstanding anything to the contrary contained herein, the Company shall be obligated, subject to the terms of this Section 8.02, to pay only one Company Termination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Northeast Pennsylvania Financial Corp), Merger Agreement (KNBT Bancorp Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no further force or effect with and no party shall have any liability on the part of to any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representatives)Affiliates) with respect hereto; provided, however, and notwithstanding anything in the foregoing to the contrary, that, except as otherwise provided herein(i) this Section 8.5(a) and the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement and the parties hereto may have further liability with respect thereto, no such termination shall relieve any party hereto and (ii) liability may exist for willful or intentional breaches of any liability or damages resulting from any this Agreement (where willful or intentional breach means a breach of this Agreement by a party that has actual knowledge that its action (or failure to act) would reasonably be expected to breach this Agreement.
(b) In by a party prior to the event that after time of such termination and, in the date hereofcase of Parent and Merger Sub, an Acquisition Proposal (but substituting 40% any failure to have sufficient immediately available funds at the Closing for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date consummation of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up (which liability the parties hereto acknowledge and agree shall not be limited to a maximum amount reimbursement of $40,000,000 expenses or out-of-pocket costs).
(b) If this Agreement is terminated pursuant to this Article VIII and any alternative transaction is consummated (including any transaction or proceeding that permits the "Expenses"E-Side Debtors that are the direct or indirect owners of Oncor Holdings to emerge from the Chapter 11 Cases) payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or pursuant to which neither Parent nor any of its Affiliates) has entered into an agreement (X) toAffiliates will obtain direct or indirect ownership of 100% of Oncor Holdings and Oncor Holdings’ approximately 80% equity interest in Oncor, directly or indirectlythen, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more subject to the approval of the voting power of the outstanding securities of the CompanyBankruptcy Court, or ownership or control of 40% or more of the consolidated assets of the Company or no later than five (Y5) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to days following the consummation of such transaction or transactions would cease alternative transaction, the Company and EFIH shall pay to own directly or indirectly at least 60% Parent the Termination Fee (as defined below), by wire transfer, as directed by Parent, in immediately available funds; provided, however, that the Termination Fee (as defined below) will not be payable if this Agreement is terminated (i) pursuant to Section 8.1, (ii) by Parent pursuant to Section 8.2(a) and the receipt of the voting power PUCT Approval (without the imposition of a Burdensome Condition) is the only condition set forth in Article VII not satisfied or waived in accordance with this Agreement (other than those conditions that by their nature or pursuant to the terms of this Agreement are to be satisfied at the Closing) or 8.2(b), or 8.4(g) (unless the Chapter 11 Cases are dismissed or converted to Chapter 7 of the outstanding securities of Bankruptcy Code with respect to the Company (or of another Person that directly EFIH in which case the Termination Fee is payable) or indirectly would own all Section 8.4(i) if the Plan Support Agreement is terminated pursuant to a breach thereof by Parent or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transactionMerger Sub, or (IIiii) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between by the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliatespursuant to Section 8.3(a), then 8.3(b), or 8.3(g) to the extent that the Plan Support Agreement is terminated pursuant to a breach thereof by Parent or Merger Sub. In the event the Company shall, promptly following such event, but in no event later than two business days after such event, and EFIH pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company for Company, EFIH and their respective Affiliates, Representatives, creditors or shareholders with respect to any breach of this Agreement prior to such termination. Subject to the fee set forth in Bankruptcy Court’s approval of the Termination Fee, the Company’s and EFIH’s obligation to pay the Termination Fee pursuant to this Section 8.5(b) or any portion shall survive the termination of such feethis Agreement. The Termination Fee, to the extent approved by the Bankruptcy Court, shall constitute an administrative expense of the Company and EFIH under the Bankruptcy Code. “Termination Fee” shall pay mean an amount equal to Cingular its costs $275,000,000, inclusive of all expense reimbursements, including reasonable and expenses documented professional fees of Parent and Merger Sub; provided that, in no event shall such claim be senior or pari passu with the superpriority administrative claims granted to the secured parties pursuant to the DIP Facility (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. as in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymenthereof).
Appears in 2 contracts
Sources: Merger Agreement (Nextera Energy Inc), Merger Agreement (Energy Future Intermediate Holding CO LLC)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in than, with respect to the parties hereto, the obligations pursuant to this Section 9.19.5 and Sections 10.1 and 10.2) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional wilful breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereofx) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b9.3(a) or (y) this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (i9.4(i) then the Company shall promptly, but in no event later than two business days after the date of such terminationtermination or event, pay to Cingular on behalf Parent a termination fee of it$20,000,000 (the "Termination Fee") and shall promptly, SBC and BellSouth and their respective Affiliates incurring charges and expenses but in connection with this Agreement and the transactions contemplated hereby no event later than two days after being furnished documentation in respect thereto by Parent, pay all of the charges and expenses expenses, including those of the Exchange Agent, actually incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Newco in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 3,000,000 (the "ExpensesExpense Reimbursement") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination), in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") each case payable by wire transfer of same day funds. Upon If (A) this Agreement is terminated by the payment Parent pursuant to Section 9.4(iii) or by the Company pursuant to Section 9.3(b)(i)(y) when the Offer is terminated by Parent under the circumstances contemplated by Section 9.4(iii), and (B) within one year after such termination either (X) the Company enters into an agreement to merge with another company (other than a merger pursuant to which the shareholders of the Company will acquire more than 50% of the voting securities of such surviving corporation) or enters into an agreement pursuant to which more than 50% of the Shares are acquired by another person or pursuant to which new voting securities are issued to another person or to the shareholders of another company which will aggregate more than 50% of the outstanding voting securities of the Company after such issuance, or (Y) another Person acquires more than 50% of the Shares, then the Company shall promptly, but in no event later than two days after the date of any of the events in (X) or (Y), pay Parent the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)Expense Reimbursement. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Newco would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular Parent or Newco commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Parent or Newco its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Taqu Inc), Merger Agreement (Giddings & Lewis Inc /Wi/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 9.5(b) below and Section 10.2 and except that nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement. Nothing herein shall limit the ability of the Company upon termination of this Agreement in accordance with its terms to make the Rights (or any similar rights issued under any new rights agreement entered into by the Company) applicable to any proposal or offer made by Praxair or any affiliate thereof.
(b) In If (x)
(i) the event that Amended Offer shall have remained open for a minimum of at least 10 business days, (ii) after the date hereofhereof any corporation, partnership, person, other entity or group (as defined in Section 13(d)(3) of the Exchange Act) other than Praxair or Purchaser or any of their respective subsidiaries or affiliates (collectively, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered ProposalAcquiring Person") shall have become the beneficial owner of 10% or more of the outstanding Shares, and (iii) the Minimum Tender Condition (as defined in Annex A) shall not have been publicly made orsatisfied and the Amended Offer is terminated in accordance with this Agreement without the purchase of any Shares thereunder, after the date hereof, any Person (y) Praxair shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter terminated this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b9.3(y) hereof or by Cingular (z) the Company shall have terminated this Agreement pursuant to Section 8.4(a9.4(iii) or Section 8.4(c)hereof, (i) then the Company Company, if requested by Praxair, shall promptly, but in no event later than two business days after the date of such terminationrequest, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Praxair a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 43,500,000 which amount shall be payable by wire transfer of in same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Praxair and Purchaser would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular Praxair or Purchaser commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Praxair or Purchaser its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect ▇▇▇▇▇▇ Guaranty Trust Company of New York on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Px Acquisition Corp), Merger Agreement (Px Acquisition Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.110.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In Subject to the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold limitations set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made orbelow, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant agrees to Section 8.2(bpay Parent a fee of $11 million (the “Termination Fee”) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company and shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses of Parent actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and prior to termination relating to the transactions contemplated by this Agreement (including, but not limited to, reasonable fees and expenses of Parent’s counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors) up to a maximum amount of $40,000,000 1 million (the "“Expenses") ”), in each case payable by wire transfer in immediately available funds in the event this Agreement is terminated:
(i) (A) by Parent or the Company as permitted by Section 9.2(a) or (b), (B) after the date of same day funds this Agreement and prior to the Company Meeting, an Acquisition Proposal was made to the Company or publicly disclosed and not publicly withdrawn in good faith and without qualification prior to, with respect to any termination pursuant to Section 9.2(a), the date of such termination and, with respect to any termination pursuant to Section 9.2(b), the tenth (10th) Business Day prior to the date of the Company Meeting and (iiC) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement), or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal; provided, however, that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 15 twelve (12) months after of such termination (I) termination, the Company or any Person of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than Cingular a confidentiality agreement), or shall have consummated, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates;
(ii) has entered into an agreement by the Company (XA) topursuant to Section 9.2(b) and, directly on or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more prior to the date of the voting power Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or failed to occur, or (B) pursuant to Section 9.3(a); or
(iii) by Parent pursuant to Section 9.4(a). If the Agreement is terminated, the Termination Fee shall be paid by the Company no later than: (x) in the case of clause (i) above, two (2) Business Days after the first to occur of the outstanding securities execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of an Acquisition Proposal, failure to oppose an Acquisition Proposal or the consummation of the Acquisition Proposal; (y) in the case of clause (ii) above, at the time of termination of this Agreement; and (z) in the case of clause (iii) above, two (2) Business Days after termination of this Agreement. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Except in the case of willful or intentional breach of this Agreement by the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and Expenses shall be the Expenses, the Company shall have no further liabilities or obligations sole and exclusive remedy of Parent under this Section 8.5(b)Agreement. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if . If the Company fails to promptly pay both the amount due pursuant to Termination Fee and Expenses in accordance with this Section 8.5(b), 9.5(b) and, in order to obtain such payment, Cingular Parent commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeTermination Fee and/or Expenses, as the case may be, the Company shall pay to Cingular Parent its reasonable costs and expenses (including reasonable attorneys' fees’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the fee Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate of Citibank, N.A. Citibank in effect on the date such payment was required to be made from made, after delivery to the date Company of reasonable documentation evidencing such payment was required to be made through the date of paymentcosts and expenses.
Appears in 2 contracts
Sources: Merger Agreement (Computer Associates International Inc), Merger Agreement (Niku Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.110.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, that except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an (i)(A) a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company, and thereafter on or following the date of this Agreement but prior to the date that the Offer is consummated, such Acquisition Proposal, announcement or intention is or becomes publicly known, and (B) on or following the date on which such Acquisition Proposal, announcement or intention is or becomes publicly known, this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b9.2(i), or (ii) or this Agreement is terminated (x) by Cingular the Company pursuant to Section 8.4(a9.3, or (y) by Parent pursuant to Section 9.4, or (z) pursuant to Section 8.4(c9.2(iv) as a result of the failure of the Company to satisfy any one of the conditions set forth in paragraphs (c), (ie) or (f) of Annex A, then the Company shall promptly, but in no event later than two business days (2) Business Days after the date of such terminationnotification by Parent of the amount, pay to Cingular on behalf of itreimburse Parent for all costs, SBC and BellSouth and their respective Affiliates incurring charges and expenses incurred by Parent or Merger Sub in connection with this Agreement, the Stock Option Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Shareholders Agreement and the transactions contemplated by this Agreement and the Stock Option Agreement and the Shareholders Agreement, including, without limitation, fees and expenses of accountants, attorneys and financial advisors, up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction 1,000,000 in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but aggregate. Such amount shall be payable in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable cash by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a binding nonappealable judgment rendered by a court of competent jurisdiction against the Company for the fee set forth in this Section 8.5(bparagraph (b) or any portion of such fee, the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. Chase Manhattan Bank in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dupont E I De Nemours & Co)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of that any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") person shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered OSI Alternative Proposal for OSI and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a9.3(a) or Section 8.4(c9.4(d), (i) then the Company OSI shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to CRA a maximum amount fee of $40,000,000 (the "Expenses") 10 million, which amount shall be payable by wire transfer of same day funds and (ii) ifeither on the date contemplated in the last sentence of 9.3 if applicable or, otherwise, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day fundsamount becomes due. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company OSI acknowledges that the agreements contained in this Section 8.5(b9.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular CRA would not enter into this Agreement; accordingly, if the Company OSI fails to promptly properly pay the amount due pursuant to this Section 8.5(b), 9.5(a) and, in order to obtain such payment, Cingular CRA commences a suit that which results in a judgment against the Company OSI for the fee set forth in this Section 8.5(b) or any portion of such fee9.5(a), the Company OSI shall pay to Cingular CRA its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on in the amount of the fee at the prime rate of Citibank12% per annum.
(b) In the event that any person shall have made a CRA Alternative Proposal for CRA and thereafter this Agreement is terminated pursuant to Section 9.4(a) or 9.3(d), N.A. in effect then CRA shall pay to OSI a fee of $10 million, which amount shall be payable by wire transfer of same day funds either on the date contemplated in the last sentence of 9.4 if applicable or, otherwise, within two business days after such payment was required amount becomes due. CRA acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, OSI would not enter into this Agreement; accordingly, if CRA fails to be made properly pay the amount due pursuant to this Section 9.5(b) and, in order to obtain such payment, OSI commences a suit which results in a judgment against CRA for the fee set forth in this Section 9.5(b), CRA shall pay to OSI its costs and expenses (including attorneys' fees) in connection with such suit, together with interest in the amount of the fee at the rate of 12% per annum.
(c) In the event of termination of this Agreement and the abandonment of the Mergers pursuant to this Article 9, all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section 9.5 and Section 7.11 and except for the provisions of Article 10. Moreover, in the event of termination of this Agreement pursuant to Section 9.3 or 9.4, nothing herein shall prejudice the ability of the non-breaching party from seeking damages from any other party for any breach of this Agreement, including without limitation, attorneys' fees and the date such payment was required right to be made through the date of paymentpursue any remedy at law or in equity.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Cra Managed Care Inc), Agreement and Plan of Reorganization (Occusystems Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except (i) as otherwise provided herein, in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(bi) In The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that after the date hereof, (A) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to (x) Section 8.2(b8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by Cingular the Company pursuant to Section 8.4(a8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.4(c8.04(d), .
(iii) then the Company Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two business days Business Days after the date of such termination; provided that with respect to clause (2) above, pay the Termination Fee shall be paid by the Company prior to Cingular on behalf termination of itthis Agreement; and provided further that with respect to clause (1) above, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of Termination Fee shall be paid prior to the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered Company’s entering into an agreement (X) toAlternative Acquisition Agreement or consummating, directly approving or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer recommending an Acquisition Proposal or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of within two Business Days following notice from Parent if the Company or shall have failed to oppose such Acquisition Proposal.
(Yiii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any transaction breach of any covenant or series of related transactions after which stockholders of the Company immediately prior agreement giving rise to the consummation of such transaction or transactions would cease payment, subject to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company Section 8.05(c).
(or of another Person that directly or indirectly would own all or substantially all the assets of the Companyc) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreements Parent would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feetime period specified therein, the Company shall pay to Cingular its all costs and expenses (including attorneys' ’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime rate of Citibank, N.A. interest printed in effect The Wall Street Journal on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Community Bancorp Inc), Merger Agreement (First Community Bancorp /Ca/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Transaction pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors officers or other representativesRepresentatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this AgreementAgreement prior to such termination.
(b) In the event that either:
(i) at any time after the date hereof, an of this Agreement and prior to its termination a bona fide Acquisition Proposal (but substituting 40% assuming, for the this purpose only, that all references to “15% threshold set forth %” in the definition thereofof such term were changed to “40%”) (a "“Covered Proposal"”)) shall have been publicly made (or, after if made prior to the date hereofof this Agreement, been reaffirmed thereafter) to the Company or any of its Subsidiaries or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated (A) by either Cingular Parent or the Company pursuant to Section 8.2(bSection
8.1 (b)(i) or Section 8.1(b)(iii) or (B) by Cingular Parent pursuant to Section 8.4(a8.1(c)(ii) and, in each case, any such Covered Proposal or publicly announced intention which shall have been so made (or reaffirmed) shall not have been withdrawn at the time of the event that gave rise to the termination right; or
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(c)(i) or Section 8.4(c8.1(c)(iii), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf Parent a termination fee of it$7.5 million (the “Termination Fee”) and shall promptly, SBC and BellSouth and their respective Affiliates incurring charges and expenses but in connection with this Agreement and the transactions contemplated hereby no event later than two days after being notified of such by Parent, pay all of the charges documented out-of-pocket expenses, including those of the Paying Agent and expenses actually any dealer manager, incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination1.5 million, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") each case payable by wire transfer of same day funds. Upon the payment of the ; provided, however, that no Termination Fee shall be payable with respect to a termination described in clause (i) of this Section 8.2(b) unless and the Expenses, until the Company shall have no further liabilities consummates, or obligations under enters into a definitive agreement providing for, any Covered Proposal with any Person (other than Parent or its affiliates) within 15 months after the date on which this Section 8.5(b). Agreement is so terminated.
(c) The Company acknowledges that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the any amount due pursuant to this Section 8.5(b)8.2, and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth fee, charges or expenses to which reference is made in this Section 8.5(b) or any portion of such fee8.2, the Company shall pay to Cingular Parent or Merger Sub its reasonable costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from made. Notwithstanding anything to the date such payment was required contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee and/or out-of-pocket expenses become payable and are paid by the Company pursuant to this Section 8.2, the Termination Fee and out-of-pocket expenses shall be made through the date of paymentParent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
Effect of Termination and Abandonment. (a) Any proper termination of this Agreement under Section 8.2, 8.3 or 8.4 above will be effective immediately upon the delivery of written notice of termination by the terminating party to the other parties hereto. In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any material or willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an (i) a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company and made known to stockholders of the Company generally or has been made directly to stockholders of the Company generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Acquisition Proposal regarding the Company and such Acquisition Proposal or announced intention shall not have been withdrawn prior to the Stockholders' Meeting of the Company and thereafter this Agreement is terminated by either Cingular Parent or the Company Company, as applicable, pursuant to Section 8.2(b) or, following a willful and material breach by the Company of this Agreement, Section 8.4(b), or (ii) this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Parent a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of twenty-five million dollars ($1,400,000,000 (One Billion Four Hundred Million Dollars25,000,000) (the "Termination Fee") payable by wire transfer of same same-day funds. Upon ; provided, however, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph, unless within twelve (12) months of such termination the Company enters into an agreement providing for an Acquisition of the Company (as defined below) and an Acquisition of the Company is consummated within eighteen (18) months of such termination, in which event payment of the such Termination Fee and shall be made promptly, but in no event later than two (2) business days after consummation of such Acquisition of the Expenses, Company. The term "Acquisition of the Company shall have no further liabilities or obligations under Company" for purposes of this Section 8.5(b) means any of the following transactions involving the Company: (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the stockholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction or any direct or indirect parent thereof, (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale, or (iii) the acquisition by any Person or group (including by way of a tender offer or an exchange offer or issuance by the party or such Person or group), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then-outstanding shares of capital stock of the Company. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to pay promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime lending rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Fair Isaac & Company Inc), Merger Agreement (HNC Software Inc/De)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in than, with respect to the parties hereto, the obligations pursuant to this Section 9.19.5 and Sections 10.1 and 10.2) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b9.3(a) or (ii) this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c9.4(i), (i) then the Company shall promptlyshall, but simultaneously with or prior to such termination, pay Parent a termination fee of $20,000,000 and pay, in no event later than two business days after the date of such termination, pay to Cingular on behalf Parent the amount of it, SBC all documented out-of-pocket expenses of Parent and BellSouth and their respective Affiliates incurring charges and expenses Purchaser incurred in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby all consummation of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by hereby.
(c) In the event that this Agreement up is terminated by Parent pursuant to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 9.4(ii), then the Company shall, shall promptly following such eventpay, but in no event later than two business days after the date of such eventtermination, pay SBC and BellSouth in proportion to their Specified Interests an aggregate a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (1,000,000 representing liquidated damages for Parent's internal costs and expenses plus the "Termination Fee") payable by wire transfer amount of same day funds. Upon all documented out-of pocket expenses of Parent and Purchaser incurred in connection with the payment negotiation and execution of the Termination Fee this Agreement and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part consummation of the transactions contemplated hereby.
(d) In the event that (i) this Agreement is terminated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails pursuant to promptly Section 9.3(b)(i)(x) or (y) or Section 9.3(b)(ii), then Parent shall promptly, but in no event later than two days after the date of such termination or event, pay the Company a termination fee of $1,000,000 plus the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against of all documented out-of-pocket expenses of the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) incurred in connection with such suit, together with interest on the amount negotiation and execution of this Agreement and the consummation of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymenttransactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Omniquip International Inc), Merger Agreement (Textron Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter If this Agreement is terminated by either Cingular or the Company or Parent pursuant to Section 8.2(b), 8.3(a) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), and (x) prior to such termination, a proposal with respect to a Transaction shall have been made, and (y) within two (2) years after such termination, either the Company enters into any agreement with respect to a Transaction whereby any third party shall acquire beneficial ownership of more than 50% of the Company's (i) then the Company shall promptly, but in no event later than two business days after the date outstanding shares of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth voting stock or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination assets (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire measured by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliatesfair market value), then the Company shallshall pay Parent, promptly following such eventby wire transfer of immediately available funds, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination a fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon Five Million Dollars ($5,000,000) within fifteen (15) business days after the payment execution of such agreement or the Termination Fee and the Expenses, the Company consummation of such acquisition (whichever shall have no further liabilities or obligations under this Section 8.5(bfirst occur). .
(b) The Company acknowledges that the agreements contained in this Section 8.5(b) 8.5 are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount Termination Fee when due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeCompany, the Company shall pay to Cingular reimburse Parent for its costs and expenses (including attorneys' fees) incurred in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibankrate, N.A. as then quoted in effect on The Wall Street Journal, from the date such payment the Termination Fee was required to be made paid.
(c) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article 8, all obligations of the parties hereto shall terminate, except (i) the obligations of the parties set forth in this Section 8.5 and Section 6.9, (ii) the provisions of Sections 9.3, 9.6, 9.9 and 9.13, and (iii) the Confidentiality Agreement previously executed between the Company and Parent (the "Confidentiality Agreement"). Moreover, in the event of termination of this Agreement pursuant to Section 8.3 or 8.4, nothing herein shall prejudice the ability of the nonbreaching party from seeking damages, after taking into account payment of the date Termination Fee, if such payment was required fee has been paid, from any other party for any willful breach of this Agreement, including without limitation, attorneys' fees and the right to be made through the date of paymentpursue any remedy at law or in equity.
Appears in 2 contracts
Sources: Merger Agreement (Engineering Measurements Co), Merger Agreement (Advanced Energy Industries Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Share Exchange pursuant to this Article VIII, this Agreement (other than as set forth in this Section 9.18.5 and Sections 5.3(d), 6.16 and Article IX) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter If this Agreement is terminated (i) by either Cingular Parent pursuant to Section 8.4(a) hereof, or (ii) by Parent or the Company pursuant to Section 8.2(b) and in either case within 12 months after the termination of this Agreement, the Company consummates or by Cingular pursuant enters into a definitive agreement to Section 8.4(a) or Section 8.4(c)consummate an Acquisition Proposal with any third party, (i) then the Company shall promptly, but pay to Parent a termination fee of $25,000,000 (the "TERMINATION Fee"). The Termination Fee shall be payable in cash and shall be due and owing no event later than two one business days after day following the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection third party consummates such Acquisition Proposal with the Company or its shareholders.
(c) If this Agreement and is terminated pursuant to (i) Section 8.2 (d) at a time when Parent has not received the requisite approvals of the FRS or the requisite approval pursuant to the NYBL to consummate the transactions contemplated hereby all or (ii) Section 8.2(a) at a time when Parent has not received the requisite approvals of the charges and expenses actually incurred by Cingular, SBC, BellSouth FRS or their respective Affiliates in connection with this Agreement and the requisite approval pursuant to the NYBL to consummate the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of hereby then Parent shall pay the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (25,000,000, such fee shall be payable in cash and due and owing no later one business day following the "Termination Fee") payable by wire transfer date of same day fundstermination. Upon the payment Payment of the Termination Fee such fee shall be in full satisfaction and the Expenses, settlement of any claims the Company shall or Parent otherwise might have no further liabilities against each other in respect of or obligations under this Section 8.5(b). Agreement.
(d) The Company acknowledges agrees that the agreements contained in this Section 8.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement and the Stock Option Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 2 contracts
Sources: Share Acquisition Agreement (Franklin Resources Inc), Share Acquisition Agreement (Franklin Resources Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 8.5(b) below and except that nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement. Without limiting the generality of the foregoing, if the Effective Time shall not have occurred by the Outside Date as a result of the failure to obtain FCC approval for the transactions contemplated by the Transfer Agreement, the ASX Waiver, or, if the ASX Waiver is not granted, the Shareholder Ratification, the Agreement shall remain in effect until terminated by the Company, which shall be the sole remedy of the Company in such event.
(b) In If the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") Company shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter terminated this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b8.4(ii) or by Cingular News Corp. shall have terminated this Agreement pursuant to Section 8.4(a8.3(ii) or (but, in the case of Section 8.4(c8.3(ii)(A), (i) then only if the Company has willfully or intentionally made a material breach of any representation, warranty or agreement for the purpose of avoiding payment of the Termination Fee (as hereinafter defined), which breach has not been cured within ten Business Days following receipt by the Company of notice of such breach from News Corp.) the Company, if requested by News Corp., in News Corp.'s sole discretion, shall promptly, but in no event later than two business days Business Days after the date of such terminationrequest, (i) pay News Corp. a fee (the "Termination Fee") equal to Cingular on behalf the sum of it, SBC (x) $20,000,000 and BellSouth (y) all actual and their respective Affiliates incurring charges documented out-of-pocket costs and expenses of News Corp. and Merger Sub (up to a maximum of $5,000,000) incurred in connection with this Agreement and the transactions contemplated hereby all consummation and negotiation of the charges Transactions, including, without limitation, legal, professional and expenses actually incurred by Cingularservice fees and expenses, SBC, BellSouth or their respective Affiliates which amount shall be payable in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Cingular News Corp. and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to comply with this Section 8.5(b), and, in order to obtain such paymentcompliance or damages in lieu thereof, Cingular News Corp. or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeTermination Fee, the Company shall pay to Cingular News Corp. its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of CitibankTermination Fee, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through under this Section 8.5(b) to the date of payment, at the rate of nine percent (9%) per annum.
Appears in 2 contracts
Sources: Merger Agreement (HMC Acquisition Corp /De/), Merger Agreement (Heritage Media Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (nor any of their respective officers, directors or agents) shall have any liability or further obligation to any other than party hereunder except as set forth in subsections (b) and (c) below and in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that9.01, except as otherwise provided herein, no such that termination shall not relieve any a party hereto of any from liability or damages resulting from for any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal Nortel Networks and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then agree that the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and Nortel Networks the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount sum of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) 225,000,000 (the "Termination Fee") solely as follows:
(i) if (x) the Company shall terminate this Agreement pursuant to Section 8.01(c) due to the failure of the parties to consummate the Merger by the relevant date (unless such failure results primarily from the action or inaction of Nortel Networks or any Subsidiary or other affiliate of Nortel Networks or from Nortel Networks' or Sub's inability to obtain consent or approval on a timely basis (in a manner satisfying the conditions set forth in 7.01(b)) of, or make any filing or registration with, any Governmental Authority) and (y) at any time after the date of this Agreement and at or before such termination there shall have been made to the Company or its stockholders an Acquisition Proposal and (z) within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with any third party providing for the consummation of an Acquisition Proposal or an Acquisition Proposal is consummated (it being understood that for the purposes of this Section 8.02(b)(i), all references to "20%" in the definition of "Acquisition Proposal" shall be replaced with "40%");
(ii) if (x) the Company or Nortel Networks shall terminate this Agreement pursuant to Section 8.01(d)(iv) due to the failure of the Company's stockholders to approve and adopt this Agreement and (y) at any time after the date of this Agreement and at or before the Company Meeting there shall exist an Acquisition Proposal which has been publicly announced or the existence of which is a matter of public knowledge and (z) within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with any third party providing for the consummation of an Acquisition Proposal or an Acquisition Proposal is consummated (it being understood that for the purposes of this Section 8.02(b)(ii), all references to "20%" in the definition of "Acquisition Proposal" shall be replaced with "40%");
(iii) if Nortel Networks shall terminate this Agreement pursuant to Section 8.01(b)(ii) following a willful breach by the Company of (A) the covenants or agreements contained in Section 6.06, or (B) following the making of an Acquisition Proposal to the Company or its stockholders, any of the covenants or agreements contained in Sections 6.01, 6.02, 6.03, 6.08 or 6.10; or
(iv) if Nortel Networks shall terminate this Agreement pursuant to Section 8.01(e).
(c) The Termination Fee required to be paid pursuant to subsection (b)(i) or (b)(ii) above shall be payable by wire transfer the Company to Nortel Networks not later than two Business Days after the date the Company enters into a definitive agreement providing for, or the date of same day fundsconsummation of, an Acquisition Proposal, whichever is earlier. Upon The Termination Fee required to be paid pursuant to subsection (b)(iii) or (b)(iv) above shall be payable by the Company to Nortel Networks not later than two Business Days after the termination referred to therein. Notwithstanding the foregoing, (i) in no event shall more than one Termination Fee be payable, and (ii) Nortel Networks may elect, by notice to the Company, to defer the payment of the Termination Fee and from time to time for a period or periods of up to an aggregate of twelve months after the Expenses, the Company shall have no further liabilities or obligations date such fee would otherwise be payable. All payments under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company 8.02 shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required by wire transfer of immediately available funds to be made through the date of paymentan account designated by Nortel Networks.
Appears in 2 contracts
Sources: Merger Agreement (Alteon Websystems Inc), Merger Agreement (Nortel Networks Corp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement in accordance with its terms and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability Liability to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates or Financing Sources); provided, however, thatand notwithstanding anything to the contrary set forth in this Agreement, except as otherwise provided herein, that in the event of termination of this Agreement in accordance with its terms (i) no such termination shall relieve any party hereto of any liability or damages resulting the Company from any Liability to pay the Company Termination Fee pursuant to this Section 9.5 if and when due in accordance with the provisions hereof, (ii) no such termination shall relieve Parent from any Liability to pay the Reverse Termination Fee pursuant to this Section 9.5 if and when due in accordance with the provisions hereof, (iii) neither the Company nor Parent shall be relieved or released from Liability for willful and material breach of this Agreement or intentional for fraud, (iv) the provisions set forth in this Section 9.5 and the second sentence of Section 10.1 shall operate in accordance with their terms and (v) no such termination shall release the Financing Sources from any Liability to Parent and its Subsidiaries, or the Parent and its Subsidiaries from any Liability to the Financing Sources, in each case, under or arising out of the Credit Agreement or any related or replacement agreement (excluding this Agreement) or any other agreement entered into with Parent or its Subsidiaries, on the one hand, and any of the Financing Sources, on the other hand. For the avoidance of doubt, any failure by Parent and Merger Sub to consummate the transactions contemplated by this Agreement on the date the Closing should have occurred pursuant to Section 1.2 because the Financing has not been obtained when (x) all of the conditions to Closing set forth in Article VIII (other than those conditions that by their nature are to be satisfied by actions to be taken at the Closing, but subject to the fulfillment or waiver (to the extent permitted by applicable Law) of those conditions) shall be satisfied or waived in accordance with this Agreement on or prior to such date and (y) the Company has not willfully and materially breached Section 7.13 of this Agreement with respect to the Financing in a manner that materially contributed to such failure to obtain the Financing, shall be deemed to be a “willful and material” breach of this Agreement by Parent for purposes of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal that:
(but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal"A) shall have been publicly made orthis Agreement is terminated pursuant to Section 9.2(a) (relating to the Termination Date) before obtaining the Requisite Company Vote or this Agreement is terminated pursuant to Section 9.2(b) (relating to failure to obtain the Requisite Company Vote at the Company Stockholders Meeting), after the date hereof, (B) any Person shall have made or renewed a bona fide Acquisition Proposal after the date hereof that is publicly disclosed or publicly announced by such Person and shall not have been irrevocably publicly withdrawn (x) with respect to a termination pursuant to Section 9.2(a), prior to such termination or (y) with respect to a termination pursuant to Section 9.2(b), prior to a date that is at least five (5) business days prior to the Company Stockholders Meeting (in either case, a “Qualifying Proposal”), and (C) within nine (9) months of such termination the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or an intention Acquisition Proposal is consummated (in each case whether or not conditionalsuch Acquisition Proposal is the same as the original Qualifying Proposal referred to in clause (B)); provided, that for purposes of this Section 9.5(b), the term “Acquisition Proposal” shall have the meaning ascribed to such term in Section 7.2(c), except that all references to 20% therein shall be deemed to be references to 50%;
(ii) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or Parent pursuant to Section 9.4(a) (relating to a Company Change of Recommendation and similar events); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars9.3(a) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(brelating to an Alternative Acquisition Agreement). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.;
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Sigma Aldrich Corp)
Effect of Termination and Abandonment. (a) In the event of a ------------------------------------- termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIV, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 4.5(b) and Section 5.2 below and except that nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In If (i) the event that after Offer shall have remained open for a minimum of at least 20 business days, (ii) the date hereofTender Offer Condition shall not have been satisfied and the Offer is terminated without the purchase of any Shares thereunder, an Acquisition Proposal and (but substituting 40% for iii)(x) at the 15% threshold set forth time the Offer is terminated, any corporation, partnership, person, other entity or group (as defined in Section 13(d)(3) of the definition thereofExchange Act) other than Purchaser or any of its subsidiaries or affiliates (collectively, a "Covered ProposalPerson") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered proposal or offer relating to an Acquisition Proposal and thereafter (y) within fifteen (15) months after the date of such termination, the Company shall consummate or enter into an agreement with respect to any Acquisition Proposal (it being understood that in the event the Board of Directors of the Company recommends the acceptance by the shareholders of the Company of a third-party tender offer or exchange offer, such recommendation shall be treated as though an agreement had been entered into), then the Company shall at the time such Acquisition Proposal is consummated, entered into or recommended (as applicable), (I) pay Purchaser a fee of $44,750,000 (the "Termination Fee") and (II) reimburse Purchaser's actual out-of-pocket costs and --------------- expenses incurred in connection with this Agreement and the transactions contemplated hereby up to a maximum of two million five hundred thousand dollars ($2,500,000) (it being understood that if ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any of its affiliates is entitled to receive a portion of the Termination Fee pursuant to the terms of its engagement with Purchaser, such fee to be paid to ▇▇▇▇▇▇▇, Sachs & Co. or its affiliates shall not be deemed part of Purchaser's costs and expenses), which amounts shall be payable in same day funds. In addition, if (A) the Purchaser shall have terminated by either Cingular or the Company this Agreement pursuant to Section 8.2(b4.3(x) or by Cingular (y), or (B) the Company shall have terminated the Agreement pursuant to Section 8.4(a4.4(y) or Section 8.4(c)hereof, (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, (I) pay to Cingular on behalf of it, SBC Purchaser the Termination Fee and BellSouth and their respective Affiliates incurring charges (II) reimburse Purchaser's actual out-of-pocket costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of two million five hundred thousand dollars ($40,000,000 2,500,000) (the "Expenses") payable by wire transfer of same day funds and (ii) ifit being understood that if ▇▇▇▇▇▇▇, within 15 months after such termination (I) any Person (other than Cingular ▇▇▇▇▇ & Co. or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect affiliates is entitled to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment receive a portion of the Termination Fee pursuant to the terms of its engagement with Purchaser, such fee to be paid to ▇▇▇▇▇▇▇, Sachs & Co. or its affiliates shall not be deemed part of Purchaser's costs and the Expensesexpenses), the Company which amounts shall have no further liabilities or obligations under this Section 8.5(b)be payable in same day funds. The Company acknowledges that the agreements contained in this Section 8.5(b4.5(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Purchaser would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b4.5(b), and, in order to obtain such payment, Cingular Purchaser commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Purchaser its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, Citibank N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Tender Offer Agreement (Koninklijke Philips Electronics Nv), Tender Offer Agreement (Medquist Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(ba) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated (i) by either Cingular or the Company pursuant to Section 8.2(b8.3(a) or (ii) by Cingular Parent pursuant to Section 8.4(a) or (b) or (iii) by either party pursuant to Section 8.4(c8.2(ii) if, in the case of this clause (iii), (ithe Voting Agreement executed and delivered by CPI has not been terminated pursuant to Section 8(b)(i)(z) thereof at the time of such vote, then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf Parent a termination fee of it$15 million and shall promptly, SBC but in no event later than two days after being notified of such by Parent, pay all of the reasonable and BellSouth and their respective Affiliates incurring customary charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Company Merger Sub or CPI Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination5 million, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") each case payable by wire transfer of same day funds. Upon Notwithstanding the payment foregoing, in the event that this Agreement is terminated by either party pursuant to Section 8.2(ii) and if the Voting Agreement executed and delivered by CPI has been terminated pursuant to Section 8(b)(i)(z) thereof at the time of the Termination Fee and the Expensessuch vote, the Company shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the reasonable and customary charges and expenses incurred by Parent or Company Merger Sub or CPI Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $5 million, payable by wire transfer of same day funds. Notwithstanding any other provision of this Agreement, in the event that either (i) the Asset Purchase Agreement is terminated pursuant to Section 11.3(b) thereof or Section 11.4(a) or (b) thereof, or (ii) this Agreement is terminated pursuant to Section 8.4(d)(ii) as a result of the termination of the Asset Purchase Agreement pursuant to Section 11.3(a) of the Asset Purchase Agreement, or (iii) Parent, Company Merger Sub, ABC Merger Sub and their respective debt and equity financing sources have executed and delivered to the Company the Closing Agreement stating that all conditions to the Closing (other than the execution and delivery of the Closing Agreement by the other parties thereto) have been or will be satisfied or waived by Parent (other than Section 7.1(e), which cannot be waived for this purpose) and this Agreement is thereafter terminated pursuant to Section 8.3(c) or 8.4(d), then, in either such case, the Company shall promptly, but in no further liabilities event later than two days after the date of such termination, pay all of the charges and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby up to a maximum amount of $2,500,000, payable by wire transfer of same day funds. The Company's payment shall be the sole and exclusive remedy of Parent, Company Merger Sub or obligations under CPI Merger Sub against the Company, CPI and any of their Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives with respect to the breach of any covenant or agreement set forth in this Agreement if the Agreement is terminated by Parent pursuant to Section 8.4(b). In the event that the Company shall reimburse Parent's expenses pursuant to any of Section 6.11(b), the first sentence of this Section 8.5(b8.5(a), the second sentence of this Section 8.5(a) or the third sentence of this Section 8.5(a) (any of such four provisions, a "Specified Provision"), payments made in respect of the reimbursement of expenses pursuant to any Specified Provision will be credited against any payment required to be made pursuant to any other Specified Provision. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent, CPI Merger Sub and Company Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent, CPI Merger Sub or Company Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Parent, CPI Merger Sub or Company Merger Sub its reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime lending rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (MCC Acquisition Holdings Corp), Agreement and Plan of Merger (Carter Wallace Inc /De/)
Effect of Termination and Abandonment. (a) In Except as provided in this Section 7.02, in the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement (other than as set forth in Section 9.1) shall forthwith become void and of no effect with and there shall be no liability or obligation on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates), officersexcept as provided in the provisions of Section 5.03(b) (Confidentiality), employeesSection 5.07 (Expenses), agentsthis Section 7.02 and Article VIII (Miscellaneous), legal and financial advisors or other representatives)which provisions shall survive such termination; provided, however, that, except as otherwise provided herein, that (i) no such termination shall relieve any party hereto of any liability for fraud or damages resulting any Willful Breach of its representations, warranties, covenants or agreements set forth in this Agreement prior to such termination, and the aggrieved party will be entitled to all rights and remedies available at law or in equity; and (ii) if a Termination Payment or Expense payment (or both) is required to be paid pursuant to this Section 7.02, Parent’s right to the Termination Payment or Expense payment (or both) from the Company pursuant to this Section 7.02 and any willful additional amounts pursuant to Section 7.02(d) shall be the sole and exclusive remedies of Parent, US Parent, Merger Sub and their respective Affiliates against the Company, its Subsidiaries and any of their respective former, current, or intentional future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger or the other transactions contemplated by this Agreement to be consummated, and upon payment of such amount, none of the Company, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Merger or the other transactions contemplated by this Agreement, except that nothing in this clause (ii) shall relieve any of the aforementioned Persons of any liability for fraud or any Willful Breach of the representations, warranties, covenants or agreements set forth in this Agreement prior to such termination, and the aggrieved party will be entitled to all rights and remedies available at law or in equity.
(b) In the event that after the date hereof, an Acquisition Proposal that:
(but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular the Company pursuant to Section 7.01(c)(i);
(ii) (A) this Agreement is terminated (x) by Parent or the Company pursuant to Section 8.2(b7.01(b)(i) or Section 7.01(b)(ii) or (y) by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c7.01(d)(ii), (iB) then prior to the termination pursuant to Section 7.01(b)(i), the Stockholders Meeting or the breach or failure to perform giving rise to Parent’s right to terminate under Section 7.01(d)(ii), as the case may be, an Acquisition Proposal shall have been made to the Company shall promptly, but in no event later than two business days after or board of directors of the date Company or publicly announced or disclosed and not have been withdrawn and (C) within twelve (12) months of such termination, the Company enters into a definitive agreement with respect to an Acquisition Proposal or an Acquisition Proposal is consummated; or
(iii) this Agreement is terminated by Parent pursuant to Section 7.01(d)(i); then, in each case, the Company shall pay Parent, as consideration for the disposition of rights acquired under this Agreement, an aggregate amount equal to Cingular $309 million (the “Termination Payment”) by wire transfer of immediately available funds (1) in the case of a payment required by Section 7.02(b)(i), on the date of termination of this Agreement, (2) in the case of a payment required by Section 7.02(b)(ii), on the earlier of the date of the definitive agreement or the date of consummation referred to in Section 7.02(b)(ii)(C) (or, if later, the date of the termination of this Agreement) and (3) in the case of a payment required by Section 7.02(b)(iii), within five (5) Business Days of the date of termination of this Agreement; provided, however, that the Termination Payment shall be reduced by the amount of any Expenses the Company has paid to Parent pursuant to Section 7.02(c) prior to the date on which the Termination Payment is required to be paid pursuant to this Section 7.02(b). The parties hereto acknowledge and agree that in no event shall the Company be required to pay the Termination Payment on more than one occasion. For purposes of Section 7.02(b)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 4.02(b)(i), except that all references to fifteen percent (15%) therein shall be deemed to be references to fifty percent (50%).
(c) In the event that:
(i) this Agreement is terminated by Parent or the Company pursuant to Section 7.01(b)(ii); or
(ii) (A) this Agreement is terminated (x) by Parent or the Company pursuant to Section 7.01(b)(i) or (y) by Parent pursuant to Section 7.01(d)(ii), and (B) prior to the termination pursuant to Section 7.01(b)(i) or the breach or failure to perform giving rise to Parent’s right to terminate under Section 7.01(d)(ii), as the case may be, an Acquisition Proposal shall have been made to the Company or board of directors of the Company or publicly announced or disclosed and not have been withdrawn; then, in each case, the Company shall pay Parent an aggregate amount equal to the amount of all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its Affiliates) incurred by Parent and its Affiliates or on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Parent or their respective its Affiliates in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement Agreement, the filing of any required notices under the HSR Act or other similar regulations and all other matters related to the Merger and the other transactions contemplated by this Agreement up Agreement, in an amount not to a maximum amount of exceed $40,000,000 40 million (the "“Expenses") payable ”), by wire transfer of same day immediately available funds and within five (ii5) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more Business Days of the voting power date of the outstanding securities termination of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person this Agreement. The parties hereto acknowledge and agree that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later shall the Company be required to pay the Expenses on more than two business days after one occasion. For purposes of Section 7.02(c)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such eventterm in Section 4.02(b)(i), pay SBC and BellSouth in proportion except that all references to their Specified Interests an aggregate termination fee of $1,400,000,000 fifteen percent (One Billion Four Hundred Million Dollars15%) therein shall be deemed to be references to fifty percent (the "Termination Fee"50%).
(d) payable by wire transfer of same day funds. Upon the payment Each of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company parties hereto acknowledges that the agreements contained in this Section 8.5(b) 7.02 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, Cingular the parties hereto would not enter into this Agreement; accordingly, if . In the Company fails event that any payment required to promptly pay the amount due be made pursuant to this Section 8.5(b)7.02 is not paid by the date so required, and, in order such amount payable shall bear interest from the date such payment was required to obtain such payment, Cingular commences a suit that results in a judgment against be made until the Company for the fee set forth in this Section 8.5(b) or any portion date of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee payment at the prime rate of Citibank, N.A. as published in The Wall Street Journal in effect on the date such payment was required to be made from the date such made. If, in order to obtain any payment was required to be made through pursuant to this Section 7.02, Parent commences a suit, action or proceeding that results in judgment for Parent for such amount, the date Company shall pay to Parent all reasonable out-of-pocket costs and expenses of paymentParent (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, action or proceeding.
Appears in 2 contracts
Sources: Merger Agreement (Transcanada Corp), Merger Agreement (Columbia Pipeline Group, Inc.)
Effect of Termination and Abandonment. (a) In the event of a the ------------------------------------- termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directorsdirectors or officers) shall have any liability or further obligation to any other party to this Agreement, officers, employees, agents, legal except as provided in Section 9.5(b) below and financial advisors or other representatives)Section 10.2 and except that nothing herein will relieve any party from liability for any willful breach of this Agreement; provided, however, thatthat if -------- ------- this Agreement is terminated by Purchaser pursuant to Section 9.3(i) or the Company pursuant to Section 9.4(i), except as otherwise provided herein, no the terminating party's rights to pursue all legal remedies will survive such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreementunimpaired.
(b) In If (i) (x) the event that Offer shall have remained open for a minimum of at least 20 business days, (y) after the date hereofhereof any corporation, an Acquisition Proposal partnership, person, other entity or group (but substituting 40% for as defined in Section 13(d)(3) of the 15% threshold set forth in the definition thereofExchange Act) other than Purchaser or Merger Sub or any of their respective subsidiaries or affiliates (collectively, a "Covered ProposalPerson") shall have been become the beneficial owner ------ of 20% or more of the outstanding Shares or shall have publicly made or, after the date hereof, announced a proposal or intention to make an Acquisition Proposal or any Person shall have commenced, or shall have publicly announced an intention to commence, a tender offer or exchange offer for 20% or more of the outstanding Shares, and (whether z) the Minimum Condition (as defined in Annex A) shall not have been satisfied and the Offer is terminated without the purchase of any Shares thereunder, or not conditional(ii) to make a Covered Proposal and thereafter Purchaser shall have terminated this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b9.3(ii) or by Cingular Section 9.3(iii) or (iii) the Company shall have terminated this Agreement pursuant to Section 8.4(a) or Section 8.4(c9.4(ii), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf Purchaser a fee of it, SBC $8,000,000 and BellSouth shall reimburse Purchaser and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby Merger Sub (not later than one business day after request by Purchaser or Merger Sub) for all of the out-of- pocket charges and expenses actually expenses, including financing fees, incurred by Cingular, SBC, BellSouth Purchaser or their respective Affiliates Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") 1,500,000, in each case payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Purchaser and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular Purchaser or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Purchaser or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect Bank of America National Trust and Savings Association on the date such payment was required to be made. The payments made by the Company pursuant to this Section 9.5(b) are the sole and exclusive remedy of Purchaser and Merger Sub for any claim that Purchaser or Merger Sub may have arising from or relating to the date such payment was required to be made through the date of paymentevents set forth in Section 9.5(b)(i), (ii) or (iii).
Appears in 2 contracts
Sources: Merger Agreement (Green a P Industries Inc), Merger Agreement (Global Industrial Technologies Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any liability or further obligation to any other party hereunder except (other than i) as set forth in this Section 9.18.02 and Section 9.01 and (ii) shall become void and of no effect with no that termination will not relieve a breaching party from liability on the part for any willful breach of any party hereto (covenant, agreement, representation or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach warranty of this AgreementAgreement giving rise to such termination.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the The Company shall promptly, but in no event later than two business days after pay Parent the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount sum of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) 7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent or the Company pursuant to Section 8.01(e) and in the case of any termination pursuant to clause (A) or (B) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of clause (B), or the date of termination, in the case of clause (A), then (x) the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following such termination, and (y) if within 18 months after such termination the Company or a Subsidiary of the Company enters into an agreement with respect to, or consummates, an Acquisition Proposal, then the Company shall pay to Parent the Termination Fee (net of any payment made pursuant to clause (x) above) on the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of same day funds. Upon immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the payment agreement contained in paragraph (b) of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are 8.02 is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreement Parent would not enter have entered into this Agreement; accordingly, if Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay Parent the amount amounts due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against under paragraph (b) above within the Company for the fee set forth in this Section 8.5(b) or any portion of such feetime periods specified therein, the Company shall pay to Cingular its the costs and expenses (including attorneys' feesreasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibankprevailing during such period as published in The Wall Street Journal, N.A. in effect calculated on the date such payment was required to be made a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 2 contracts
Sources: Merger Agreement (Bancorp Connecticut Inc), Merger Agreement (Banknorth Group Inc/Me)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of from any liability or for damages resulting from any willful or and intentional breach of this AgreementAgreement (to the extent any such damages exceed any Termination Fee that may have been paid pursuant to Section 8.5(b) or 8.5(c)) or from any obligation to pay, if applicable, the Termination Fee pursuant to Section 8.5(b) or 8.5(c).
(b) In the event that after the date hereof, an (i) a bona fide Company Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company and made known to stockholders generally or have been made directly to stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Company Acquisition Proposal and such Company Acquisition Proposal or announced intention shall not have been withdrawn prior to the Company's Stockholders Meeting and thereafter this Agreement is terminated by either Cingular SBC or the Company pursuant to Section 8.2(b8.2(ii) and within nine months after such termination the Company shall have entered into an agreement to consummate a transaction that would constitute a Company Acquisition Proposal if it were the subject of a proposal, or (ii) this Agreement is terminated (x) by Cingular the Company pursuant to Section 8.4(a8.3(a) or (y) by SBC pursuant to Section 8.4(c8.4(b)(i), (ib)(ii) (solely with respect to a willful and intentional breach) or (b)(iii), then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) toexcept as otherwise provided in Section 8.3(a)), directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationor, in one transaction or any related series the case of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect termination pursuant to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 8.2(ii), then the Company shall, promptly following such event, but in no event later than two business days after such eventthe relevant agreement is entered into, pay SBC and BellSouth in proportion a fee equal to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) 1.2 billion (the "Termination Fee") ), which amount shall be exclusive of any expenses to be paid pursuant to Section 6.11, payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular SBC and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to pay promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular SBC or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular SBC or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, Citibank N.A. in effect on the date such payment was required to be made.
(c) In the event that (i) a bona fide SBC Acquisition Proposal shall have been made from to SBC and made known to stockholders generally or shall have been made directly to stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a bona fide SBC Acquisition Proposal and such SBC Acquisition Proposal or announced intention shall not have been withdrawn prior to the SBC Stockholder Meeting and thereafter this Agreement is terminated by the Company or SBC pursuant to Section 8.2(iii) and within nine months after such termination SBC shall have entered into an agreement to consummate a transaction that would constitute a SBC Acquisition Proposal if it were the subject of a proposal, or (ii) this Agreement is terminated (x) by SBC pursuant to Section 8.4(a) or (y) by the Company pursuant to Section 8.3(b)(i), (b)(ii) (solely with respect to a willful and intentional breach) or (b)(iii), then SBC shall promptly, but in no event later than two days after the date of such termination (except as otherwise provided in Section 8.4(a)), or, in the case of a termination pursuant to Section 8.2(iii), two (2) days after the relevant agreement is entered into, pay the Company a fee equal to the Termination Fee, which amount shall be exclusive of any expenses to be paid pursuant to Section 6.11, payable by wire transfer of same day funds. SBC acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if SBC fails to pay promptly the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against SBC for the fee set forth in this paragraph (c), SBC shall pay to the Company its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Ameritech Corp /De/), Merger Agreement (SBC Communications Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Merger Agreement and the abandonment of the Merger pursuant to this Article VIII, this Merger Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Merger Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Merger Agreement is terminated by either Cingular or the Company Purchaser pursuant to Section 8.2(b8.4 (a) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Purchaser a maximum amount termination fee of $40,000,000 2,500,000 (the "ExpensesTermination Fee") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such eventshall promptly, but in no event later than two business days after being notified of such eventby Purchaser, pay SBC all of the out-of-pocket charges and BellSouth expenses (but excluding any investment banking fees), including those of the Disbursing Agent, incurred by Purchaser or Merger Sub in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (connection with this Merger Agreement and the "Termination Fee") transactions contemplated by this Merger Agreement, in each case payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Merger Agreement, and that, without these agreements, Cingular Purchaser and Merger Sub would not enter into this Merger Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Purchaser or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Purchaser or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. JPMorgan Chase Bank in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Bionx Implants Inc), Merger Agreement (Conmed Corp)
Effect of Termination and Abandonment. (a) In the event of a the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIISection 8.1, this Agreement (other than as set forth in Agreement, except for the provisions of this Section 9.1) 8.2 and Section 9.14, shall become void and of have no effect with no effect, without any liability on the part of any party hereto (to this Agreement or of any of its their respective directors, officers, employeesor shareholders or Company Shareholders, agentsas the case may be. Notwithstanding the foregoing, legal and financial advisors or other representatives)nothing in this Section 8.2 shall relieve any party to this Agreement of liability for willful breach; provided, however, that, except as otherwise provided herein, no such if it shall be judicially determined that termination shall relieve any party hereto of any liability or damages resulting from any this Agreement was caused by a willful or intentional breach of this Agreement, then, in addition to other remedies at law or equity for breach of this Agreement, the party to this Agreement found to have intentionally breached this Agreement shall indemnify and hold harmless the other parties to this Agreement for their respective out-of-pocket costs, fees and expenses of their counsel, accountants, financial advisors and other experts and advisors as well as fees and expenses incident to negotiation, preparation and execution of this Agreement and related documentation and Company Shareholders’ meetings and consents.
(b) In the event that after the date hereof, an Acquisition Proposal If:
(but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal") Buyer shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter terminate this Agreement is terminated by pursuant to Section 8.1(f);
(ii) either Cingular Buyer or the Company shall terminate this Agreement pursuant to Section 8.2(b8.1(c) or by Cingular Buyer shall terminate this Agreement pursuant to Section 8.4(a8.1(e); or
(iii) or the Company shall terminate this Agreement pursuant to Section 8.4(c8.1(g); then, (x) in the case of a termination under clause (i) then above, the Company shall promptly, but in no event later than two business days after reimburse Buyer and Merger Sub for up to Seven Million Five Hundred Thousand Dollars ($7,500,000) of the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges fees and expenses (including Attorneys’ fees) incurred by them in connection with this Agreement herewith and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses"“Buyer Expense Reimbursement”), which reimbursement shall be made in cash not later than the close of business on the Business Day following such termination; (y) payable by wire transfer in the case of same day funds and a termination under clause (i) or (ii) ifabove, within 15 months if after the date hereof and prior to such termination (I) any Person (other than Cingular Buyer, Merger Sub or any of its their respective controlled Affiliates) has entered shall have made a bona fide Acquisition Proposal that is received, or otherwise acted on, by the Board and within twelve (12) months after the termination of this Agreement, the Company enters into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and an Acquisition Proposal with any Person (other than Cingular Buyer, Merger Sub or any their respective controlled Affiliates) or an Acquisition Proposal is consummated (it being understood that in the event that the Board recommends the acceptance by the Company Shareholders of its Affiliatesa tender offer or exchange offer with respect to an Acquisition Proposal, such recommendation shall be treated as though an agreement with respect to an Acquisition Proposal had been entered into on such date), then the Company shallshall pay in cash to Buyer, promptly following such event, but in no event not later than two business days after the date such eventagreement is entered into (or, pay SBC if no agreement is entered into, the date such transaction is consummated), Fifty Five Million Two Hundred and BellSouth in proportion to their Specified Interests an aggregate termination fee of Twenty Six Thousand Dollars ($1,400,000,000 (One Billion Four Hundred Million Dollars55,226,000) (the "“Buyer Termination Fee"”), less, to the extent previously paid, the Buyer Expense Reimbursement; and (z) payable in the case of a termination under clause (iii) above, Buyer shall pay in cash to the Company, not later than the close of business on the Business Day following such termination, One Hundred Twenty Five Million Dollars ($125,000,000) (the “Company Termination Fee”). All payments and reimbursements made under this Section 8.2 shall be made by wire transfer of same day funds. Upon immediately available funds to an account specified by party entitled to such payment or reimbursement.
(c) Each of Buyer and the payment Company acknowledges and agrees that in the event Buyer or the Company, as the case may be, is entitled to receive the Buyer Termination Fee or the Company Termination Fee, respectively, the right of Buyer or the Company, as applicable, to receive such amount shall constitute such party’s sole and exclusive remedy for, and such amount shall constitute liquidated damages in respect of, any termination of this Agreement regardless of the Termination Fee and circumstances giving rise to such termination.
(d) In the Expensesevent of any termination of this Agreement as provided in this Article VIII, the Company Receiving Party shall have no further liabilities return all documents and other materials received from the Disclosing Party relating to this Agreement or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated hereby, whether so obtained before or after the execution hereof, to that the Disclosing Party, and all Evaluation Materials (as such term is used in the Non-Disclosure Agreement) received by the Receiving Party or its Representatives shall be dealt with in accordance with the Non-Disclosure Agreement, which shall remain in full force and effect notwithstanding the termination of this Agreement. For purposes of this Agreement, the terms “Receiving Party,” “Disclosing Party” and that, without these agreements, Cingular would not enter into this “Representatives” shall have the respective meaning ascribed thereto in the Non-Disclosure Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 2 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional grossly negligent breach of this Agreement.
(b) In the event that after the date hereof, an (i) a Company Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Company Acquisition Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b8.2(ii) or (ii) this Agreement is terminated (x) by Cingular the Company pursuant to Section 8.3(a) or (y) by Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date Parent makes a written request for payment, pay Parent a termination fee of $70,000,000 and shall promptly, but in no event later than two days after being notified of such terminationby Parent, pay to Cingular on behalf Parent an amount equal to all of it, SBC and BellSouth and their respective Affiliates incurring the charges and expenses incurred by Parent or Merger Subsidiary in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Stock Option Agreement and the transactions contemplated by this Agreement and the Stock Option Agreement up to a maximum amount of $40,000,000 (the "Expenses") 5,000,000, in each case payable by wire transfer of same day funds and funds.
(iic) ifIn the event that (i) a proposal or offer with respect to a merger, within 15 months after such termination (I) reorganization, share exchange, consolidation or similar transaction involving, or any Person (other than Cingular purchase of all or a substantial portion of the assets or equity securities of, Parent or any of its AffiliatesSubsidiaries (a "Parent Acquisition Proposal") has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction shall have been made to Parent or any related series of transactions, 40% its Subsidiaries or more of the voting power of the outstanding securities of the Company, any Person shall have publicly announced an intention (whether or ownership or control of 40% or more of the consolidated assets of the Company or (Ynot conditional) to make a Parent Acquisition Proposal with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination Parent or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(iii) or (other than Cingular ii) Parent has withdrawn or any of modified in a manner adverse to the Company its Affiliatesrecommendation contemplated by Section 6.4 and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(iii), then the Company shall, promptly following such eventParent shall promptly, but in no event later than two business days after such eventthe date the Company makes a written request for payment, pay SBC and BellSouth in proportion to their Specified Interests an aggregate the Company a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (70,000,000 and shall promptly, but in no event later than two days after being notified of such by the "Termination Fee") Company, pay to the Company an amount equal to all of the charges and expenses incurred by the Company in connection with this Agreement and the Stock Option Agreement and the transactions contemplated by this Agreement and the Stock Option Agreement up to a maximum amount of $5,000,000, in each case payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). .
(d) The Company acknowledges and Parent each acknowledge that the agreements contained in this Section Sections 8.5(b) and (c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the Company, Parent and Merger Subsidiary would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), or Parent fails to promptly pay the amount due pursuant to Section 8.5(c), and, in order to obtain such payment, Cingular Parent or the Company, as the case may be, commences a suit that which results in a judgment against Parent or the Company Company, as the case may be, for the fee set forth in this Section 8.5(b) or any portion of such fee8.5, the Company shall pay to Cingular Parent or Parent shall pay to the Company, as the case may be, its costs and expenses (including attorneys' fees) in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the fee amounts owed at the prime rate of Citibank, N.A. Chemical Bank in effect on the date from time to time during such payment was required to be made from the date such payment was required to be made through the date of paymentperiod plus two percent.
Appears in 2 contracts
Sources: Merger Agreement (St Paul Companies Inc /Mn/), Merger Agreement (St Paul Companies Inc /Mn/)
Effect of Termination and Abandonment. (a) In the event of a the termination of this Agreement Plan and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement Plan (other than as set forth in Section 9.15.5(b), this Section 7.4 and Article VIII) shall will become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, that no such termination shall will relieve any party hereto of any liability or damages resulting from any willful or intentional and material breach of this AgreementPlan; provided that in no event shall any party hereto be liable for any punitive damages. For purposes of this Plan, “willful and material breach” shall mean a material breach that is a consequence of an act undertaken by the breaching party with the knowledge (actual or constructive) that the taking of such act would, or would be reasonably expected to, cause a breach of this Plan.
(b) In The Company will pay Parent (as consideration for termination of Parent’s rights under this Plan), by wire transfer of immediately available funds, the event that after sum of $2,400,000 (the date hereof, an Acquisition Proposal “Termination Payment”) if this Plan is terminated as follows:
(but substituting 40% for the 15% threshold set forth in the definition thereof1) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter if this Agreement Plan is terminated by either Cingular Parent pursuant to Section 7.2(c) or (e), then the Company shall pay to Parent the entire Termination Payment on the second business day following such termination; and
(2) if this Plan is terminated (A) by Parent pursuant to Section 7.2 (a), (B) by Parent pursuant to Section 7.2(d) or the Company pursuant to Section 8.2(b7.3(c) or (C) by Cingular Parent pursuant to Section 8.4(a7.2(b) or the Company pursuant to Section 8.4(c)7.3(b) without a vote of the shareholders of the Company contemplated by this Plan at the Company Meeting having occurred, (i) then and in any such case an Acquisition Proposal with respect to the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth have been publicly announced or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular otherwise communicated or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior made known to the consummation senior management or board of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities directors of the Company (or any person shall have publicly announced, communicated or made publicly known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of another Person that directly this Plan and on or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation date of such transactionthe Company Meeting, in the case of clause (B), or the date of termination, in the case of clauses (IIA) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesC), then the Company shall, promptly following such event, but in no event later than two business days after such event, shall pay SBC and BellSouth in proportion to their Specified Interests Parent (x) an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment amount equal to 20% of the Termination Fee Payment on the second business day following such termination, and (y) if within 18 months after such termination the ExpensesCompany or any of its subsidiaries enters into a definitive agreement with respect to, or consummates a transaction contemplated by, any Acquisition Proposal, then the Company shall have no further liabilities pay the remainder of the Termination Payment on the date of such execution or obligations under consummation, provided, however, that for the purpose of this Section 8.5(bclause (y). , all references in the definition of Acquisition Proposal to “20% or more” shall instead refer to “40% or more”.
(c) The Company acknowledges and Parent agree that the agreements contained in this Section 8.5(b7.4(b) are an integral part parts of the transactions contemplated by this AgreementPlan, and that, without these agreements, Cingular would that such amounts do not enter into this Agreement; accordingly, if constitute a penalty. If the Company fails to promptly pay Parent the amount amounts due pursuant to this under such Section 8.5(b), and, 7.4(b) within the time periods specified in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feesection, the Company shall pay to Cingular its the costs and expenses (including attorneys' feesreasonable legal fees and expenses) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate prevailing during such period as published in the New York City edition of CitibankThe Wall Street Journal, N.A. in effect calculated on the date such payment was required to be made a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 2 contracts
Sources: Merger Agreement (People's United Financial, Inc.), Merger Agreement (Smithtown Bancorp Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement and the Arrangement pursuant to this Article VIIIV, this Agreement (other than as set forth in Section 9.16.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that If after the date hereof, an hereof a bona fide Acquisition Proposal (but substituting 40% for with respect to the 15% threshold set forth in the definition thereof) (a "Covered Proposal") Company shall have been publicly made or, after the date hereof, announced or any Person shall have publicly announced an intention (whether that, subject to the Company’s shareholders, optionholders and unitholders not approving the Arrangement or not conditional) to otherwise rejecting it, it will make a Covered bona fide Acquisition Proposal with respect to the Company and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c5.2(b), (i) then the Company shall promptlyshall, but in no event later than two business days after upon the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates Parent in connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $40,000,000 (12 million and pay Parent a cash fee of $60 million, and if concurrently with such termination or within twelve months after such termination the "Expenses") payable Company shall agree to an Acquisition Proposal or an Acquisition Proposal with respect to the Company shall be consummated, the Company shall, upon the earlier of agreeing to an Acquisition Proposal or consummating an Acquisition Proposal, pay Parent a cash fee of $25 million. All payments shall be made by wire transfer of same day funds funds.
(c) If after the date hereof a bona fide Acquisition Proposal with respect to Parent shall have been publicly announced or any Person shall have publicly announced that, subject to Parent’s stockholders not approving either or both of the Parent Proposals or otherwise rejecting either or both of the Parent Proposals, it will make a bona fide Acquisition Proposal with respect to Parent and (ii) ifthereafter this Agreement is terminated by either Parent or the Company pursuant to Section 5.2(c), then Parent shall, upon the date of such termination, pay all of the charges and expenses incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and pay the Company a cash fee of $60 million, and if concurrently with such termination or within 15 twelve months after such termination (I) any Person (other than Cingular Parent shall agree to an Acquisition Proposal or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) Acquisition Proposal with respect to any transaction the Parent shall be consummated, Parent shall, upon the earlier of agreeing to an Acquisition Proposal or series of related transactions after which stockholders of consummating an Acquisition Proposal, pay the Company immediately prior a cash fee of $25 million. All payments shall be made by wire transfer of same day funds.
(d) If after the date hereof a bona fide Acquisition Proposal with respect to the consummation of such transaction Company shall have been publicly announced or transactions would cease any Person shall have announced that, subject to own directly the Company’s shareholders, optionholders and unitholders not approving the Arrangement or indirectly at least 60% of the voting power of the outstanding securities of otherwise rejecting it, it will make a bona fide Acquisition Proposal with respect to the Company (and thereafter this Agreement is terminated by either Parent or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliatespursuant to Section 5.2(a), then the Company shall, promptly following upon the date of such eventtermination, but pay all of the charges and expenses incurred by Parent in no event later than two business days connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and if concurrently with such termination or within twelve months after such eventtermination the Company shall agree to an Acquisition Proposal or an Acquisition Proposal with respect to the Company shall be consummated, the Company shall, upon the earlier of agreeing to an Acquisition Proposal or consummating an Acquisition Proposal, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination Parent a cash fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable 85 million. All payments shall be made by wire transfer of same day funds. Upon .
(e) If after the payment date hereof a bona fide Acquisition Proposal with respect to Parent shall have been publicly announced or any Person shall have announced that, subject to Parent’s stockholders not approving either or both of the Termination Fee Parent Proposals or otherwise rejecting either or both of the Parent Proposals, it will make a bona fide Acquisition Proposal with respect to Parent and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 5.2(a), then Parent shall, upon the date of such termination, pay all of the charges and expenses incurred by the Company in connection with this Agreement and the Expensestransactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and if concurrently with such termination or within twelve months after such termination Parent shall agree to an Acquisition Proposal or an Acquisition Proposal with respect to Parent shall be consummated, Parent shall, upon the earlier of agreeing to an Acquisition Proposal or consummating an Acquisition Proposal, pay the Company a cash fee of $85 million. All payments shall be made by wire transfer of same day funds.
(f) If this Agreement is terminated by the Company pursuant to Section 5.3(a), then the Company shall, prior to such termination, pay all of the charges and expenses incurred by Parent in connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and pay Parent a cash fee of $85 million. All payments shall be made by wire transfer of same day funds.
(g) If this Agreement is terminated by Parent pursuant to Section 5.4(a), then Parent shall, prior to such termination, pay all of the charges and expenses incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and pay the Company a cash fee of $85 million. All payments shall be made by wire transfer of same day funds.
(i) If after the date hereof a bona fide Acquisition Proposal with respect to the Company shall have no further liabilities been publicly announced or obligations under any Person shall have publicly announced that, subject to the Company’s shareholders, optionholders and unitholders not approving the Arrangement or otherwise rejecting it, it will make a bona fide Acquisition Proposal with respect to the Company and thereafter this Agreement is terminated by Parent pursuant to Section 8.5(b5.4(b), or (ii) if this Agreement is terminated by Parent pursuant to Section 5.4(b), and a fee has not been paid in respect of clause (i) above, and concurrently with such termination or within twelve months after such termination the Company shall agree to an Acquisition Proposal or an Acquisition Proposal with respect to the Company shall be consummated, then the Company shall, in the case of clause (i) on the date of such termination and in the case of clause (ii) upon the earlier of agreeing to an Acquisition Proposal or consummating an Acquisition Proposal, pay all of the charges and expenses incurred by Parent in connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and pay Parent a cash fee of $85 million. The All payments shall be made by wire transfer of same day funds.
(i) (i) If after the date hereof a bona fide Acquisition Proposal with respect to Parent shall have been publicly announced or any Person shall have publicly announced that, subject to Parent’s stockholders not approving either or both of the Parent Proposals or otherwise rejecting either or both of the Parent Proposals, it will make a bona fide Acquisition Proposal with respect to Parent and thereafter this Agreement is terminated by the Company pursuant to Section 5.3(b), or (ii) if this Agreement is terminated by the Company pursuant to Section 5.3(b), and a fee has not been paid in respect of clause (i) above, and concurrently with such termination or within twelve months after such termination Parent shall agree to an Acquisition Proposal or an Acquisition Proposal with respect to Parent shall be consummated, then Parent shall, in the case of clause (i) on the date of such termination and in the case of clause (ii) upon the earlier of agreeing to an Acquisition Proposal or consummating an Acquisition Proposal, pay all of the charges and expenses incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement and the Arrangement up to a maximum amount of $12 million and pay the Company a cash fee of $85 million. All payments shall be made by wire transfer of same day funds.
(j) Each of the Company and Parent acknowledges that the agreements contained in this Section 8.5(bSections 5.5(b) through (i) are an integral part of the transactions contemplated by this AgreementAgreement and the Arrangement, and that, without these agreements, Cingular each of the parties hereto would not enter into this Agreement; accordingly, if the Company any party fails to promptly pay the amount due pursuant to this Section 8.5(bSections 5.5(b) through (i), and, in order to obtain such payment, Cingular the other party commences a suit that which results in a judgment against such party for any of the Company for the fee cash fees set forth in this Section 8.5(bSections 5.5(b) or any portion of through (i), such fee, the Company party shall pay to Cingular the other party its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Combination Agreement (Donnelley R R & Sons Co), Combination Agreement (Moore Wallace Inc)
Effect of Termination and Abandonment. (a) In The Company shall pay Parent a fee of $15 million (the event of a "Termination Fee"), which amount shall be payable prior to any termination of this Agreement and by the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth Company in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), case of clause (i) then the Company shall promptly, but in no event later than two business days after the date of below (with any such payment being a condition precedent to any such termination), pay and Parent's reasonable documented out-of-pocket expenses, not to Cingular on behalf of itexceed $1,000,000 in the aggregate, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Parent Expenses"), which amount shall be payable within two business days of receipt of an invoice therefor, if this Agreement (A) is terminated by Parent pursuant to Section 7.4(a) hereof, or by the Company pursuant to Section 7.3(a) hereof, or (B) is terminated as a result of the Company's breach of Section 5.1 hereof which is not cured within ten (10) days after notice thereof.
(b) In the event of termination of this Agreement by Parent pursuant to Section 7.4(b) or (c), the Company shall pay to Parent the Parent Expenses, which amount shall be payable by wire transfer within two business days of same day funds and receipt of an invoice therefor; provided however, that in the event that within twelve (ii12) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has this Agreement the Company shall have entered into an agreement (X) with respect to, directly or indirectlyconsummated, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or an Acquisition Proposal which shall have existed at any related series of transactions, 40% or more of time during the voting power of period between the outstanding securities of date hereof and the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation date of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transactiontermination, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expensesthen, the Company shall have no further liabilities or obligations under this Section 8.5(b). pay Parent the Termination Fee in addition to the Parent Expenses.
(c) The Company acknowledges that the agreements contained in this Section 8.5(b7.5(a) and (b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b7.5(a) or (b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeCompany, the Company shall pay to Cingular Parent its reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest on the amount of the fee Termination Fee and the Parent Expenses at the prime rate of Citibank, Chase Manhattan Bank N.A. in effect on the date such payment was amounts were required to be made paid. The payment of the Termination Fee and the Parent Expenses contemplated by Section 7.5(a), or the Parent Expenses and if applicable the Termination Fee contemplated by Section 7.5(b), as the case may be, shall terminate all obligations or liabilities of the Company under this Agreement, except as otherwise provided in Section 7.5(e) below.
(d) In the event of termination of this Agreement by the Company pursuant to Section 7.3(b) or (c), the Parent shall pay to the Company the Company's reasonable documented out-of-pocket expenses, not to exceed $1,000,000 in the aggregate, in connection with this Agreement and the transactions contemplated hereby, which amount shall be payable within two (2) business days of receipt of an invoice therefor.
(e) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article 7, all obligations of the parties hereto shall terminate, except the obligations of the parties set forth in this Section 7.5 and Section 5.10 and except for the Confidentiality Agreement, provided that nothing in this Section 7.5(e) shall relieve any party from liability for willful breach, including, without limitation, attorneys' fees and the date such payment was required right to be made through the date of paymentpursue any remedy at law or in equity.
Appears in 2 contracts
Sources: Merger Agreement (Cephalon Inc), Merger Agreement (Cephalon Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in this Section 9.19.5 and Section 10.1) shall will become void and of no effect with no liability on the part of any party hereto of Parent, Merger Sub, the Company and the Asset Purchaser (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativestheir respective Representatives); provided, however, that, except as otherwise provided herein, no that such termination shall will not relieve any party hereto of such Persons from any liability or for damages to any other party (and/or the stockholders of the Company pursuant to Section 10.8) resulting from any willful or intentional prior breach of this Agreement, the Asset Sale Agreement or the Partnership Interests Purchase Agreement which is (i) material and (ii) willful or knowing, or from any obligation to pay, if applicable, the fees in accordance with Section 9.5(b) or Section 9.5(c). Notwithstanding anything to the contrary in this Agreement or provided for under any applicable Law, no party hereto will, in any event, be liable to any other party, in contract, in tort or otherwise, for any consequential, incidental, indirect, special, or punitive damages of such other party or Persons represented by such other party, whether or not the possibility of such damages has been disclosed to such other party or Persons represented by such other party in advance or could have been reasonably foreseen by such other party or Persons represented by such other party. The preceding sentence shall not limit the right of any party to seek “benefit of the bargain” damages for a breach of this Agreement or specific performance or other equitable remedy as provided in Section 10.11, provided that the right of any party or Persons represented by such party to seek any of such remedies is not an admission by the other party that, under the circumstances, any such remedies are proper remedies, and provided, further, that the party against whom any such remedy is sought may not claim that the awarding of “benefit of the bargain” damage is prohibited by virtue of the restriction against liability for consequential, incidental, indirect, special or punitive damage contained in this Section 9.5(a).
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter If this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b9.3(b) or by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates9.4(a), then the Company shallwill, promptly following such event, but in no event later than two business days after such eventimmediately upon termination, pay SBC into a joint bank account in the names of Parent and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Asset Purchaser the Company Termination Fee") payable , by wire transfer of same day funds. Upon If (i) this Agreement is terminated pursuant to Section 9.2(a), 9.2(b) or 9.4(c), (ii) following the payment date hereof and prior to such termination, there shall have been made to the Company or its stockholders, or publicly announced, a bona fide Company Covered Proposal, and (iii) prior to the date that is nine months following the date of such termination, any Person shall have acquired a majority of the Termination Fee Company’s outstanding stock, or a Company Covered Proposal is consummated or a binding agreement for a Company Covered Proposal is entered into by the Company or any of its Subsidiaries, then the Company will, immediately upon such acquisition of the Company’s stock or upon consummation of a Company Covered Proposal, pay into a joint account in the names of Parent and the Expenses, Asset Purchaser the Company shall have no further liabilities or obligations under this Section 8.5(b)Termination Fee, by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent, Merger Sub and the Asset Purchaser would not enter into this Agreement; accordingly, if the Company fails to pay promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such this payment, Cingular Parent, Merger Sub or the Asset Purchaser commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee9.5(b), the Company shall will pay to Cingular its Parent, Merger Sub and the Asset Purchaser their respective costs and expenses (including attorneys' ’ fees) in connection with such this suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such the payment was required should have been made. Any amounts due under this Section 9.5(b) shall be in addition to any other damages to which Parent, Merger Sub or the Asset Purchaser may be made from entitled.
(c) If this Agreement is terminated by Parent pursuant to Section 9.4(b) or by the Company pursuant to Section 9.3(a), then Parent will, immediately upon termination, pay to the Company the Parent Termination Fee, by wire transfer of same day funds. If (i) this Agreement is terminated pursuant to Section 9.2(a), 9.2(c) or 9.3(c), (ii) following the date hereof and prior to such payment was required termination, there shall have been made to be made through Parent or its stockholders, or publicly announced, a bona fide Parent Covered Proposal, and (iii) prior to the date that is nine months following the date of such termination, any Person shall have acquired a majority of Parent’s outstanding stock, or a Parent Covered Proposal is consummated or a binding agreement for a Parent Covered Proposal is entered into by Parent or any of its Subsidiaries, then Parent will, immediately upon such acquisition of Parent’s stock or upon consummation of a Parent Covered Proposal, pay the Company the Parent Termination Fee, by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 9.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to pay promptly the amount due pursuant to this Section 9.5(c), and, in order to obtain this payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this Section 9.5(c), Parent will pay to the Company its costs and expenses (including attorneys’ fees) in connection with this suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date the payment should have been made. Any amounts due under this Section 9.5(c) shall be in addition to any other damages to which the Company may be entitled.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Black Hills Corp /Sd/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability (other than the liabilities arising under the provisions, including this Section 8.5, set forth in Section 9.1) on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated (i) by either Cingular or the Company pursuant to Section 8.2(b8.3(a), or (ii) or by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptlyshall, but in no event not later than two business days after immediately prior to the date time of such terminationtermination or not later than immediately prior to the time of entering into an agreement concerning a transaction that constitutes an Acquisition Proposal, pay Parent a termination fee of $45,000,000 plus an amount equal to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring Parent's out-of-pocket charges and expenses incurred in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 5,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if). In every case, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable payments shall be made by wire transfer of same day funds. Upon In order to facilitate the payment timely making of the Termination Fee and foregoing payments, in the Expensesevent that Parent elects to terminate this Agreement, Parent shall notify the Company thereof not later than 10:00 A.M. (New York City time) on the business day immediately preceding the date of such termination. In the event that Parent fails to provide such advance notice of its election to terminate this Agreement, the Company foregoing payments shall have no further liabilities or obligations under this Section 8.5(b)be made not later than 12:00 P.M. (New York City time) on the business day immediately following the date of such termination. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Subsidiary would not enter have entered into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, . If in order to obtain such paymentpayments, Cingular Parent or Merger Subsidiary commences a suit that results in a judgment against the Company for the fee amounts set forth in this Section 8.5(bparagraph (b) or any portion of such feeparagraph 8.5(c), the Company shall pay to Cingular Parent or Merger Subsidiary its costs and expenses (including attorneys' fees) in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the fee amounts owed at the prime rate of CitibankThe Chase Manhattan Bank, N.A. in effect from time to time during such period plus two percent.
(c) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.2(i)(x) (provided that (1) on the date of expiration or termination of the Tender Offer the Minimum Tender Condition has not been satisfied and (2)(x) at least 5 business days prior to such date, it shall have been publicly disclosed that the conditions to the Tender Offer set forth in paragraphs (a)(ii), (a)(iii), (a)(iv) and (b)(i) of Annex I have been satisfied or on such date any of such conditions shall not have been satisfied as a result of a material breach of this Agreement by the Company or (y) on such date, the condition to the Tender Offer set forth in paragraph (b)(iii) of Annex I has not been satisfied), in circumstances where within 9 months after the termination of this Agreement the Company enters into a definitive agreement in respect of, or approves or recommends an Acquisition Proposal or redeems any rights under, or modifies or agrees to modify, the Rights Agreement (or any replacement thereof), in order to facilitate any Acquisition Proposal with any Person (other than PLC or any Subsidiary of PLC), then the Company shall make payment was required to be made from Parent by wire transfer of immediately available funds a fee in the date amount of $45,000,000 plus the Expenses of Parent, payable upon the earlier of the time of entering into such payment was required agreement or consummation of an Acquisition Proposal.
(d) In the event that this Agreement is terminated by the Company or Parent pursuant to be made through Section 8.2(i)(y) (provided that (i) on the date of paymentexpiration or termination there is no condition to the Tender Offer which has failed to be satisfied as a result of a material breach of this Agreement by Parent or Merger Subsidiary and (2) prior to such termination an Acquisition Proposal with respect to the Company shall have been publicly announced or otherwise became public) in circumstances where within 9 months after the termination of this Agreement the Company enters into a definitive agreement in respect of, or approves or recommends an Acquisition Proposal or redeems any rights under, or modifies or agrees to modify, the Rights Agreement (or any replacement thereof), in order to facilitate any Acquisition Proposal with any person (other than Parent or any Subsidiary of Parent), then the Company shall make payment to Parent by wire transfer of immediately available funds a fee in the amount of $45,000,000 plus the Expenses of Parent, payable upon the earlier of the time of entering into such agreement or consummation of an Acquisition Proposal
(e) In the event that (i) this Agreement is terminated (x) by the Company and Parent pursuant to Section 8.1, (y) by the Company or Parent pursuant to Section 8.2(i)(y) (other than a termination resulting from a breach of this Agreement by the Company) or Section 8.2(ii) or (z) by the Company pursuant to Section 8.3(b) and (ii) as of the date of Termination, a Change in Control of PLC shall have occurred, then Parent shall promptly, but in no event later than two business days after the Company shall have requested payment pursuant to this Section 8.5(e), pay the Company a termination fee of $45,000,000. "Change in Control of PLC" shall mean, (i) offers for the entire issued ordinary share capital of PLC in accordance with the requirements of the United Kingdom Code on Takeovers and Mergers which (x) have been recommended by the board of directors of PLC, (y) have been publicly announced by the offeror to have become unconditional as to acceptances or (z) where the offeror has publicly announced that acceptances have been received and not withdrawn by Shareholders representing 50 percent of the issued ordinary share capital of PLC; (ii) the conveyance, transfer or lease by Parent of all or substantially all of its assets to any Person or (iii) PLC has entered into a binding written agreement providing for any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Orion Capital Corp), Merger Agreement (Royal Group Inc/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement (other than as set forth in Section 9.1) shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its directorsthem shall have any liability of any nature whatsoever hereunder, officersor in connection with the transactions contemplated hereby, employeesexcept that Sections 6.3 (Press Releases), agents, legal 6.13 (Confidentiality Agreements) and financial advisors or 9.5 (Expenses) and this Section 8.2 and all other representatives)obligations of the parties specifically intended to be performed after the termination of this Agreement shall survive any termination of this Agreement; provided, however, that, except as otherwise provided notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach provision of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular Buyer pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay to Buyer an amount equal to $8,900,000 (the "Termination Fee").
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a8.1(e) or Section 8.4(c)8.1(b) due to the failure to obtain the approval of the Company's shareholders required for the consummation of the Merger, and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to the Company Meeting or prior to the date specified in Section 8.1(b), as applicable, and (ii) within 12 months of such termination, the Company shall have (x) recommended to its shareholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall promptlypay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), but all references in no the definition of Acquisition Transaction to "15%" shall instead refer to "50%."
(d) In the event later than two business days after that this Agreement is terminated by Buyer pursuant to Section 8.1(c) and (i) an Acquisition Proposal with respect to the date Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.1(c) and (ii) within 12 months of such termination, pay the Company shall have (x) recommended to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth its shareholders or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to consummated a maximum amount of $40,000,000 transaction qualifying as an Acquisition Transaction or (the "Expenses"y) payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an a definitive agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates)an Acquisition Transaction, then the Company shall, promptly following such event, but in no event later than two business days after such event, shall pay SBC and BellSouth in proportion to their Specified Interests Buyer an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (amount equal to the "Termination Fee. For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to "15%" shall instead refer to "50%."
(e) payable by wire transfer of same day funds. Upon the Any payment of the Termination Fee and required to be made pursuant to this Section 8.2 shall be made not more than two Business Days after the Expensesdate of the event giving rise to the obligation to make such payment, unless the Termination Fee is payable as a result of the termination of this Agreement by the Company pursuant to Section 8.1(g), in which case the Termination Fee shall have no further liabilities or obligations be payable concurrently with, and as a condition of, such termination. All payments under this Section 8.5(b). The 8.2 shall be made by wire transfer of immediately available funds to an account designated by Buyer.
(f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Cingular Buyer would not enter have entered into this Agreement; accordingly. Accordingly, if the Company fails promptly to promptly pay the any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Cingular Buyer commences a suit that which results in a judgment against the Company for the fee amount set forth in this Section 8.5(b) or any portion of such fee8.2, the Company shall pay to Cingular Buyer its costs and expenses (including reasonable attorneys' feesfees and expenses) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank(as reported in The Wall Street Journal or, N.A. if not reported therein, in effect another authoritative source) on the date such payment was required to be made from the date such payment was required to be made through the date of payment.made. ARTICLE IX—
Appears in 2 contracts
Sources: Merger Agreement (Bancorp Rhode Island Inc), Merger Agreement (Brookline Bancorp Inc)
Effect of Termination and Abandonment. (a) In the event of a the ------------------------------------- termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors agents or advisors) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided herein, no such termination shall in Section 9.5(b) below and Section 10.2 and except that nothing herein will relieve any party hereto of any from liability or damages resulting from for any willful or intentional breach of this Agreement, including, without limitation, Section 1.1 hereof.
(b) In If (i) (x) the event that Offer shall have remained open for a minimum of at least 25 business days, (y) after the date hereofhereof any corporation, an Acquisition Proposal partnership, person, other entity or group (but substituting 40% for as defined in Section 13(d)(3) of the 15% threshold set forth in the definition thereofExchange Act) other than Purchaser or Merger Sub or any of their respective subsidiaries or affiliates (collectively, a "Covered ProposalPerson") shall have been become the beneficial owner ------ of 15% or more of the outstanding Shares or shall have publicly made or, after the date hereof, announced a proposal or intention to make an Acquisition Proposal or any Person shall have commenced, or shall have publicly announced an intention to commence, a tender offer or exchange offer for 15% or more of the outstanding Shares, and (whether z) the Minimum Condition (as defined in Annex A) shall not have been satisfied and the Offer is terminated without the purchase of any Shares thereunder, or not conditional(ii) to make a Covered Proposal and thereafter the Purchaser shall have terminated this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b9.3 (ii) or by Cingular 9.3(iii), or (iii) the Company shall have terminated this Agreement pursuant to Section 8.4(a) or Section 8.4(c9.4(ii), (i) then the Company shall promptly, but in no event later than two business days after the date of such terminationtermination (except as otherwise expressly provided in Section 9.4(ii) requiring an earlier payment), pay Purchaser a fee of $45,000,000 (the "Termination Fee") and shall reimburse Purchaser and Merger Sub --------------- (not later than one business day after submission of statements therefor) for (i) an amount equal to Cingular on behalf all of it, SBC and BellSouth and their respective Affiliates incurring the actual documented out-of-pocket charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Purchaser or their respective Affiliates Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 3,500,000, plus (ii) an amount equal to all of the actual documented financing fees paid by Purchaser in connection with the debt facilities referred to in the Commitment Letter up to a maximum amount of $4,000,000 (such charges, expenses and financing fees referred to in clauses (i) and (ii) collectively, the "Purchaser Expenses") ), in each case payable by wire transfer of in same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire funds. ------------------- If this Agreement is terminated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect Purchaser pursuant to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 9.3(i), then the Company shall promptly pay to Purchaser the Purchaser Expenses and, if within 18 months of the date of such termination, the Company shall enter into any agreement with respect to an Acquisition Transaction, the Company shall, promptly following such eventpromptly, but in no event later than two business days after the entry into such eventagreement, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (Purchaser the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Purchaser and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(b), and, in order to obtain such payment, Cingular Purchaser or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Purchaser or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect ▇▇▇▇▇▇ Guaranty Trust Company of New York on the date such payment was required to be made from made.
(c) If this Agreement is terminated by the date such payment was required Company pursuant to be made through Section 9.4(i) or by the date Company or Purchaser pursuant to Section 9.2(i) in the event Merger Sub or Purchaser shall have terminated the Offer in violation of paymentthe terms of the Offer, then Purchaser shall promptly reimburse the Company (not later than one business day after submission of statements therefor) for an amount equal to the Company's actual documented out-of-pocket expenses incurred in connection with the transactions contemplated by the Agreement in an amount not to exceed $3,500,000.
Appears in 2 contracts
Sources: Merger Agreement (Nellcor Puritan Bennett Inc), Merger Agreement (Mallinckrodt Inc /Mo)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of from (x) any liability or for damages resulting from any willful or intentional breach of this AgreementAgreement (whether or not any fees contemplated by this Section 8.2 are payable) or (y) any obligation to pay the termination fees provided for below or Fees and Expenses (as defined) pursuant to this Section 8.2.
(bi) In the event that after prior to the date hereofmeeting of Fred Meyer stockholders duly convened and held to vote in respect of this Agreement and the Merger, an Acquisition a Fred Meyer Business Combination Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal"as defined) shall have been publicly made or, after the date hereof, to Fred Meyer and made known to its stockholders generally or shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Fred Meyer Business Combination Proposal (whether or not such Proposal shall have been rejected or shall have been withdrawn), and thereafter (x) this Agreement is terminated pursuant to Section 8.1(e) by reason of the failure of the stockholders of Fred Meyer to approve this Agreement or the Merger at such meeting or (y) this Agreement is terminated by either Cingular or the Company Kroger pursuant to Section 8.2(b8.1(d)(y) by reason of a breach by Fred Meyer of its covenants or by Cingular pursuant to Section 8.4(a) or Section 8.4(c)agreements hereunder, (i) then the Company shall promptlyFred Meyer shall, but in no event later than two business days after the date of simultaneously with such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up Kroger a fee equal to a maximum amount of $40,000,000 55,000,000 (the "ExpensesInitial Fred Meyer Termination Fee") payable by wire transfer ). In addition, in the event that this Agreement is terminated under circumstances in which the Initial Fred Meyer Termination Fee becomes payable, and within eighteen months of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered Fred Meyer enters into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or with any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) Person with respect to any transaction a Fred Meyer Business Combination Proposal or series a Fred Meyer Business Combination Proposal is consummated, then, upon the signing of related transactions after which stockholders of such agreement or, if no agreement is signed, then at the Company immediately prior closing (and as a condition to the consummation closing, which condition may not be waived without the express written consent of Kroger) of such transaction or transactions would cease Fred Meyer Business Combination Proposal, Fred Meyer shall pay to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests Kroger an aggregate additional termination fee of equal to $1,400,000,000 (One Billion Four Hundred Million Dollars) 110,000,000 (the "Additional Fred Meyer Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges "Fred Meyer Business Combination Proposal" shall mean any Fred Meyer Acquisition Proposal, provided that all references in the agreements contained in this Section 8.5(b) are an integral part definition of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails Fred Meyer Acquisition Proposal to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company "15%" shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required be deemed to be made from the date such payment was required references to be made through the date of payment"50%."
Appears in 2 contracts
Sources: Merger Agreement (Fred Meyer Inc), Merger Agreement (Fred Meyer Inc)
Effect of Termination and Abandonment. (a) In the ------------------------------------- event of a termination of this Agreement and by either the abandonment of the Merger pursuant to Company or Acquiror as provided in this Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Acquiror or the Company or their respective affiliates, officers, directors or stockholders except (other than x) with respect to this Section 8.5 and Section 9.1 and (y) to the extent that such termination results from the breach of a party hereto or any of its representations or warranties, or any of its covenants or agreements, in each case, as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)this Agreement; provided, however, thatthat -------- ------- the Company agrees that if this Agreement shall be terminated pursuant to (i) Section 8.2(iii), except as otherwise provided hereinif at or prior to the time of the Shareholder Meeting (x) a Competing Transaction shall have been commenced, no publicly proposed or publicly disclosed and (y) the Company has not rejected such termination Competing Transaction, (ii) Section 8.3(iii), or (iii) Section 8.4(iii), then the Company shall relieve any party hereto of any liability pay to Acquiror an amount equal to $12 million; and provided, further, that Acquiror -------- ------- agrees that if this Agreement shall be terminated pursuant to Section 8.4(i) or damages resulting from any willful or intentional breach of this Agreement8.4(ii), then Acquiror shall pay to the Company an amount equal to $20 million.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly Any payment required to be made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b8.5(a) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, be made as promptly as practicable but in no event not later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all occurrence of the charges event giving rise to such payment and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable shall be made by wire transfer of same day immediately available funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular to an account designated by Acquiror or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of as the consolidated assets of the Company or (Y) with respect to case may be, except that any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from pursuant to clause (iii) of the date such payment was required to first proviso of Section 8.5(a) shall be made through not later than the date termination of paymentthis Agreement by the Company pursuant to Section 8.4(iii).
Appears in 2 contracts
Sources: Merger Agreement (Toys R Us Inc), Merger Agreement (Toys R Us Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.110.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In The Company agrees to pay Parent a fee in immediately available funds of $11.5 million (the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof“Termination Fee”) (a "Covered Proposal") and shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses of Parent actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and relating to the transactions contemplated by this Agreement prior to termination (including, but not limited to, reasonable fees and expenses of Parent’s counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors) up to a maximum amount of $40,000,000 0.5 million (the "“Expenses") ”), in each case payable by wire transfer of same day funds in the event this Agreement is terminated:
(i) (A) by Parent or the Company as permitted by Section 9.2(a) or (b), (B) after the date of this Agreement and prior to the Company Meeting, an Acquisition Proposal was made to the Company or publicly disclosed and not publicly withdrawn in good faith and without qualification prior to, with respect to any termination pursuant to Section 9.2(a), the date of such termination and, with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting and (iiC) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal; provided, that, for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 15 twelve (12) months after of such termination (I) termination, the Company or any Person of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than Cingular a confidentiality agreement) to consummate, or shall have consummated, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates,
(ii) has entered into an agreement by the Company (XA) topursuant to Section 9.2(b) and, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of prior to the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (YB) with respect pursuant to any transaction Section 9.3(a); or
(iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or series of related transactions after which recommendation to the Company’s stockholders of the Company immediately prior an Acquisition Proposal, failure to oppose an Acquisition Proposal or the consummation of such transaction or transactions would cease the Acquisition Proposal, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to own directly or indirectly at least 60% Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefor following the occurrence of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior termination event giving rise to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesTermination Fee payment obligation described in this Section 9.5(b), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment Payment of the Termination Fee and Expenses shall not be in lieu of damages incurred in the Expensesevent of a breach of this Agreement described in paragraph (b) of Section 9.4, but is otherwise the Company shall have no further liabilities or obligations under sole and exclusive remedy of the parties in connection with any termination of this Section 8.5(b)Agreement. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if . If the Company fails to promptly pay both the amount due pursuant to Termination Fee and Expenses in accordance with this Section 8.5(b), 9.5(b) and, in order to obtain such payment, Cingular Parent commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeTermination Fee and/or Expenses, as the case may be, the Company shall pay to Cingular Parent its reasonable costs and expenses (including reasonable attorneys' fees’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the fee Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate of Citibank, N.A. Citibank in effect on the date such payment was required to be made from made, after delivery to the date Company of reasonable documentation evidencing such payment was required to be made through the date of paymentcosts and expenses.
Appears in 2 contracts
Sources: Merger Agreement (Computer Associates International Inc), Merger Agreement (Concord Communications Inc)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 9.5(b), Section 9.5(c) and Section 9.5(d) below, in the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, that, except as otherwise provided hereinnotwithstanding anything in this Agreement to the contrary, (i) no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any willful fraud or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in Article X [Miscellaneous and General], Section 7.13 [Expenses], this Section 9.5 [Effect of Termination and Abandonment] and the Confidentiality Agreement shall survive the termination of this Agreement.
(b) In the event that after this Agreement is terminated:
(i) by either Versum or Entegris pursuant to Section 9.2(a) [Outside Date] (if the date hereofsole reason the Merger was not consummated was the failure of Versum to convene and hold the Versum Stockholders Meeting prior to the Outside Date) or Section 9.2(c)(i) [Requisite Versum Vote Not Obtained] and, an in either case,
(A) a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") with respect to Versum shall have been publicly made or, after directly to the date hereof, stockholders of Versum or shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to Versum (and thereafter this Agreement is terminated by either Cingular such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification five (5) Business Days prior to (i) the Company date of such termination, with respect to any termination pursuant to Section 8.2(b9.2(a) [Outside Date] or by Cingular (ii) the date of the Versum Stockholders Meeting, with respect to termination pursuant to Section 8.4(a9.2(c)(i) [Requisite Versum Vote Not Obtained]), and
(B) within twelve (12) months after such termination, (1) Versum or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal with respect to Versum or (2) there shall have been consummated any Acquisition Proposal with respect to Versum (in each case of clauses (1) and (2), with fifty percent (50%) being substituted in lieu of fifteen percent (15%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2),
(ii) by Entegris pursuant to Section 8.4(c)9.3(a) [Versum Change of Recommendation], (i) then the Company shall promptly, but in no event later than two business days (2) Business Days after the date of such termination,
(iii) by either Entegris or Versum pursuant to Section 9.2(c)(i) [Requisite Versum Vote Not Obtained] (and, at the time of such termination pursuant to Section 9.2(c)(i) [Requisite Versum Vote Not Obtained], Entegris had the right to terminate this Agreement pursuant to Section 9.3(a) [Versum Change of Recommendation]), then promptly, but in no event later than, in the case of such termination by Entegris, two (2) Business Days or, in the case of such termination by Versum, one (1) Business Day after the date of such termination, or
(iv) by Versum pursuant to Section 9.4(c) [Versum Termination to Accept Superior Proposal], then concurrently and as a condition to the effectiveness of such termination, Versum shall, in the case of Section 9.5(b)(i), Section 9.5(b)(ii), Section 9.5(b)(iii) or Section 9.5(b)(iv), pay the Versum Termination Fee to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Entegris or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable its designee by wire transfer of same day funds immediately available cash funds. In no event shall Versum be required to pay the Versum Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated:
(i) by either Versum or Entegris pursuant to Section 9.2(a) [Outside Date] (if the sole reason the Merger was not consummated was the failure of Entegris to convene and hold the Entegris Stockholders Meeting prior to the Outside Date) or Section 9.2(c)(ii) [Requisite Entegris Vote Not Obtained] and, in either case,
(A) a bona fide Acquisition Proposal with respect to Entegris shall have been publicly made directly to the stockholders of Entegris or shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to Entegris (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification five (5) Business Days prior to (i) the date of such termination, with respect to any termination pursuant to Section 9.2(a) [Outside Date] or (ii) ifthe date of the Entegris Stockholders Meeting, with respect to termination pursuant to Section 9.2(c)(ii) [Requisite Entegris Vote Not Obtained]), and
(B) within 15 twelve (12) months after such termination termination, (I1) any Person (other than Cingular Entegris or any of its Affiliates) has Subsidiaries shall have entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) Alternative Acquisition Agreement with respect to any transaction Acquisition Proposal with respect to Entegris or series (2) there shall have been consummated any Acquisition Proposal with respect to Entegris (in each case of related transactions after which stockholders clauses (1) and (2), with fifty percent (50%) being substituted in lieu of fifteen percent (15%) in each instance thereof in the Company definition of “Acquisition Proposal”), then immediately prior to or concurrently with the consummation occurrence of such transaction or transactions would cease to own directly or indirectly at least 60% either of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction events described in the same proportion as they owned prior to the consummation of such transaction, foregoing clauses (B)(1) or (IIB)(2),
(ii) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one by Versum pursuant to Section 9.4(a) [Entegris Change of its Subsidiaries and any Person (other than Cingular or any of its Affiliates)Recommendation], then the Company shall, promptly following such eventpromptly, but in no event later than two business days (2) Business Days after the date of such eventtermination,
(iii) by either Entegris or Versum pursuant to Section 9.2(c)(ii) [Requisite Entegris Vote Not Obtained] (and, at the time of such termination pursuant to Section 9.2(c)(ii) [Requisite Entegris Vote Not Obtained], Versum had the right to terminate this Agreement pursuant to Section 9.4(a) [Entegris Change of Recommendation]), then promptly, but in no event later than, in the case of such termination by Versum, two (2) Business Days or, in the case of such termination by Entegris, one (1) Business Day after the date of such termination, or
(iv) by Entegris pursuant to Section 9.3(c) [Entegris Termination to Accept Superior Proposal], then concurrently and as a condition to the effectiveness of such termination, Entegris shall, in the case of Section 9.5(c)(i), Section 9.5(c)(ii), Section 9.5(c)(iii) or Section 9.5(c)(iv) pay SBC and BellSouth in proportion the Entegris Termination Fee to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable Versum or its designee by wire transfer of same day immediately available cash funds. Upon In no event shall Entegris be required to pay the payment Entegris Termination Fee on more than one occasion.
(d) In the event that this Agreement is terminated:
(i) by either Versum or Entegris pursuant to Section 9.2(c)(i) [Requisite Versum Vote Not Obtained] at a time when the condition set forth in Section 8.1(b) [Entegris Stockholder Approval] has been satisfied, then promptly, but in no event later than, in the case of such termination by Entegris, three (3) Business Days or, in the case of such termination by Versum, one (1) Business Day after the date of such termination, Versum shall pay all of the Termination Fee documented out-of-pocket costs, fees and expenses of counsel, accountants, financial advisors and other experts and advisors as well as fees and expenses incident to negotiation, preparation and execution of this Agreement and related documentation and stockholders’ meetings and consents (collectively, “Costs”) of Entegris up to a maximum amount equal to $35 million (the Expenses“Expense Amount”), the Company shall have no further liabilities to Entegris or obligations its designee by wire transfer of immediately available cash funds; provided that any amounts paid under this Section 8.5(b). 9.5(d)(i) shall be credited (without interest) against any Versum Termination Fee if paid to Entegris (or its designee) pursuant to the terms of this Agreement, and
(ii) by either Versum or Entegris pursuant to Section 9.2(c)(ii) [Requisite Entegris Vote Not Obtained] at a time when the condition set forth in Section 8.1(a) [Versum Stockholder Approval] has been satisfied, then promptly, but in no event later than, in the case of such termination by Versum, three (3) Business Days or, in the case of such termination by Entegris, one (1) Business Day after the date of such termination, Entegris shall pay all of the documented out-of-pocket Costs of Versum up to the Expense Amount to Versum or its designee by wire transfer of immediately available cash funds; provided that any amounts paid under this Section 9.5(d)(ii) shall be credited (without interest) against any Entegris Termination Fee if paid to Versum (or its designee) pursuant to the terms of this Agreement.
(e) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Cingular the other Parties would not enter into this Agreement; accordingly, if the Company Versum or Entegris, as applicable, fails to promptly pay the amount due pursuant to this Section 8.5(b)9.5, and, in order to obtain such payment, Cingular Entegris or Versum, as applicable, commences a suit that results in a judgment against the Company Versum or Entegris, as applicable, for the fee fees set forth in this Section 8.5(b) 9.5 or any portion of such feefees, the Company such paying Party shall pay to Cingular the other Party its costs and expenses (including reasonable attorneys' ’ fees, costs and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. as published by The Wall Street Journal (in effect on the date such payment was required to be made made) from the date such payment was required to be made through the date of payment. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that in the event that any termination fee becomes payable by, and is paid by, Versum or becomes payable by, and is paid by, Entegris, as applicable, such fee shall be the receiving Party’s sole and exclusive remedy for damages against the other Parties and their respective former, current or future stockholders, directors, officers, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement set forth in this Agreement or the failure of the Transactions to be consummated; provided, however, that no such payment shall relieve any Party of any liability or damages to any other Party resulting from any fraud or Willful Breach of this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Versum Materials, Inc.), Merger Agreement (Entegris Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of from (x) any liability or for damages resulting from any willful or and intentional breach of this Agreement.Agreement or (y) any obligation to provide reimbursement for or pay the Abacus Termination Fee (defined below) or the Alphabet Termination Fee (defined below) (each a "Termination Fee"), or Fees and Expenses (as defined below) pursuant to this Section 8.2;
(b) In the event that after Abacus terminates this Agreement pursuant to Section 8.1(g), simultaneously with such termination, Abacus shall pay to Alphabet a fee equal to $177,000,000 (the date hereof"Abacus Termination Fee"). In the event that Alphabet terminates this Agreement pursuant to Section 8.1(h), simultaneously with such termination, Alphabet shall pay to Abacus a fee equal to $240,000,000 (the "Alphabet Termination Fee").
(i) In the event that an Acquisition Abacus Business Combination Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal"defined below) shall have been publicly made or, after the date hereof, to Abacus and made known to its stockholders generally or shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Abacus Business Combination Proposal prior to the meeting of Abacus' stockholders duly convened and held to vote in respect of this Agreement and the Merger and thereafter (i) this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b8.1(f) by reason of the failure of the stockholders of Abacus to approve this Agreement or by Cingular the Merger at such meeting and (ii) within six months of the termination of this Agreement, Alphabet enters into an agreement with any Person with respect to an Abacus Business Combination Proposal or an Abacus Business Combination Proposal is consummated. Abacus shall, upon the occurrence of the event described in clause (ii) above, pay to Alphabet the Abacus Termination Fee.
(ii) In the event that an Alphabet Business Combination Proposal (defined below) shall have been made to Alphabet and made known to its stockholders generally or shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Alphabet Business Combination Proposal prior to the meeting of Alphabet's stockholders duly convened and held to vote in respect to the issuance of shares pursuant to this Agreement and thereafter (i) this Agreement is terminated pursuant to Section 8.4(a8.1(f) by reason of the failure of the stockholders of Alphabet to approve such issuance at such meeting and (ii) within six months of the termination of this Agreement, Alphabet enters into an agreement with any Person with respect to an Alphabet Business Combination Proposal or Section 8.4(c)an Alphabet Business Combination Proposal is consummated. Alphabet shall, upon the occurrence of the event described in clause (iii) then the Company shall promptly, but in no event later than two business days after the date of such terminationabove, pay to Cingular on behalf Abacus the Alphabet Termination Fee.
(d) In the event that this Agreement is terminated pursuant to Section 8.1(f) by reason of itthe failure of any Party's stockholders to approve this Agreement or the Merger at a meeting of stockholders duly convened and held to vote in respect of this Agreement and the Merger or the issuance of shares pursuant thereto, SBC and BellSouth and their respective Affiliates incurring charges such Party shall promptly upon such termination (following receipt of a statement therefor) reimburse the other Party for all fees and expenses (including, without limitation, fees and expenses of counsel, financial advisors, accountants, consultants and other advisors and Representatives) incurred by it in connection with this Agreement and the transactions contemplated hereby all Merger ("Fees and Expenses").
(e) In the event that this Agreement is terminated as a result of Abacus' Board of Directors taking any of the charges and expenses actually incurred by Cingularactions described in Section 8.1(e)(i), SBC, BellSouth or their respective Affiliates in connection with Abacus shall promptly after such termination pay to Alphabet the Abacus Termination Fee. In the event that this Agreement is terminated as a result of Alphabet's Board of Directors taking any of the actions described in Section 8.1 (e) (ii), Alphabet shall promptly after such termination pay to Abacus the Alphabet Termination Fee.
(f) (i) In the event that an Abacus Business Combination Proposal shall have been made to Abacus and the transactions contemplated by made known to its stockholders generally or shall have been made directly to its stockholders generally, or any Person shall have publicly announced an intention (whether or not conditional) to make an Abacus Business Combination Proposal, and this Agreement up is subsequently terminated pursuant to Section 8.1(d) as a maximum amount result of $40,000,000 (the "Expenses") payable an intentional breach by wire transfer Abacus of same day funds its representations, warranties and (ii) ifcovenants by Abacus, and within 15 six months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered termination, Abacus shall enter into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular for an Abacus Business Combination Proposal or any of an Abacus Business Combination Proposal is consummated, simultaneously with its Affiliates)entering into such agreement or upon such consummation, then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company Abacus shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on Alphabet the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentAbacus Termination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Inc /De/), Merger Agreement (Albertsons Inc /De/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); , provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) If this Agreement is terminated by Parent pursuant to Section 8.4(a) or, with respect to any breach of Section 6.3 which is not inadvertent, Section 8.4(b), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee of $8 million (the “Termination Fee”), payable by wire transfer of immediately available funds to an account designated in writing by the Parent.
(c) If the Company elects to terminate this Agreement pursuant to Section 8.3(c), then the Company shall, as a condition precedent to such termination, pay Parent the Termination Fee, payable by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(a) or Section 8.2(b) or this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a8.4(c) and, within 12 months of the termination of the Agreement, the Company enters into an agreement providing for, or Section 8.4(cconsummates, an Acquisition Proposal (other than a public by the Company of newly-issued securities that represent less than 30% of the outstanding capital stock of the Company as of the date hereof, the primary purpose of which is to raise capital) (whether or not such Acquisition Agreement related to an Acquisition Proposal that had been made or announced at the time of the termination of this Agreement), then the Company shall, upon the earlier to occur of such execution or consummation, pay Parent the Termination Fee, payable by wire transfer of immediately available funds to an account designated in writing by Parent.
(e) If this Agreement is terminated by (i) Parent pursuant to Section 8.4(c) or (ii) the Company pursuant to Sections 8.3(a) or 8.3(b), then the Company non-terminating party shall promptly, but in no event later than two business days after the date being notified of such terminationby the terminating party, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually expenses, including those of the Exchange Agent, its financial advisors, attorneys, accountants and other advisors, incurred by Cingular, SBC, BellSouth or their respective Affiliates the terminating party and its affiliates in connection with this Agreement and the transactions contemplated by this Agreement up Agreement, not to a maximum amount of exceed $40,000,000 (the "Expenses") 2 million, payable by wire transfer of same day immediately available funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into to an agreement (X) to, directly or indirectly, acquire account designated in writing by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person terminating party; provided that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations not be obligated to pay any such costs and expenses under this Section 8.5(b). 8.5(e) if the Company is required to pay a Termination Fee.
(f) The Company acknowledges that the agreements contained in this Section Sections 8.5(b), 8.5(c), 8.5(d) and 8.5(e) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due Termination Fee pursuant to this Section Sections 8.5(b), 8.5(c) or 8.5(d), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeTermination Fee, the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. as reported in effect The Wall Street Journal on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Biomet Inc), Merger Agreement (Interpore International Inc /De/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, that, that except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of any covenant of such party set forth in this Agreement (in any such case in which Keystone is not the breaching party, to the extent any such liability or damages exceed any Termination Fee which may have been paid to Keystone pursuant to Section 8.5(b)); and, provided, further, that if such termination arises pursuant to Section 8.3(b) or clause (ii) of Section 8.4 as a result of a breach of a representation and warranty made by the other party (other than a breach caused solely as a result of an event or circumstance occurring or arising subsequent to the date of the execution and delivery of this Agreement), such other party shall pay to the non-breaching party promptly, but in no event later than two days after the date of such termination, a fee equal to two hundred fifty thousand dollars ($250,000).
(b) In the event that (i) after the date hereof, an hereof a bona fide Acquisition Proposal (but substituting 40% for with respect to the 15% threshold set forth in Company or any Subsidiary of the definition thereof) (a "Covered Proposal") Company that was not solicited by the Company after the date hereof shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries by any Person and made known to shareholders generally or has been made directly to shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Acquisition Proposal with respect to the Company or any Subsidiary of the Company and such Acquisition Proposal or announced intention shall not have been withdrawn prior to the Shareholders Meeting and thereafter this Agreement is terminated by either Cingular Keystone or the Company pursuant to Section 8.2(b8.2(ii) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all as a result of the charges failure of the Company's shareholders to approve the Merger at the meeting referred to herein and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 nine months after such termination (I) any Person (other than Cingular or any of its Affiliates) has the Company shall have entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one to consummate a transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all constitute an Acquisition Proposal if it were the assets subject of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transactiona proposal, or (IIii) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between this Agreement is terminated (x) by the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b8.3(a) or any portion of such fee, the Company shall pay (y) by Keystone pursuant to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.Section 8.4(i),
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Amalgamation and the transactions contemplated by this Agreement pursuant to this Article VIII8, this Agreement (other than as set forth in Section 9.1Sections 6.03(b) (confidentiality), 6.07 (Fees and Expenses), 8.05 (Effect of Termination and Abandonment) and Article 9 (Miscellaneous)) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional and material breach of any representations, warranties, covenants or agreements contained in this Agreement; provided further that any failure by Parent and Amalgamation Sub to have immediately available funds necessary for the payment of the aggregate amounts payable pursuant to Article 2 will be deemed a willful and material breach hereunder if, as a result of such failure, the parties are unable to or do not (i) timely obtain the Requisite Regulatory Approvals or (ii) timely consummate the Amalgamation or the other transactions contemplated by this Agreement.
(b) In the event that after the date hereofNotwithstanding Section 6.07, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter if this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) 8.03 or by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c)8.04, (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC reimburse Parent and BellSouth and their respective its Affiliates incurring charges and expenses for all Expenses incurred in connection with this Agreement and the transactions contemplated hereby all execution of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (1 million and pay to Parent the "Expenses") payable Company Termination Fee in cash by wire transfer in immediately available funds to an account designated by Parent, concurrently with and as a condition to such termination. The parties agree that the foregoing liquidated damages are reasonable considering all the circumstances existing as of same day funds the date hereof and constitute the parties’ good faith estimate of the actual Losses reasonably expected to result from the termination of this Agreement as described in this Section 8.05(b). Except as contemplated by Section 6.07, Parent agrees that, to the fullest extent permitted by Law, Parent’s right to payment of such liquidated damages as provided in this Section 8.05(b) shall be its sole and exclusive remedy for any Losses or Liability arising out of or in connection with any termination of this Agreement as described in this Section 8.05(b).
(c) If this Agreement is terminated (i) by the Company or Parent pursuant to (A) Section 8.02(a) (other than due to any failure to obtain any Requisite Regulatory Approval required by Section 7.01(b) that is not caused by a breach by the Company of its obligations under Section 6.04) or (B) Section 8.02(b), or (ii) ifby Parent pursuant to Section 8.02(c), within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationand, in one transaction or each case, at any related series time after the date of transactions, 40% or more of the voting power of the outstanding securities of this Agreement a bona fide Acquisition Proposal shall have been made to the Company, its officers or ownership directors or control of 40% its shareholders or more of the consolidated assets of the Company or (Y) any Person shall have publicly announced an intention to make an Acquisition Proposal with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates)termination, then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million DollarsA) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under reimburse Parent and its Affiliates for all Expenses incurred in connection with the execution of this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of Agreement and the transactions contemplated by this AgreementAgreement up to a maximum amount of $1 million and (B) if within 12 months of such termination, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails enters into or consummates a definitive agreement with respect to promptly pay any Acquisition Proposal (with all percentages in the amount due pursuant definition of Acquisition Proposal increased to this Section 8.5(bfifty percent (50%)), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against then upon the Company for earlier of the fee set forth in this Section 8.5(b) execution or any portion consummation of such feedefinitive agreement, the Company shall also pay to Cingular Parent an amount equal to the Company Termination Fee. The parties agree that the foregoing liquidated damages are reasonable considering all the circumstances existing as of the date hereof and constitute the parties’ good faith estimate of the actual Losses reasonably expected to result from the termination of this Agreement as described in this Section 8.05(c). Except as contemplated by Section 6.07, Parent agrees that, to the fullest extent permitted by Law, Parent’s right to payment of such liquidated damages as provided in this Section 8.05(c) shall be its costs sole and expenses (including attorneys' fees) exclusive remedy for any Losses or Liability arising out of or in connection with such suit, together with interest on the amount any termination of the fee at the prime rate of Citibank, N.A. this Agreement as described in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentthis Section 8.05(c).
Appears in 1 contract
Sources: Agreement and Plan of Amalgamation (Quanta Capital Holdings LTD)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of from (x) any liability or for damages resulting from any willful or and intentional breach of this Agreement.Agreement or (y) any obligation to provide reimbursement for or pay the Abacus Termination Fee (defined below) or the Alphabet Termination Fee (defined below) (each a "Termination Fee"), or Fees and Expenses (as defined below) pursuant to this Section 8.2;
(b) In the event that after Abacus terminates this Agreement pursuant to Section 8.1(g), simultaneously with such termination, Abacus shall pay to Alphabet a fee equal to $177,000,000 (the date hereof"Abacus Termination Fee"). In the event that Alphabet terminates this Agreement pursuant to Section 8.1(h), simultaneously with such termination, Alphabet shall pay to Abacus a fee equal to $240,000,000 (the "Alphabet Termination Fee").
(i) In the event that an Acquisition Abacus Business Combination Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal"defined below) shall have been publicly made or, after the date hereof, to Abacus and made known to its stockholders generally or shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Abacus Business Combination Proposal prior to the meeting of Abacus' stockholders duly convened and held to vote in respect of this Agreement and the Merger and thereafter (i) this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b8.1(f) by reason of the failure of the stockholders of Abacus to approve this Agreement or by Cingular the Merger at such meeting and (ii) within six months of the termination of this Agreement, Abacus enters into an agreement with any Person with respect to an Abacus Business Combination Proposal or an Abacus Business Combination Proposal is consummated. Abacus shall, upon the occurrence of the event described in clause (ii) above, pay to Alphabet the Abacus Termination Fee.
(ii) In the event that an Alphabet Business Combination Proposal (defined below) shall have been made to Alphabet and made known to its stockholders generally or shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Alphabet Business Combination Proposal prior to the meeting of Alphabet's stockholders duly convened and held to vote in respect to the issuance of shares pursuant to this Agreement and thereafter (i) this Agreement is terminated pursuant to Section 8.4(a8.1(f) by reason of the failure of the stockholders of Alphabet to approve such issuance at such meeting and (ii) within six months of the termination of this Agreement, Abacus enters into an agreement with any Person with respect to an Alphabet Business Combination Proposal or Section 8.4(c)an Alphabet Business Combination Proposal is consummated. Alphabet shall, upon the occurrence of the event described in clause (iii) then the Company shall promptly, but in no event later than two business days after the date of such terminationabove, pay to Cingular on behalf Abacus the Alphabet Termination Fee.
(d) In the event that this Agreement is terminated pursuant to Section 8.1(f) by reason of itthe failure of any Party's stockholders to approve this Agreement or the Merger at a meeting of stockholders duly convened and held to vote in respect of this Agreement and the Merger or the issuance of shares pursuant thereto, SBC and BellSouth and their respective Affiliates incurring charges such Party shall promptly upon such termination (following receipt of a statement therefor) reimburse the other Party for all fees and expenses (including, without limitation, fees and expenses of counsel, financial advisors, accountants, consultants and other advisors and Representatives) incurred by it in connection with this Agreement and the transactions contemplated hereby all Merger ("Fees and Expenses ").
(e) In the event that this Agreement is terminated as a result of Abacus' Board of Directors taking any of the charges and expenses actually incurred by Cingularactions described in Section 8.1(e)(i), SBC, BellSouth or their respective Affiliates in connection with Abacus shall promptly after such termination pay to Alphabet the Abacus Termination Fee. In the event that this Agreement is terminated as a result of Alphabet's Board of Directors taking any of the actions described in Section 8.1 (e) (ii), Alphabet shall promptly after such termination pay to Abacus the Alphabet Termination Fee.
(f) (i) In the event that an Abacus Business Combination Proposal shall have been made to Abacus and the transactions contemplated by made known to its stockholders generally or shall have been made directly to its stockholders generally, or any Person shall have publicly announced an intention (whether or not conditional) to make an Abacus Business Combination Proposal, and this Agreement up is subsequently terminated pursuant to Section 8.1(d) as a maximum amount result of $40,000,000 (the "Expenses") payable an intentional breach by wire transfer Abacus of same day funds its representations, warranties and (ii) ifcovenants by Abacus, and within 15 six months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered termination, Abacus shall enter into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular for an Abacus Business Combination Proposal or any of an Abacus Business Combination Proposal is consummated, simultaneously with its Affiliates)entering into such agreement or upon such consummation, then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company Abacus shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on Alphabet the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentTermination Fee.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates); provided, however, thatand notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional material breach of this Agreement, (ii) the provisions set forth in the second sentence of Section 9.01 shall survive termination of this Agreement and termination shall not relieve any party of any liability under such provisions.
(b) In the event that after the date hereof, an (i) a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, to FCB or any of its Subsidiaries or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to FCB or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn) and thereafter this Agreement is terminated by Table of Contents either Cingular FCB or the Company NMB pursuant to Section 8.2(b8.01(f)(i) or (ii) this Agreement is terminated by FCB pursuant to Section 8.01(g) or by Cingular NMB pursuant to Section 8.4(a) or Section 8.4(c8.01(c), (i) then the Company FCB shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to NMB a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 4,000,000 (One Billion Four Hundred Million Dollarsthe “Termination Fee”) (provided, however, that the "Termination Fee"Fee to be paid pursuant to clause (iv) of Section 8.01(g) shall be paid as set forth in such section) payable by wire transfer of same day funds. Upon the payment of the ; provided, however, that no Termination Fee shall be payable to NMB pursuant to clause (i) of this paragraph (b) unless and the Expenses, the Company until within 12 months of such termination FCB or any of its Subsidiaries shall have no further liabilities entered into a definitive agreement (other than merely a confidentiality agreement) with respect to, or obligations under this Section 8.5(bshall have consummated or shall have approved or recommended to FCB’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “15%” in the definition thereof). The Company FCB’s payment shall be the sole and exclusive remedy of NMB for damages against FCB and any of its Subsidiaries and their respective Representatives with respect to the breach of any covenant or agreement giving rise to such payment. FCB acknowledges that the agreements contained in this Section 8.5(b8.02(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular NMB would not enter into this Agreement; accordingly, if the Company FCB fails to promptly pay the amount due pursuant to this Section 8.5(b8.02(b), and, in order to obtain such payment, Cingular NMB commences a suit that results in a judgment against the Company FCB for the fee set forth in this Section 8.5(b8.02(b) or any portion of such fee, the Company FCB shall pay to Cingular NMB or Merger Sub its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the publicly announced prime rate of Citibank, N.A. interest published in effect The Wall Street Journal on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Merger Agreement (FCB Bancorp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.16.6, Section 6.11, this Section 8.5 and Article IX each of which shall survive the termination of this Agreement) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, herein no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, (x) an Acquisition Alternative Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Alternative Proposal with respect to the Company and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c8.3(a), (i) then the Company shall promptly, promptly but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges reimburse Parent for any costs and expenses (including legal, consulting and accounting fees and disbursements and the costs and expenses incurred in connection with the Merger, including, without limitation, printing and mailing the Joint Proxy Statement/Prospectus (and any amendment or supplement thereto), filing the S-4 (and any amendment or supplement thereto) and the costs of filing under the Hart-Scott Act) incurred by Parent in connection with this Agreement and Agreement; ▇▇▇▇▇▇▇▇, the transactions contemplated hereby all of the charges and Company shall not be required to reimburse Parent for any such expenses actually incurred by Cingularexceeding $150,000 (collectively, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "ExpensesTermination Fee") payable in cash by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into to an agreement (X) to, directly or indirectly, acquire account designated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)Parent. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee Termination Fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular its Parent, in addition to the Termination Fee, the reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Sources: Merger Agreement (Steelcloud Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger transactions contemplated hereby pursuant to this Article VIIIIX, this Agreement (other than as set forth in Sections 6.2, this Section 9.19.5 and Article X each of which shall survive the termination of this Agreement) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, (i) no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
, and (bii) In in the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular Purchaser or the Company Seller pursuant to Section 8.2(b9.2(ii) or by Cingular Seller pursuant to Section 8.4(a9.3(a) or Section 8.4(cSeller shall reimburse Purchaser for all of its reasonable costs and expenses (including reasonable legal, consulting and accounting fees and disbursements) incurred by Purchaser in connection with this Agreement (the "Purchaser Expenses"); provided, (i) then the Company Seller shall not be required to reimburse Purchaser for any such Purchaser Expenses exceeding $400,000. Seller shall promptly, but in no event later than two ten business days after the date it receives notice from Purchaser setting forth the amount of such terminationcosts and expenses, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum such amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into to an agreement (X) to, directly or indirectly, acquire account designated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day fundsPurchaser. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company Seller acknowledges that the agreements contained in this Section 8.5(b9.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Purchaser would not enter into this Agreement; accordingly, if .
(b) In the Company fails event that (x) an Alternative Proposal shall have been made to promptly pay the amount due pursuant Seller or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to this Section 8.5(b), make an Alternative Proposal with respect to Seller and, in order each case, such Alternative Proposal shall not have been withdrawn and thereafter this Agreement is terminated by either Purchaser or Seller pursuant to obtain Section 9.2(i) or (y) this Agreement is terminated by either Purchaser or Seller pursuant to Section 9.2(ii) or by Purchaser pursuant to Section 9.4, then Seller shall promptly but in no event later than five business days after the date of such paymenttermination, Cingular commences a suit reimburse Purchaser for all Purchaser Expenses, provided, Seller shall not be required to reimburse Purchaser for any such Purchaser Expenses exceeding $400,000. Seller acknowledges that results in a judgment against the Company for the fee set forth agreements contained in this Section 8.5(b9.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount are an integral part of the fee at the prime rate of Citibanktransactions contemplated by this Agreement, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentand that, without these agreements, Purchaser would not enter into this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors directors or other representativesRepresentatives); providedPROVIDED, however, that, except as otherwise provided hereinHOWEVER, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an (i) a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or to any of its Subsidiaries or to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered bona fide Acquisition Proposal to the Company or to any of its Subsidiaries or to its shareholders generally and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b8.2(ii), or (ii) this Agreement is terminated (x) by the Company pursuant to Section 8.3(a) or (y) by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then if terminated by the Company, the Company shall promptly, but in no event later than two business days after the date of prior to such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred termination or if terminated by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) ifParent, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, termination pay SBC and BellSouth Parent in proportion to their Specified Interests an aggregate termination immediately available funds a fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 65,000,000 payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth fee, charges or expenses referred to in this Section 8.5(b) or any portion of such feepara- graph (b), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee such fee, charges or expenses at the prime base rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, this Agreement (other than as set forth in this Section 8.5 and in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors the Company Related Parties or other representativesParent Related Parties); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of the Company for any liability or for damages resulting from any willful or intentional breach of this AgreementWillful Breach by the Company prior to such termination by any party hereto.
(b) In The Company shall pay to Parent a fee equal to $24,000,000 (the event that “Company Termination Fee”) and, in addition, shall reimburse Parent for any and all reasonable and documented out-of-pocket fees and expenses (including fees and expenses of financial advisors, outside legal counsel, financing sources (including any fees payable under the Debt Commitment Letter and related documentation), accountants, experts, diligence agents, consultants and hedging costs and arrangements) actually incurred by Parent or on its behalf in connection with the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, up to a maximum amount of $8,200,000 (the “Parent Expenses”) if:
(i) Parent terminates this Agreement pursuant to Section 8.4(a) (Change in Recommendation); or
(ii) (A) after the date hereofof this Agreement, an a bona fide Acquisition Proposal (but substituting 40% for shall have been communicated in writing by any Person to senior management or the 15% threshold set forth in board of directors of the definition thereof) (a "Covered Proposal") Company or any of its Subsidiaries or shall have been publicly announced or made or, after the date hereof, by any Person directly to the Company’s stockholders generally or shall have been otherwise publicly announced an intention disclosed by the Company, (whether or not conditionalB) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(a) (Termination Date), Section 8.2(b) or by Cingular pursuant to Section 8.4(a(Stockholder Vote) or Section 8.4(c), 8.4(b) (iCompany Breach) then the Company shall promptly, but in no event later than two business days and (C) within twelve (12) months after the date of such termination, pay the Company enters into a definitive agreement with respect to Cingular on behalf any Acquisition Proposal (regardless of itwhen made or the counterparty thereto) or consummates any Acquisition Proposal (regardless of when made or the counterparty thereto); provided, SBC that solely for purposes of this Section 8.5(b)(ii)(C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “fifteen percent (15%) or more” shall be deemed to be references to “fifty percent (50%) or more”. Any Company Termination Fee and BellSouth and their respective Affiliates incurring charges and expenses in connection with Parent Expenses due under this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses"Section 8.5(b) payable shall be paid by wire transfer of same same-day funds (I) in the case of clause (i) above, within two (2) Business Days after the date of termination of this Agreement and (II) in the case of clause (ii) ifabove, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more on the earlier of the voting power date of execution of any such definitive agreement or the date of consummation of the outstanding securities Acquisition Proposal (regardless of the Company, date of such consummation).
(c) Parent shall pay to the Company a fee equal to $48,000,000 (the “Parent Termination Fee”) if:
(i) the Company terminates this Agreement pursuant to Section 8.3(a) (Parent Breach) or ownership or control of 40% or more of the consolidated assets of Section 8.3(b) (Failure to Close); or
(ii) the Company or Parent terminates this Agreement pursuant to Section 8.2(a) (YTermination Date) with respect to any transaction or series of related transactions after which stockholders of at a time when the Company immediately prior could have terminated this Agreement pursuant to the consummation of such transaction Section 8.3(a) or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the CompanySection 8.3(b). Any Parent Termination Fee due under this Section 8.5(c) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable shall be paid by wire transfer of same same-day funds. Upon funds within two (2) Business Days after the payment date of termination of this Agreement.
(d) The parties acknowledge and hereby agree that in no event shall either the Company be required to pay the Company Termination Fee and Parent Expenses or Parent be required to pay the ExpensesParent Termination Fee, as the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company case may be, on more than one occasion.
(e) Each party acknowledges that the agreements contained in this Section 8.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular no party would not enter have entered into this Agreement; and accordingly, if the Company or Parent, as applicable, fails to pay promptly pay the any amount that may become due pursuant to this Section 8.5(b) or Section 8.5(c) (any such amount due, a “Payment”), and, in order to obtain such paymentPayment, Cingular Parent or the Company, as applicable, commences a suit that which results in a judgment against the Company or Parent, respectively, for the fee set forth in this Section 8.5(b) applicable Payment, or any portion of such feethereof, the Company party with such judgment against them shall pay to Cingular the other party its reasonable and documented costs and expenses (including attorneys' ’ fees) actually incurred in connection with such suitsuit and any appeal relating thereto, together with interest on the amount of the fee Payment, which shall accrue at the prime rate of Citibankas published in the Wall Street Journal, N.A. in effect Eastern Edition, on the date such payment Payment was first required to be made paid from the such date such payment was required to be made through the date of paymentfull payment thereof.
(f) The parties agree that the payment of the Parent Termination Fee and reimbursement of any costs and expenses, and payment of any losses, pursuant to Section 6.10 (to the extent related to the cost of printing and mailing the Proxy Statement), Section 6.15(h), Section 6.22 and Section 8.5(e), shall be the sole and exclusive remedy available to the Company under or related to this Agreement and the transactions contemplated hereby (including the failure thereof to be consummated) in the event such payment becomes due and payable and, upon the actual receipt by the Company of the Parent Termination Fee, neither Parent nor Parent’s Affiliates nor its or their respective directors, officers, employees, members, managers, partners, shareholders, agents or Representatives (the “Parent Related Parties”) shall have any other liability for any losses suffered under, arising out of or relating to this Agreement and the transactions contemplated hereby (including the termination hereof and the abandonment of the Merger), whether at law, in contract, in tort or otherwise, regardless of whether any such termination or abandonment was as the result of a Willful Breach by any Parent Related Party, and neither the Company nor any other Person shall be entitled to bring or maintain any other claim, action or proceeding against Parent or any other Parent Related Party arising out of this Agreement, the Debt Financing, the Merger or any matters forming the basis for such termination. Notwithstanding anything to the contrary in this Section 8.5, Parent and Merger Sub shall be jointly and severally liable for the payment of the Parent Termination Fee to the extent the same becomes payable in accordance with this Agreement.
(g) The parties agree that, except in the event of a Willful Breach by the Company of Section 6.2, the payment of the Company Termination Fee and Parent Expenses and, if applicable, the costs and expenses of Parent pursuant to Section 8.5(e), shall be the sole and exclusive monetary remedy available to Parent and Merger Sub under or related to this Agreement and the transactions contemplated hereby (including the failure thereof to be consummated) in the event any such payment becomes due and payable and, upon the actual receipt by Parent of the Company Termination Fee and Parent Expenses, neither the Company, nor its Subsidiaries or Affiliates, nor any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, Representatives, agents nor any their respective assignees or successors nor any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, Affiliate, Representative, agent, assignee or successor of any of the foregoing (collectively, “Company Related Parties”) shall have any other liability for any losses suffered under, arising out of or relating to this Agreement and the transactions contemplated hereby (including the termination hereof and the abandonment of the Merger), whether at law, in contract, in tort or otherwise (in each case, other than as a result of a Willful Breach by the Company of Section 6.2), and neither Parent, Merger Sub nor any other Person shall be entitled to bring or maintain any other claim, action or proceeding against the Company or any other Company Related Party arising out of this Agreement, the Merger or any matters forming the basis for such termination. For the avoidance of doubt, while Parent and Merger Sub may pursue both a grant of specific performance and the payment of the Company Termination Fee and Parent Expenses (in each case in accordance with the terms of this Agreement), under no circumstances shall Parent and Merger Sub be permitted or entitled to receive both a grant of specific performance and any money damages, including all or any portion of the Company Termination Fee and Parent Expenses.
(h) Notwithstanding anything to the contrary herein, each party to this Agreement on behalf of itself, its Subsidiaries and Affiliates hereby acknowledges and agrees that (i) no Debt Financing Related Party, in its capacity as such, shall have any liability or obligation, whether based in tort, contract or otherwise and whether arising at law or at equity in connection with the transactions contemplated hereby or otherwise based on or by reason of this Agreement; provided, that notwithstanding the foregoing, nothing in this Section 8.5(h) shall in any way limit or modify any Debt Financing Source’s obligations to Parent or Merger Sub under the Debt Commitment Letter and (ii) only Parent and Merger Sub (including their permitted assigns under the Debt Commitment Letter) shall be permitted to bring any claim against a Debt Financing Source for failure to satisfy any obligation to fund the Debt Financing pursuant to the Debt Commitment Letter. As used in this Agreement, “Debt Financing Related Parties” means the Debt Financing Sources, their respective Affiliates and the Debt Financing Sources and their respective Affiliates’ respective former, current or future general or limited partners, direct or indirect shareholders or equityholders, managers, members, directors, officers, employees, controlling persons, agents, advisors and other representatives, and their successors and permitted assigns.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event that this Agreement is terminated (i) pursuant to Section 8.2(a) or 8.4(a) (and such breach shall have been an intentional breach of a covenant) at any time when an Alternative Proposal shall have been publicly announced or otherwise communicated to the Company’s Board of Directors and not withdrawn prior to the date of such termination and within nine (9) months from the date of any such foregoing termination, the Company enters into a definitive agreement with any third party with respect to an Alternative Proposal or any such transaction is consummated or (ii) pursuant to Section 8.3(b) or 8.4(b), then, in each such case, the Company shall, upon termination of this Agreement and (or in the abandonment case of the Merger termination pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), clause (i) then of this Section 8.5(a), upon the Company shall promptly, but in no event later than two business days after earlier to occur of the date execution of such terminationdefinitive agreement and such consummation) pay Buyer a non-refundable fee, pay by wire transfer of immediately available funds to Cingular on behalf an account designated by Buyer, in an amount equal to (A) $16,000,000 plus (B) all of it, SBC and BellSouth and their respective Affiliates incurring charges Buyer’s actual out-of-pocket costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby all consummation and negotiation of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum hereby, including, but not limited to, legal, professional and service fees and expenses (the “Transaction Expenses“); provided, however, that the aggregate reimbursement amount of all Transaction Expenses shall not exceed $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)2,500,000. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b8.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the other party would not enter into this Agreement.
(b) In the event of termination of this Agreement and the abandonment of the Offer and the Merger pursuant to this Article VIII, all obligations of the parties hereto shall terminate, except no such termination shall relieve any party hereto of any liability or damages resulting from any intentional breach of this Agreement; accordingly, if provided that the Company fails to promptly pay obligations of the amount due parties pursuant to this Section 8.5(b8.5 and the provisions of Sections 6.6 (Publicity), and6.9 (Expenses), in order to obtain such payment6.12 (Standstill Agreements), Cingular commences a suit that results in a judgment against 9.2 (Notices), 9.3 (Assignment, Binding Effect), 9.6 (Governing Law) and 9.13 (Enforcement of Agreement), which obligations shall survive the Company for the fee set forth in termination of this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentAgreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except (i) as otherwise provided herein, in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(bi) In ARB shall immediately pay or cause to be paid a termination fee, representing liquidated damages, of $5,380,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following: (1) in the event that after the date hereof, (A) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, to ARB or its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to ARB and (B) thereafter this Agreement is terminated by either Cingular Parent or the Company ARB pursuant to (x) Section 8.2(b8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or by Cingular pursuant inaction of ARB or (y) Section 8.02(b)(ii) (solely as a result of the failure to receive the ARB Shareholder Approval) and (C) within twelve (12) months of the termination of this Agreement, ARB consummates an Acquisition Proposal, provided, that for purposes of this Section 8.4(a) or Section 8.4(c8.05(b)(i)(1), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay references to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction “10%” in the same proportion as they owned prior definition of “Acquisition Proposal” shall instead refer to the consummation “50%;
(c) Each of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries ARB and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company Parent acknowledges that the agreements agreement contained in this Section 8.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreement Parent would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty. If ARB fails to promptly pay Parent any amounts due under paragraph (b) above within the amount due pursuant to this Section 8.5(b)time period specified therein, and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company ARB shall pay to Cingular its all costs and expenses (including attorneys' ’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime rate of Citibank, N.A. interest printed in effect The Wall Street Journal on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade. ARTICLE IX MISCELLANEOUS 9.01.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In Agreement and provided, further, that in the event that after the date hereofof any such termination, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company shall repay to Parent within 10 days of such termination any amounts advanced to it by Parent pursuant to Section 8.2(b6.1(b) or of this Agreement, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the date of termination such interest to accrue from the date of such termination to the date of repayment pursuant to this Section 8.5(a). The Company shall repay all such amounts advanced to it by Cingular Parent pursuant to Section 8.4(a6.1(b) or Section 8.4(cof this Agreement, together with accrued interest thereon calculated as provided for in the immediately preceding sentence (the aggregate amount of such advances and accrued interest thereon collectively, the “Repayment Amount”), (i) then exclusively by delivering to Parent shares of Parent Common Stock having an aggregate value equal to the Repayment Amount. For purposes of the immediately preceding sentence, the Company and Parent agree that the value of each such share of Parent Common Stock delivered shall promptlybe equal to the Parent Common Stock Price or, but in no event later than two business days if after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and prior to the transactions contemplated hereby all termination of the charges and expenses actually incurred by Cingularthis Agreement, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular the Company or any of its AffiliatesSubsidiaries or affiliates) has entered enters into an a definitive binding agreement (X) towith Parent to acquire, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationotherwise, in one transaction or any related series of transactions, 40% all or more substantially all of the assets of Parent or a majority of the voting power of the outstanding securities of Parent, and the Companyaverage of the per share closing prices of Parent Common Stock as reported by ArcaEx for the ten consecutive trading days ending on the last trading day prior to the date of such termination is greater than the Parent Common Stock Price, such greater price.
(b) In the event that (i) an Acquisition Proposal shall have been made (and not subsequently withdrawn) to the Company or any of its Subsidiaries or any Person shall have publicly announced (and not subsequently withdrawn) a bona fide intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(ii), or ownership (ii) this Agreement is terminated
(A) by the Company pursuant to Section 8.3(a), (B) by Parent pursuant to Section 8.4(i) or control (C) by Parent pursuant to Section 8.4(iii), provided that the actions referred to in Section 8.4(iii) are either taken by, or at the direction or request of, the Company or any of 40% or more its Subsidiaries or, if taken by any of the consolidated assets other Persons described in Section 6.2 as affiliates, agents or Representatives of the Company or (Y) with respect to any transaction of its Subsidiaries other than at the direction or series of related transactions after which stockholders request of the Company or any of its Subsidiaries and, in the case of actions taken by any such other Persons other than at the direction or request of the Company or any of its Subsidiaries, the Company does not cause such actions to be immediately prior to terminated after receiving knowledge thereof, then the consummation Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee of $2,000,000, in each case by wire transfer of same day funds; provided, however, that no such termination fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and until within 12 months of such termination (x) any Person (other than Parent) (an “Acquiring Party”) has acquired, by purchase, merger, consolidation, sale, assignment, lease, transfer or otherwise, in one transaction or transactions would cease to own directly or indirectly at least 60% any related series of transactions, a majority of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all of the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, Company or (IIy) there has been consummated any such a merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person an Acquiring Party. In the event that (other than Cingular 1) this Agreement is terminated by Parent pursuant to Section 8.2(iii) or any of its AffiliatesSection 8.4(iv), then the Company shall, promptly following such eventParent shall promptly, but in no event later than two business days after being notified of such eventby the Company, pay SBC to the Company all of the actual out-of-pocket documented charges and BellSouth expenses incurred by the Company in proportion connection with the Agreement and the transactions contemplated by this Agreement, up to their Specified Interests an a maximum aggregate amount of $2,000,000, and (2) this Agreement is terminated by Parent pursuant to Section 8.2(i) and the condition set forth in Section 7.1(c) has not been satisfied at the time of such termination, Parent shall promptly, but in no event later than two days after the date of such termination, pay the Company a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable 2,000,000, in each case by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the parties would not enter into this Agreement; accordingly, if the Company a party fails to promptly pay the amount due by such party pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular another party commences a suit that results in a judgment against the Company other party for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company party against which such action was commenced shall pay to Cingular the other party its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made paid, from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Archipelago Holdings Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Transactions pursuant to this Article VIIIARTICLE XI, this Agreement (other than as set forth in Section 9.113.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors officers or other representativesRepresentatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this AgreementAgreement prior to such termination.
(b) In the event that at any time after the date hereof, an of the Original Formation Agreement and prior to its termination a bona fide Acquisition Proposal (but substituting 40% assuming, for the this purpose only, that all references to “15% threshold set forth %” in the definition thereof) of such term were changed to “a majority” (a "“Covered Proposal"”)) shall have been publicly made or, after the date hereof, to Stratex or any of its Subsidiaries or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal with respect to Stratex or any of its Subsidiaries and thereafter this Agreement is terminated by either Cingular H▇▇▇▇▇ or the Company Stratex pursuant to Section 8.2(b11.1(b)(i) (unless (i) any of the conditions set forth in Section 10.1(e) or Section 10.3(other than Section 10.3(g)) shall not have been satisfied (or, in the case of any such condition to be satisfied at the Closing, capable of such satisfaction) at the time of such termination, or (ii) the only condition to H▇▇▇▇▇’ obligation to effect the Contribution Transaction which is not satisfied at the time of such termination (other than, in the case of any such conditions to be satisfied at the Closing, those that are capable of such satisfaction) is Section 10.2(f) and the events, conditions or circumstances which caused such condition not to be satisfied were not, directly or indirectly, within the control of Stratex or any of its Subsidiaries) or Section 11.1(b)(ii) or by Cingular H▇▇▇▇▇ pursuant to Section 8.4(a11.1(c)(ii) or Section 8.4(c11.1(c)(iii), then (iA) then the Company Stratex shall promptly, but in no event later than two business days after being notified of such by H▇▇▇▇▇, reimburse H▇▇▇▇▇ for all of the documented out-of-pocket expenses incurred by H▇▇▇▇▇ in connection with this Agreement and the Transactions up to a maximum amount of $2 million by wire transfer of immediately available funds and (B) if Stratex (I) consummates any Covered Proposal with any Person within the twelve-month period immediately following the date on which this Agreement has been so terminated (the “Tail Period”) or (II) enters into a definitive agreement for any Covered Proposal with any Person during the Tail Period and (x) consummates any Covered Proposal with such Person within the twelve-month period immediately following the end of the Tail Period or (y) consummates any Covered Proposal with any other Person within the fifteen-month period immediately following the end of the Tail Period, then in each such case Stratex shall pay to H▇▇▇▇▇ on or prior to such consummation of such Covered Proposal by wire transfer of immediately available funds a termination fee equal to $14.5 million (the “Termination Fee”) minus the aggregate amount of expenses previously reimbursed pursuant to clause (A) of this Section 11.2(b).
(c) In the event that this Agreement is terminated by H▇▇▇▇▇ pursuant to Section 11.1(c)(i) or Section 11.1(c)(iv), then Stratex shall promptly, but in no event later than two days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and H▇▇▇▇▇ the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable Termination Fee by wire transfer of same day funds and immediately available funds.
(iid) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of In the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect event that Stratex terminates this Agreement pursuant to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 11.1(e), then Stratex shall pay to H▇▇▇▇▇ the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable Fee by wire transfer of same day funds. Upon the payment of the Termination Fee immediately available funds immediately prior to, and the Expensesas a condition of, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company such termination.
(e) Stratex acknowledges that the agreements contained in this Section 8.5(b11.2(b), Section 11.2(c) and Section 11.2(d) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular H▇▇▇▇▇ would not enter into this Agreement; accordingly, if the Company Stratex fails to promptly pay the amount any amounts due pursuant to this Section 8.5(b11.2(b), Section 11.2(c) or Section 11.2(d), and, in order to obtain such payment, Cingular H▇▇▇▇▇ commences a suit that results in a judgment against the Company Stratex for the fee set forth in this Section 8.5(b) or any portion of such feeamounts, the Company Stratex shall pay to Cingular H▇▇▇▇▇ its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with suit and any amounts payable by Stratex pursuant to this Section 11.2 which are not paid when due shall bear interest on from the amount of due date to the fee payment date at a rate per annum equal to 2% above the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentamounts were due.
Appears in 1 contract
Sources: Formation, Contribution and Merger Agreement (Harris Corp /De/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIISection 10, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is made; and this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives) except as provided in 10.5(b); provided, however, that, except as otherwise provided herein, (i) no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this AgreementAgreement and (ii) notwithstanding (i) above, in the event this Agreement is terminated by Parent because of a willful breach of a representation or warranty of the Company then Parent may recover under this Section 10.5(a) (such recovery not to limit any other rights Parent may have under 10.5(b)) a reimbursement of its out-of-pocket expenses not to exceed $1,500,000.
(b) In the event that after the date hereof, (I) (a) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal"other than pursuant to this Agreement) shall have been publicly made or, after to the date hereof, Company or any Person (other than Parent or any of its Affiliates) shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company and thereafter this Agreement is terminated by either Cingular or the Company under Section 10.3(i) or Parent pursuant to Section 8.2(b10.4(a)(ii) or by Cingular pursuant to Section 8.4(aand (b) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after Person making the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and Acquisition Proposal which was outstanding at the transactions contemplated hereby all time of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 termination (the "ExpensesAcquiring Party") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement with the Company to consummate such Acquisition Proposal within nine months of such termination, and such Acquisition Proposal is consummated, or (XII) toany Person within nine months of termination of this Agreement has acquired, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationotherwise, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% a majority of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all of the assets of the Company) immediately following such transaction , then, in the same proportion as they owned prior to event the consummation of such transaction, circumstances described in (I) or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), occurred then the Company shall, promptly following such event, but in no event later than two business days after such eventshall promptly, pay SBC and BellSouth in proportion to their Specified Interests an aggregate Parent a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of 6,000,000 in same day funds. Upon funds to an account previously designated by Parent to the payment Company in writing; provided, however, that in the event the Company has already reimbursed the out-of-pocket expenses of Parent pursuant to the Termination Fee and the Expenseslast sentence of 10.5(a), then, in such event, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due termination fee payable pursuant to this Section 8.5(b), and, in order to obtain sentence shall be $6,000,000 less the amount of such payment, Cingular commences a suit that results in a judgment reimbursement. The Company's payment of this termination fee shall be the sole and exclusive remedy of Parent and Merger Sub against the Company for and its respective directors, officers, employees, agent, advisors or other representatives in the event this Agreement is terminated and the termination fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentis payable.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any member of its directors, officers, employees, agents, legal and financial advisors the Parent Group or other representativesthe Company Group); provided, however, that, that (i) except as otherwise provided hereinherein (including in Section 7.5(e)), no such termination shall (x) relieve any party hereto of any liability to pay the Termination Fee or damages resulting from the Excluded Party Fee, as applicable, or the Parent Fee or to reimburse Reimbursable Expenses pursuant to this Section 7.5 or (y) relieve any party hereto of any liability incurred or suffered as a result of any willful or intentional and material breach of this Agreement prior to such termination, and (ii) the provisions listed in the second sentence of Section 8.1 shall survive the termination of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal that:
(but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal"x) shall have been publicly made orthis Agreement is terminated pursuant to Sections 7.2(a), after the date hereof7.2(b) or 7.4(b) (other than as provided in Section 7.5(b)(iv)), (y) any Person shall have delivered to the Company or publicly announced disclosed an intention Acquisition Proposal prior to the Stockholders Meeting and (z) within 12 months of such termination, the Company enters into a definitive agreement with respect to any Acquisition Proposal or consummates the transactions contemplated by any Acquisition Proposal (whether the Acquisition Proposal made prior to the Stockholders Meeting or not conditionala different Acquisition Proposal), then the Company shall, on the date such definitive agreement is entered into or such Acquisition Proposal is consummated (whichever is earlier), pay or cause to be paid an amount equal to $[●] million (the “Termination Fee”) to make a Covered Proposal Parent and thereafter reimburse Parent for all of its Reimbursable Expenses by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clause (z) above the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b7.3(a), the Company shall pay the Termination Fee to Parent prior to such termination and shall reimburse Parent for all of its Reimbursable Expenses, provided, that if such termination occurs prior to the Cut-Off Date on account of a Superior Proposal made by a Person that is an Excluded Party, then the Company shall pay to Parent an amount equal to $[●] million (the “Excluded Party Fee”) and shall reimburse Parent for all of its Reimbursable Expenses, in each case by wire transfer of same day funds to one or more accounts designated by Cingular Parent;
(iii) this Agreement is terminated by Parent pursuant to Section 8.4(a7.4(a), the Company shall pay the Termination Fee to Parent and shall reimburse Parent for all of its Reimbursable Expenses, promptly, and in any event within two (2) Business Days, after the date of such termination; provided, that if such termination pursuant to Section 7.4(a) occurs prior to the Cut-Off Date on account of a Superior Proposal made by a Person that is an Excluded Party, then the Company shall pay to Parent the Excluded Party Fee and shall reimburse Parent for all of its Reimbursable Expenses, in each case by wire transfer of same day funds to one or more accounts designated by Parent promptly, and in any event within two (2) Business Days, after the date of such termination;
(iv) this Agreement is terminated by Parent pursuant to Section 7.4(b) as a result of any material breach by the Company of the covenants contained in Section 5.2, the Company shall pay the Termination Fee to Parent and shall reimburse Parent for all of its Reimbursable Expenses, promptly, and in any event within two (2) Business Days, after the date of such termination, by wire transfer of same day funds to one or more accounts designated by Parent; or
(v) this Agreement is terminated by the Company pursuant to Section 7.2(a), 7.2(b) or Section 8.4(c7.3(b), at any time at which Parent was entitled to terminate this Agreement pursuant to Section 7.4(a) or 7.4(b) (in the later case, as a result of any material breach by the Company of the covenants contained in Section 5.2), the Company shall pay the Termination Fee to Parent and shall reimburse Parent for all of its Reimbursable Expenses, promptly, and in any event within two (2) Business Days, after the date of such termination, by wire transfer of same day funds to one or more accounts designated by Parent. For the avoidance of doubt, in no event shall the Company be required to pay the Excluded Party Fee or Termination Fee on more than one occasion. Parent shall have the right to assign its right to receive the Termination Fee, Reimbursable Expenses and/or Excluded Party Fee, as applicable, to one or more Persons in its sole discretion.
(c) In the event that:
(i) this Agreement is terminated pursuant to (A) Section 7.3(b), at any time at which Parent was not entitled to terminate this Agreement, or (B) Section 7.3(c), then the Company Parent shall promptly, but in no event later than two business days (2) Business Days, after the date of such termination, pay or cause to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and be paid to the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Company or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up its designees an amount equal to a maximum amount of $40,000,000 [●] (the "Expenses") payable “Parent Fee”), by wire transfer of same day funds and to an account designated by the Company; or
(ii) if, within 15 months after this Agreement is terminated by Parent pursuant to Section 7.2(a) and the Company would have been entitled to terminate this Agreement pursuant to Sections 7.3(b) or 7.3(c) but for such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect pursuant to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 7.2(a), then the Company shall, promptly following such eventParent shall promptly, but in no event later than two business days (2) Business Days, after the date of such eventtermination, pay SBC and BellSouth in proportion or cause to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (be paid to the "Termination Company the Parent Fee") payable , by wire transfer of same day fundsfunds to an account designated by the Company. Upon For the payment avoidance of doubt, in no event shall Parent be required to pay the Termination Parent Fee and on more than one occasion. The Company shall have the Expensesright to assign its right to receive the Parent Fee to one or more Persons in its sole discretion.
(d) Notwithstanding anything to the contrary herein, if a Chosen Court has ordered Parent to pay the Parent Fee to the Company, the Company shall be entitled to enforce such order only if within five (5) Business Days following entry of such order, the Company shall have irrevocably offered and committed in a writing delivered to Parent to complete the Merger in accordance with the terms of this Agreement and, within three (3) Business Days after the Parent’s receipt of such writing, Parent and Merger Sub shall not have consummated the Merger.
(e) Notwithstanding anything to the contrary in this Agreement, in the event Parent and Merger Sub fail to effect the Closing, or otherwise breach this Agreement or fail to perform hereunder (in any case, whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance as and only to the extent expressly permitted by Section 8.7, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (i) Parent, Merger Sub, the Guarantors, (ii) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of Parent, Merger Sub or the Guarantors, (iii) any Financing Source, or any lead arranger, arranger, agent or Representative of or to Parent, Merger Sub or the Guarantors or (iv) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing (collectively, the “Parent Group”) in respect of this Agreement, any Contract executed in connection herewith, including the Financing Letters and the Limited Guaranty, and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and collect, if due, the Parent Fee pursuant to Section 7.5(c) from Parent or pursuant to the Limited Guaranty, and upon payment of the Parent Fee, no member of the Parent Group shall have any further liabilities liability or obligations under obligation relating to or arising out of this Section 8.5(b)Agreement, the Financing Letters or the Limited Guaranty, or the transactions contemplated hereby or thereby. The Company acknowledges that the agreements contained agrees to cause any Action pending in connection with this Section 8.5(b) are an integral part Agreement or any of the transactions contemplated hereby (including any Action related to the Financing, the Equity Commitment Letters or the Debt Financing Letters) by this Agreementthe Company Group against any member of the Parent Group to be dismissed with prejudice promptly, and thatin any event within five (5) Business Days, without these agreements, Cingular would not enter into this Agreement; accordingly, if after payment of the Parent Fee. In no event shall any member of the Company fails Group seek or permit to promptly pay be sought on behalf of any member of the amount due pursuant Company Group any damages from, or otherwise bring any Action against, any member of the Parent Group in connection with this Agreement or any of the transactions contemplated hereby (including any Action related to this Section 8.5(bthe Financing, the Equity Commitment Letters or the Debt Financing Letters), and, other than an Action to recover payment of the Parent Fee when required in order accordance with and to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee extent set forth in Section 7.5(c) or for specific performance solely under the circumstances and as specifically set forth in Section 8.7. In no event shall the Company be entitled to seek the remedy of specific performance of this Agreement other than solely under the circumstances and as specifically set forth in Section 8.7. Nothing in this Section 8.5(b7.5(e) shall in any way expand or be deemed or construed to expand the circumstances under which the Parent Group may be liable under this Agreement or any portion of such feethe transactions contemplated hereby (including the Financing). For the avoidance of doubt, in no event shall the Parent Group have any liability under or in respect of this Agreement or the transactions contemplated hereby in excess of an aggregate amount equal to, or other than in respect of, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentParent Fee.
Appears in 1 contract
Sources: Merger Agreement (Aly Nauman A)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); providedPROVIDED, however, thatHOWEVER, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, (i) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company and thereafter this Agreement is terminated pursuant to Section 8.2(ii) or Section 8.4(a) (i) and, in any such case, within nine (9) months following such termination, (x) the Company enters into an agreement with respect to an Acquisition Proposal with any person or entity other than Parent (such person being hereinafter referred to as an "OTHER ACQUIROR") or (y) an Other Acquiror shall have become the beneficial owner (as such term is defined in Rule 13d-3 of the Exchange Act) of a majority of the outstanding shares of capital stock entitled to vote in the election of directors of the Company (each such transaction set forth in clause (x) and (y) above being hereinafter referred to as an "OTHER TRANSACTION"), in either case at a per Share price of $25.50 or more (the "MINIMUM PRICE"); it being understood that to the extent that securities of an Other Acquiror are paid in an Other Transaction, for purposes of calculating the per Share price, the value of the securities of such Other Acquiror to be paid in such Other Transaction shall be calculated based on the closing market price of such securities on the trading day next preceding the date of the public announcement of such Other Transaction; PROVIDED, THAT, Parent is not in material breach of this Agreement; PROVIDED, FURTHER, THAT, in the event that the Company changes the number of Shares issued and outstanding prior to the end of such period commencing nine (9) months after such termination as a result of a reclassification, stock split (including a reverse split), stock dividend or distribution, recapitalization, merger, subdivision, issuer tender offer or exchange offer, or other similar transaction, or pays any cash dividend other than regular cash dividends not in excess of $.04 per Share, the Minimum Price shall be equitably adjusted, then the Company shall within two business days after the occurrence of an Other Transaction pay Parent a termination fee of $15 million (the "TERMINATION FEE") and shall promptly, but in no event later than two business days after being notified of such by either Cingular Parent, pay all of the documented out-of-pocket charges and expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement (together, the "PARENT EXPENSES") up to a maximum amount of $1,500,000, in each case payable by wire transfer of same day funds. In addition, if this Agreement is terminated by the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c8.3(a), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC Parent the Termination Fee and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such eventshall promptly, but in no event later than two business days after being notified of such eventby Parent, pay SBC and BellSouth in proportion all of the Parent Expenses up to their Specified Interests an aggregate termination fee a maximum amount of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 1,500,000 in each case payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Sources: Merger Agreement (Augat Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement that (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal"x) any person shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Alternative Proposal and thereafter this Agreement is terminated either by either Cingular or the Company pursuant to Section 8.2(b9.3(a) or by Cingular either party pursuant to Section 8.4(a9.2(b) or (y) the Board of Directors of the Company shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of this Agreement or the Merger or shall have recommended an Alternative Proposal to the Company stockholders and Parent shall have terminated this Agreement pursuant to Section 8.4(c9.4(a), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf Parent a fee of it$17 million, SBC and BellSouth and their respective Affiliates incurring charges and plus documented out-of-pocket expenses incurred by Parent in connection with the transactions completed hereby not to exceed $ 1.5 million (collectively, the "Payment") or (z) this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth is terminated for any reason other than those set forth in clauses (x) or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses"y) payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person above (other than Cingular or any of its Affiliatespursuant to Section 9.3(b) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to c)), and if within 12 months thereafter any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has Alternative Proposal shall have been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates)consummated, then the Company shall, promptly following such eventshall promptly, but in no event later than two business days after consummation of any such eventtransaction, pay SBC Parent the lessor of (i) the Payment and BellSouth (ii)(a) 3.5% of the sum of the following: (A) the consideration paid to the Company stockholders pursuant to such Alternative Proposal, (B) the principal amount of any debt outstanding on the date such Alternative Proposal is consummated, and (C) the amount paid or agreed to be paid to the Department in proportion connection with the matters contemplated by the Forebearance Agreement or any amendments or supplements thereto plus (b) documented out-of-pocket expenses incurred by Parent in connection with the transactions contemplated hereby not to their Specified Interests an aggregate termination fee exceed $1.5 million; PROVIDED, HOWEVER, that no payment shall be made to Parent under clause (z) above if the Agreement is terminated pursuant to Section 9.2(a) and, at the time of $1,400,000,000 (One Billion Four Hundred Million Dollarsthe termination, the only condition to closing not satisfied was the condition set forth in Section 8.1(b), 8.1(c), 8.1(d) (the "Termination Fee") or 8.1(e)(or any combination thereof). Any amount payable hereunder shall be payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b9.5(a) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Parent and Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(a), and, in order to obtain such payment, Cingular Parent or Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee9.5(a), the Company shall pay to Cingular Parent its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank12% per annum.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, N.A. all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section 9.5 and Sections 7.10 and 7.14 and except for the provisions of Sections 10.3, 10.4, 10.5, 10.7, 10.9, 10.10 and 10.13. Moreover, in effect on the date such payment was required event of termination of this Agreement pursuant to be made Sections 9.2, 9.3 and 9.4, nothing herein shall prejudice the ability of the non-breaching party from seeking damages from any other party for any breach of this Agreement, including without limitation, attorneys' fees and the date such payment was required right to be made through the date of paymentpursue any remedy at law or in equity.
Appears in 1 contract
Sources: Merger Agreement (Physician Corporation of America /De/)
Effect of Termination and Abandonment. (a) In the event of a termination of this the Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, written notice thereof shall as promptly as practicable be given to the other parties to this Agreement and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned, without further action by any of the parties hereto. If this Agreement is terminated as provided herein: (other than i) except as set forth provided in Section 9.1) 9.5(b), there shall become void and of no effect with be no liability or obligation on the part of any party hereto (Purchaser, the Purchaser Subsidiaries, the Company or of any of its the Company Subsidiaries or their respective officers and directors, officersand all obligations of the parties shall terminate, employeesexcept for the obligations of the parties pursuant to this Section 9.5, agentsexcept for the provisions of Sections 4.20, legal 5.20, 7.4, 10.4, 10.5, 10.6 and financial advisors or other representatives); 10.10, except for the obligations of the parties set forth in the Confidentiality Agreements referred to in Section 7.1 hereof (provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter if this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c9.3(c), (iPurchaser shall no longer be bound by paragraph 9 of the Confidentiality Agreement dated April 26, 1995) then and except that a party who is in material breach of its representations, warranties, covenants or agreements set forth in this Agreement shall be liable for damages occasioned by such breach, including without limitation any expenses incurred by the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses other party in connection with this Agreement and the transactions contemplated hereby hereby, and (ii) all of the charges filings, applications and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and other submissions made pursuant to the transactions contemplated by this Agreement up shall, to a maximum amount the extent practicable, be withdrawn from the agency or person to which made.
(b) Under the circumstances set forth in this Section 9.5(b), and only under these circumstances, the Company agrees to make certain termination payments to Purchaser as follows:
(i) if an Acquisition Proposal which provides that the Company's shareholders will receive in excess of $40,000,000 27.50 per share is then outstanding and
(A) the "Expenses") payable by wire transfer Board of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets Directors of the Company withdraws or (Y) with respect modifies or changes in a manner adverse to any transaction Purchaser or series Sub its approval or recommendation of related transactions after which stockholders of this Agreement or the Merger in order to permit the Company immediately prior to execute a definitive agreement relating to such Acquisition Proposal and the Company is unable to sustain the burden of proving that at least one condition to the consummation of such transaction or transactions would cease the Merger (other than the conditions referred to own directly or indirectly at least 60% of in Section 8.1(d), Section 8.2(c) and Section 8.3(a)) has not been satisfied and is unlikely to be satisfied by the voting power of Closing Date, or
(B) this Agreement and the outstanding securities Merger shall fail to receive the requisite vote for approval and adoption by the shareholders of the Company (or at the Company Special Meeting and the Company is unable to sustain the burden of another Person proving that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior at least one condition to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person Merger (other than Cingular the conditions referred to in Section 8.1(d), Section 8.2(c) and Section 8.3(a))has not been satisfied and is unlikely to be satisfied by the Closing Date, or
(C) this Agreement and the Merger receives the requisite vote for approval and adoption by the shareholders of the Company at the Company Special Meeting, but Alex. ▇▇▇▇▇ refuses or any states that it will refuse to deliver the fairness opinion, and the Company is unable to sustain the burden of proving that at least one condition to the consummation of the Merger (other than the conditions referred to in Section 8.2(c) and Section 8.3(a)) has not been satisfied and is unlikely to be satisfied by the Closing Date, then the Company shall pay the Purchaser the sum of $14,000,000 in cash (the "Termination Payment").
(ii) if an Acquisition Proposal which provides that the Company's shareholders will receive in excess of $27.50 per share is then outstanding and
(A) the Board of Directors of the Company withdraws or modifies or changes in a manner adverse to Purchaser or Sub its Affiliatesapproval or recommendation of this Agreement or the Merger in order to permit the Company to execute a definitive agreement relating to such Acquisition Proposal and the Company is able to sustain the burden of proving that at least one condition to the consummation of the Merger (other than the conditions referred to in Section 8.1(d), Section 8.2(c) and Section 8.3(a)) has not been satisfied and is unlikely to be satisfied as of the Closing Date, or
(B) this Agreement and the Merger shall fail to receive the requisite vote for approval and adoption by the shareholders of the Company at the Company Special Meeting and the Company is able to sustain the burden of proving that at least one condition to the consummation of the Merger (other than the conditions referred to in Section 8.1(d), Section 8.2(c) and Section 8.3(a)) has not been satisfied and is unlikely to be satisfied by the Closing Date, or
(C) this Agreement and the Merger receives the requisite vote for approval and adoption by the shareholders of the Company at the Company Special Meeting, but Alex. ▇▇▇▇▇ refuses or states that it will refuse to deliver the fairness opinion, and the Company is able to sustain the burden of proving that at least one condition to the consummation of the Merger (other than the conditions referred to in Section 8.2(c) and Section 8.3(a)) has not been satisfied and is unlikely to be satisfied by the Closing Date, then the Company shall pay the Purchaser one-half the Termination Payment.
(iii) if an Acquisition Proposal which provides that the Company's shareholders will receive in excess of $27.50 per share is not then outstanding and this Agreement and the Merger shall fail to receive the requisite vote for approval and adoption by the shareholders of the Company at the Company Special Meeting and all other conditions to the consummation of the Merger have been satisfied or are likely to be satisfied (other than the conditions referred to in Section 8.1(d), Section 8.2(c) and Section 8.3(a)), then the Company shallshall reimburse Purchaser for its out-of-pocket expenses, reasonably incurred in connection with the Merger, such reimbursement not to exceed one- third of the Termination Payment. All such termination payments shall be made as promptly following such event, as practicable but in no event not later than two three business days after such eventtermination, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable such payments shall be made by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are immediately available funds to an integral part of the transactions contemplated account designated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentPurchaser.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Amalgamation and the Sub Amalgamation pursuant to this Article VIIIV, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that(i) the parties shall perform their obligations contained in this Section 5.5, Sections 3.7 and 3.9 and Article VI, and (ii) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement.
(b) In the event that (i) an Acquisition Proposal (which, for purposes of this paragraph shall include any Acquisition Proposal made prior to the date hereof only if the Person who made such proposal or offer makes known to the Company or its Representatives, or publicly discloses, that such Person remains interested in pursuing such proposal or offer after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been made (and not subsequently withdrawn) and shall have become publicly made or, after the date hereof, disclosed or known to any of its shareholders or any Person shall have publicly announced (and not subsequently withdrawn) an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b5.2(b) or (ii) this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a5.4(a) or Section 8.4(c5.4(c), or pursuant to Section 5.4(d) if a bona fide Acquisition Proposal shall have been made to the Company or its Representatives after the date hereof (iwhether or not publicly disclosed) or pursuant to Section 5.4(b) by reason of any breach by the Company occurring after a bona fide Acquisition Proposal has been made to the Company or its Representatives (whether or not publicly disclosed), then in each case (A) the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular Parent, on behalf of it, SBC Parent and BellSouth its equity holders and their respective Affiliates and Representatives incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby hereby, all of the charges charges, fees and expenses actually incurred by CingularParent, SBC, BellSouth its equity holders or their respective Affiliates and Representatives in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 50 million (the "“Expenses"”) payable by wire transfer of same day funds and (iiB) if, if within 15 9 months after of such termination (Ix) any Person (other than Cingular or any of its AffiliatesParent) (an “Acquiring Party”) has entered into an agreement (Xor, in the case of a tender offer, the Board of Directors of the Company makes any recommendation to Company shareholders in favor of such offer) toproviding for the acquisition, directly or indirectly, acquire by purchase, merger, consolidation, amalgamation, sale, assignment, lease, transfer or similar business combinationotherwise, in one transaction or any related series of transactions, of 40% or more of the voting power of the issued and outstanding securities of the Company, Company or ownership or control of 40% or more of the consolidated assets of the Company or (Yy) with respect any Person has entered into an agreement relating to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such a merger, consolidation consolidation, amalgamation or similar business combination or any such sale, assignment, lease or transaction between involving the Company or one of its Subsidiaries and any Person (other than Cingular or any an Acquiring Party which provides, in the event of its Affiliates)consummation, then for the shareholders of the Company shallimmediately prior to such transaction to hold less than 60% of the issued and outstanding voting securities of the surviving company on a fully diluted basis, promptly following such eventthe Company shall promptly, but in no event later than two business days after such the relevant event, pay SBC and BellSouth in proportion Parent an amount equal to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) 120,000,000 (the "Termination “Fee") payable ”), less any Expenses previously paid by the Company to Parent, by wire transfer of same day funds. Upon funds to an account designated by Parent in writing; provided, however, that in the payment of event the Termination Fee termination is pursuant to Section 5.4(d) as provided above and the Expensesbreach giving rise to such termination is demonstrated by the Company to be inadvertent, the Company shall have no further liabilities or obligations under this Section 8.5(b)not be required to pay the Expenses within the two business day period, but shall pay the full amount of the Fee in the event that the events set forth in clause (B) occur. The Company acknowledges that the agreements contained in this Section 8.5(b5.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b5.5(b), and, in order to obtain such payment, Cingular Parent commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b5.5(b) or any portion of such fee, the Company shall pay to Cingular Parent its costs and expenses (including attorneys' ’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Amalgamation (Intelsat LTD)
Effect of Termination and Abandonment. (a) In the event of EVT shall pay Guidant a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 7 million, which amount shall be payable by wire transfer of same day funds. Upon , within two business days after such amount becomes due, upon the payment occurrence of any of the Termination Fee following events:
(i) EVT or Guidant terminates this Agreement pursuant to clause (b) of Section 7.2 and the Expensesprior to such termination, the Company (x) a proposal with respect to a Transaction shall have no further liabilities been made, and (y) within one year after such termination, (A) any third party shall acquire beneficial ownership of more than 50% of EVT's outstanding shares of voting stock, or obligations under (B) EVT shall enter into any agreement with respect to any Transaction, and within such one year period or thereafter, such Transaction is consummated;
(ii) Guidant terminates this Agreement pursuant to clause (a) of Section 8.5(b)7.4;
(iii) EVT terminates this Agreement pursuant to clause (a) of Section 7.3. The Company EVT acknowledges that the agreements contained in this Section 8.5(b7.5(a) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Cingular Guidant and Merger Sub would not enter into this Agreement; accordingly, if the Company EVT fails to promptly pay the amount due pursuant to this Section 8.5(b7.5(a), and, in order to obtain such payment, Cingular Guidant or Merger Sub commences a suit that which results in a judgment against EVT for the Company for full amount of the fee set forth in this Section 8.5(b) or any portion of such fee7.5(a), the Company EVT shall pay to Cingular Guidant its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on 12% per annum from the date such payment fee was required to be made from paid.
(b) In the date such payment was required event of termination of this Agreement and the abandonment of the Merger pursuant to be made through this Article 7, all obligations of the date parties hereto shall terminate, except the obligations of payment.the parties set forth in this Section 7.5 and Section 5.10 and except for
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE X, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, --------- directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, that, party to this Agreement except as otherwise provided hereinin SECTION 10.5(b), no such termination shall SECTION -------------- ------- 8.10, SECTION 11.6 and SECTION 11.7 below, and except that nothing herein will ---- ------------ ------------ relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, any person shall have made an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal Corporation and thereafter this the Agreement is terminated by either Cingular or the Company party (other than pursuant to Section 8.2(b) or the breach of this Agreement by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (iAcquiror) then the Company shall Corporation, if requested by Acquiror, shall, subject to the provisions set forth below, promptly, but in no event later than two five (5) business days after the date of such terminationrequest, pay Acquiror a fee equal to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges all reasonable fees and expenses incurred by Acquiror in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions transaction contemplated by this Agreement up transaction as reflected upon an invoice prepared by Acquiror and delivered to a maximum amount of the Corporation, but in no event shall exceed $40,000,000 250,000; provided, that no fee shall be payable to Acquiror pursuant to this SECTION 10.5(b) unless and until (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (Ii) any Person person (other than Cingular or any of its AffiliatesAcquiror) (an --------------- "Acquiring Party") has entered into an a definitive agreement (X) toto acquire, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationotherwise, in one a transaction or any related a series of transactions, 40% or more a majority of the voting power of the outstanding securities of the Company, Corporation or ownership or control of 40% fifty percent (50%) or more of the consolidated assets of the Company or Corporation, (Yii) there has been executed a definitive agreement with respect to any a consolidation, merger or similar transaction or series of related transactions after between the Corporation and an Acquiring Party in which the stockholders of the Company Corporation immediately prior to the consummation of such proposed consolidation, merger or similar transaction or transactions would cease to do not own directly or indirectly securities representing at least 60% fifty percent (50%) of the outstanding voting power of the outstanding securities surviving entity (or, if applicable, any entity in control of the Company (such Acquiring Party) of such proposed consolidation, merger or of another Person that directly or indirectly would own all or substantially all the assets of the Company) similar transaction immediately following such transaction in the same proportion as they owned prior to the consummation of such transactionthereof, or (IIiii) there has been consummated an Acquiring Party, or any "group" (as such term is defined under Section 13(d) of the Exchange Act) acquires beneficial ownership or the right to acquire beneficial ownership of fifty percent (50%) of the common stock of the Corporation, whether by tender offer, exchange offer or otherwise (any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person described in clauses (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 i) through (One Billion Four Hundred Million Dollarsiii) (the being a "Termination FeeBusiness Combination") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company Corporation acknowledges that the agreements contained in this Section 8.5(bSECTION 10.5(b) are an integral part of the transactions contemplated by in -------------- this Agreement, and that, without these agreements, Cingular Acquiror and Merger Sub would not enter into this Agreement; accordingly, if the Company Corporation fails to promptly pay the amount due pursuant to this Section 8.5(bSECTION 10.5(b), and, in order to -------------- obtain such payment, Cingular Acquiror or Merger Sub commences a suit that which results in a judgment against the Company Corporation for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company non-prevailing party shall pay to Cingular the prevailing party its costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. Banque Paribas in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.16.6, Section 6.10, this Section 8.5 and Article IX each of which shall survive the termination of this Agreement) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, (i) no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
, and (bii) In notwithstanding the terms of Section 6.6, in the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular the Parent Parties pursuant to Sections 8.4(b) or (c) (except in the case of a breach where the Company is required to pay a Termination Fee as provided in Section 8.5(b)(y)(iii) below or in the case of a breach of a representation or warranty as a result of events or developments after the date hereof outside of the Company's control) or by the Company pursuant to Section 8.2(b8.3(b) (except in the case of a breach of a representation or by Cingular pursuant to Section 8.4(a) warranty as a result of events or Section 8.4(cdevelopments after the date hereof outside of the Parent Parties' or Merger Sub's control), the non-terminating party shall reimburse the terminating party for all of its costs and expenses (iincluding legal, consulting and accounting fees and disbursements and the costs and expenses incurred in connection with printing and mailing the Proxy Statement (and any amendment or supplement thereto) then and the Company costs of filing under the Hart-Scott Act) incurred by ▇▇▇ ▇▇rminating party in connection with this Agreement. The non-terminating party shall promptly, but in no event later than two business days after the date it receives notice from the terminating party setting forth the amount of such terminationcosts and expenses, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum such amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into to an agreement (X) to, directly or indirectly, acquire account designated by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentterminating party.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability (other than as set forth in Section 8.6(b) or 8.6(c), or in the proviso at the end of this sentence) on the part of any party hereto (to this Agreement or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of to this Agreement from any liability or for damages resulting from any willful or intentional breach of this Agreement.
(b) In Metrocall and its Subsidiaries (jointly and severally) shall pay Weblink a termination fee equal to $12,000,000 plus actual documented out-of-pocket expenses incurred by Weblink (collectively, the "Weblink Termination Fee"), payable by wire transfer of same day funds in the event that after the date hereof, that:
(i) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, to Metrocall or have been made directly to Metrocall's interest holders or creditors generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal and thereafter this Agreement is terminated by either Cingular or the Company Metrocall pursuant to Section 8.2(b8.5(b);
(ii) this Agreement is terminated pursuant to Section 8.2 by virtue of the confirmation of a plan of reorganization other than the Metrocall Prearranged Plan in the Metrocall Bankruptcy Cases, except in the case where such a plan is confirmed following (A) a material breach by Weblink of this Agreement or (B) the failure of any of the conditions in Sections 7.1(a) or (b) (provided that no Termination Fee shall be payable under this clause (ii) if neither the Metrocall Prearranged Plan nor the Weblink Prearranged Plan is confirmed); or
(iii) this Agreement is terminated by Cingular Weblink pursuant to Section 8.4(e);
(iv) (1) this Agreement is terminated by Weblink pursuant to Section 8.4(a) or Section ), 8.4(c), 8.4(d), 8.4(f), 8.4(g), 8.4(h), 8.4(i) or 8.4(m), provided that, with respect to Section , it is terminated solely with respect to a breach of Section 6.1, 6.2, or 6.15, and (i2) then after the Company date of this Agreement and prior to the date that is one year after the date of termination (x) the Metrocall Bankruptcy Court enters an order either confirming a plan of reorganization for Metrocall or authorizing the sale of all or any substantial portion of Metrocall's and its Subsidiaries' assets pursuant to Section 363 of the Bankruptcy Code, or (y) the non-debtor Subsidiaries of Metrocall (if any) sell, convey or transfer (whether by asset sale, stock sale or merger) all or any substantial portion of their assets. A Weblink Termination Fee payable pursuant to Section 8.6(b)(ii) or 8.6(b)(iii) shall promptly, but in be paid no event later than two business days after the date of such termination, pay ; a Weblink Termination Fee payable pursuant to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses"Section 8.6(b)(iv) payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in shall be paid no event later than two business days after such event, pay SBC the second to occur of (x) the termination pursuant to 8.6(b)(iv)(1) or (y) the event described in 8.6(b)(iv)(2); and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the a Weblink Termination Fee payable pursuant to Section 8.6(b)(i) shall be paid simultaneously with (and the Expenses, the Company such payment shall have no further liabilities or obligations under this be a condition of) termination pursuant to Section 8.5(b8.4(b). The Company Metrocall acknowledges that the agreements contained in this Section 8.5(b8.6(b) are an integral part of the transactions contemplated by this Agreement.
(c) Weblink and its Subsidiaries (jointly and severally) shall pay Metrocall a termination fee equal to $12,000,000 plus actual documented out-of-pocket expenses incurred by Metrocall (collectively, the "Metrocall Termination Fee"), payable by wire transfer of same day funds in the event that:
(i) an Acquisition Proposal shall have been made to Weblink or have been made directly to Weblink's interest holders or creditors generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter this Agreement is terminated by either Weblink or Metrocall pursuant to Section 8.4(b);
(ii) this Agreement is terminated pursuant to Section 8.2 by virtue of the confirmation of a plan of reorganization other than the Weblink Prearranged Plan in the Weblink Bankruptcy Cases , except in the case where such a plan is confirmed following (A) a material breach by Metrocall of this Agreement or (B) the failure of any of the conditions in Sections 7.1(a) or (b) (provided that no Termination Fee shall be payable under this clause (ii) if neither the Metrocall Prearranged Plan nor the Weblink Prearranged Plan is confirmed); or
(iii) this Agreement is terminated by Metrocall pursuant to Section 8.5(e); or
(iv) (1) this Agreement is terminated by Metrocall pursuant to Section 8.5(a), 8.5(c), 8.5(d), 8.5(f), 8.5(g), 8.5(h), 8.5(i) or 8.5(n), provided that, with respect to Section 8.5(c), it is terminated solely with respect to a breach of Section 6.1, 6.2 or 6.15, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if (2) thereafter (x) the Company fails to promptly pay Weblink Bankruptcy Court enters an order either confirming a plan of reorganization for Weblink or authorizing the amount due sale of all or any substantial portion of Weblink's and its Subsidiaries' assets pursuant to this Section 8.5(b363 of the Bankruptcy Code, or (y) the non-debtor subsidiaries of Weblink (if any) sell, convey or transfer (whether by asset sale, stock sale or merger) all or any substantial portion of their assets. A Metrocall Termination Fee payable pursuant to Section 8.6(c)(ii) or 8.6(c)(iii) shall be paid no later than two days after the date of termination; a Weblink Termination Fee payable pursuant to Section 8.6(c)(iv) shall be paid no later than two days after the second to occur of (x) the termination pursuant to 8.6(c)(iv)(1) or (y) the event described in 8.6(c)(iv)(2), and, in order ; and a Metrocall Termination Fee payable pursuant to obtain Section 8.6(c)(i) shall be paid simultaneously with (and such payment, Cingular commences payment shall be a suit condition of) termination pursuant to Section 8.6(c). Weblink acknowledges that results in a judgment against the Company for the fee set forth agreements contained in this Section 8.5(b8.6(c) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount are an integral part of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymenttransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Restructuring and Section 303 Agreement (Weblink Wireless Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger and the other transactions contemplated hereby pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its trustees, directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional wilful breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereofa) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company Westin Companies pursuant to Section 8.2(b8.3, (b) or by Cingular the condition set forth in Section 7.1(a) shall not have been satisfied and this Agreement shall have been terminated pursuant to Section 8.4(a8.2, (c) or the Starwood Companies shall have failed to satisfy any of the conditions set forth in Section 8.4(c7.3(a), (ib), (c)(i), (c)(ii), (d), (e) or (g) on or prior to the Closing Date and the Westin Companies shall, by written notice delivered to Starwood Trust, elect not to consummate the transactions contemplated hereby as a result of such failure or (d) the Starwood Companies otherwise fail to consummate the transactions contemplated by this Agreement, then the Company Starwood Companies shall promptly, but in no event later than two five business days after the date of such terminationevent, pay to Cingular on behalf the Westin Companies a termination fee of it$5,000,000 and shall promptly, SBC and BellSouth and their respective Affiliates incurring charges and expenses but in connection with this Agreement and no event later than five business days after the transactions contemplated hereby date of such event, pay all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates the Westin Companies and the Members in connection with this Agreement and the transactions contemplated by this Agreement up in an amount not to a maximum amount of exceed $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination5,000,000, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") each case payable by wire transfer of same day funds. Upon ; provided, however, that no such payment shall be required in the payment event that (i) the Westin Companies shall have failed, after the expiration of 30 days after receipt by the Westin Companies of written notice of such failure during which the Westin Companies shall have the opportunity to cure any such failure, provided, that such cure period shall not extend beyond January 2, 1998 unless the parties shall have agreed to extend the Closing Date to a date that is later than January 2, 1998 to satisfy any condition specified in Section 7.2 that is required to be satisfied by the Westin Companies prior to the Closing Date, (ii) the Starwood Companies elect not to consummate the transactions as a result of the Termination Fee failure of the satisfaction of the condition specified in Section 7.1(b) or (c) or 7.2(a), (b), (c)(iii), (d), (f), (g), (i), (j), (k) or (l) or Section 9.14 or (iii) the Starwood Companies fail to deliver the opinions of Sidley & Austin required to be delivered by Section 7.3(c)(i) or (ii), and the Expenses, sole cause of such failure is a change in the Company shall have no further liabilities factual circumstances of the Westin Companies occurring after the date hereof that causes one or obligations under this Section 8.5(b)more explicit assumptions contained in the opinion attached hereto as Annex E-1 to be untrue as of the Closing Date. The Company acknowledges Starwood Companies' payment shall be the sole and exclusive remedy of the Westin Companies against the Starwood Companies and any of their Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives with respect to the breach of any covenant or agreement giving rise to such payment. The Starwood Companies acknowledge that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Cingular the Westin Companies would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.. 52 56 ARTICLE IX
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event that this Agreement is terminated (i) pursuant to Section 8.2(a) or 8.4(a) (and such breach shall have been an intentional breach of a covenant) at any time Table of Contents when an Alternative Proposal shall have been publicly announced or otherwise communicated to the Company’s Board of Directors and not withdrawn prior to the date of such termination and within nine (9) months from the date of any such foregoing termination, the Company enters into a definitive agreement with any third party with respect to an Alternative Proposal or any such transaction is consummated or (ii) pursuant to Section 8.3(b) or 8.4(b), then, in each such case, the Company shall, upon termination of this Agreement and (or in the abandonment case of the Merger termination pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), clause (i) then of this Section 8.5(a), upon the Company shall promptly, but in no event later than two business days after earlier to occur of the date execution of such terminationdefinitive agreement and such consummation) pay Buyer a non-refundable fee, pay by wire transfer of immediately available funds to Cingular on behalf an account designated by Buyer, in an amount equal to (A) $16,000,000 plus (B) all of it, SBC and BellSouth and their respective Affiliates incurring charges Buyer’s actual out-of-pocket costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby all consummation and negotiation of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum hereby, including, but not limited to, legal, professional and service fees and expenses (the “Transaction Expenses”); provided, however, that the aggregate reimbursement amount of all Transaction Expenses shall not exceed $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)2,500,000. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b8.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular the other party would not enter into this Agreement.
(b) In the event of termination of this Agreement and the abandonment of the Offer and the Merger pursuant to this Article VIII, all obligations of the parties hereto shall terminate, except no such termination shall relieve any party hereto of any liability or damages resulting from any intentional breach of this Agreement; accordingly, if provided that the Company fails to promptly pay obligations of the amount due parties pursuant to this Section 8.5(b8.5 and the provisions of Sections 6.6 (Publicity), and6.9 (Expenses), in order to obtain such payment6.12 (Standstill Agreements), Cingular commences a suit that results in a judgment against 9.2 (Notices), 9.3 (Assignment, Binding Effect), 9.6 (Governing Law) and 9.13 (Enforcement of Agreement), which obligations shall survive the Company for the fee set forth in termination of this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentAgreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to by Parent or Company, as provided in this Article VIII, this Agreement (other than as set forth in Section 9.1below) shall forthwith become void and of no effect with there shall be no liability hereunder on the part of any party hereto the Company, Parent, or Purchaser or their respective officers or directors (or of any of its directorsexcept that Sections 6.01(b), officers8.05, employees9.03, agents, legal 9.09 and financial advisors or other representatives9.10 shall survive the termination); provided, however, that, except as otherwise provided herein, no such termination that nothing contained in this Section 8.05 shall relieve any party hereto of from any liability or damages resulting from for any willful or intentional breach of this Agreement.
(b) In the event that after this Agreement is terminated (i) by the Company pursuant to Section 8.03(a) or (ii) by Parent pursuant to Section 8.04(a), then the Company shall (x) promptly, but in no event later than the earlier of the date hereof, of such termination or date of entrance into an agreement concerning an Acquisition Proposal or such earlier time as required by this Agreement, pay to Parent a termination fee of $20 million payable by wire transfer of same day funds and (but substituting 40% for the 15% threshold set forth y) in the definition thereof) (a "Covered Proposal") no event later than two business days after Parent shall have been publicly made orrequested payment of its charges and expenses incurred in connection with the transactions contemplated hereby, after pay to Parent the date hereofamount of such charges and expenses up to a maximum of $5 million payable by wire transfer of same day funds.
(c) In the event that this Agreement is terminated pursuant to Section 8.02(b), and at or prior to the time of the Company Meeting any Person other than Parent shall have made a public announcement of an Acquisition Proposal or shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal an Acquisition Proposal, and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date if within 12 months of such termination, the Company enters into an agreement with such Person concerning a transaction that constitutes an Acquisition Proposal, the Company shall (x) at the time of entering into such agreement, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and Parent the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount termination fee of $40,000,000 (the "Expenses") 20 million payable by wire transfer of same day funds and (iiy) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such eventParent shall have requested payment of its charges and expenses incurred in connection with the transactions contemplated hereby, pay SBC to Parent the amount of such charges and BellSouth in proportion expenses up to their Specified Interests an aggregate termination fee a maximum of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 5 million payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Pre Merger Agreement (Dynacare Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement that (other than as set forth in Section 9.1x) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") person shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Alternative Proposal and thereafter this Amended and Restated Agreement is terminated either by either Cingular or the Company pursuant to Section 8.2(b10.3(a) or by Cingular either party pursuant to Section 8.4(a) or Section 8.4(c10.2(b), (iy) the Board of Directors of the Company shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of this Amended and Restated Agreement or the Merger or shall have recommended an Alternative Proposal to the Company stockholders and Parent shall have terminated this Amended and Restated Agreement pursuant to Section 10.4(a) or (z) any person shall have made an Alternative Proposal and thereafter this Amended and Restated Agreement is terminated for any reason other than those set forth in clauses (x) or (y) above and within 12 months thereafter any Alternative Proposal shall have been consummated, then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Parent a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") 45,000,000, which amount shall be payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b10.5(a) are an integral part of the transactions contemplated by in this Amended and Restated Agreement, and that, without these agreements, Cingular Parent and Sub would not enter into this Amended and Restated Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b10.5(a), and, in order to obtain such payment, Cingular Parent or Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee10.5(a), the Company shall pay to Cingular Parent its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank12% per annum.
(b) In the event of termination of this Amended and Restated Agreement and the abandonment of the Merger pursuant to this Article X, N.A. in effect on all obligations of the date such payment was required parties hereto shall terminate, except the obligations of the parties pursuant to be made from this Section 10.5 and Section 11.3 and except for the date such payment was required to be made through the date provisions of payment.Sections 11.5, 11.6, 21
Appears in 1 contract
Sources: Agreement and Plan of Merger (Columbia Hca Healthcare Corp/)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in this Section 9.19.5, Section 5.2(b), Section 6.8 and Section 6.11, and Article X) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors advisors, or other representatives); provided, however, that, that except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In Notwithstanding the event that after the date hereofforegoing, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter if this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a9.3(b) or Section 8.4(c)9.4, (i) then the Company shall promptly, but promptly pay Parent a termination fee in no event later than two business days after the date amount of such termination, pay $2,500,000 (which amount is intended to Cingular on behalf cover all or any portion of it, SBC Parent’s and BellSouth and their respective its Affiliates incurring charges and expenses Expenses incurred in connection with this Agreement), as directed by Parent.
(c) Notwithstanding the foregoing, if this Agreement and is terminated pursuant to Section 9.3(a), Parent shall promptly pay the transactions contemplated hereby Company a termination fee in the amount of $2,500,000 (which amount is intended to cover all or any portion of the charges Company’s and expenses actually its Affiliates Expenses incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and Agreement), as directed by the transactions contemplated by Company.
(d) Notwithstanding the foregoing, if (i) during the term of this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) ifAgreement, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) toParent, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to unreasonably delayed the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, (ii) this Agreement is terminated pursuant to Section 9.3(a), and that, without these agreements, Cingular would not enter into (iii) prior to the 30-day anniversary of the date of termination of this Agreement; accordingly, if Parent or any of its Affiliates (including, but not limited to L-1 Investment Partners LLC and its Affiliates) enters into a binding definitive agreement pursuant to which it shall purchase or otherwise acquire control of, or at least a majority of the Company fails to beneficial interest (whether in the form of convertible securities or otherwise) in the outstanding capital stock or assets of Iridian, Parent shall promptly pay the amount due pursuant to this Section 8.5(b)Company a fee of $2,500,000, and, in order to obtain such payment, Cingular commences a suit that results in a judgment against as directed by the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentCompany.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger Amalgamation pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives) except for the obligations of the parties hereto contained in this Section 8.5 and in Sections 6.11 (Expenses) and 9.6 (Notices); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(ba) In the event that after the date hereof, (i) an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered an Acquisition Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b8.2(b)(i) or Section 8.2(b)(ii), or (ii) this Agreement is terminated (A) by Cingular the Company pursuant to Section 8.3(a) or (B) by Parent pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such terminationtermination or such earlier time as required by this Agreement, pay Parent a termination fee of $15,000,000 (the "Termination Fee") and shall promptly, but in no event later than two days after being notified of such by Parent, pay to Cingular on behalf Parent an amount equal to all of it, SBC and BellSouth and their respective Affiliates incurring the reasonably documented charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Amalgamation Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") Agreement, in each case payable by wire transfer of same day funds and ("Expenses").
(b) In the event this Agreement is terminated (i) by the Company pursuant to Section 8.2(b)(i) or Section 8.2(b)(ii), or (ii) ifby Parent pursuant to Section 8.2(b)(i), Section 8.2(b)(ii) or 8.4(c) and no fee is otherwise payable to Parent pursuant to paragraph (a) above, then, if within 15 18 months after of such termination (I) any Person (other than Cingular or any of its Affiliates) has entered termination, the Company enters into an agreement (X) toconcerning a transaction that constitutes an Acquisition Proposal, directly or indirectlythe Company at the time of entering into such agreement, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationshall pay to Parent the Termination Fee plus Expenses, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") each case payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). .
(c) The Company acknowledges that the agreements contained in this Section Sections 8.5(b) and (c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Amalgamation Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this either Section 8.5(b) or (c), and, in order to obtain such payment, Cingular Parent or Amalgamation Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, therein the Company shall pay to Cingular Parent or Amalgamation Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the fee amounts owed at the prime rate of Citibank, N.A. Chase Manhattan Bank in effect on the date from time to time during such payment was required to be made from the date such payment was required to be made through the date of paymentperiod plus two percent.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any liability or further obligation to any other party hereunder except (other than i) as set forth in this Section 9.18.02 and Section 9.01 and (ii) shall become void and of no effect with no that termination will not relieve a breaching party from liability on the part for any willful breach of any party hereto (covenant, agreement, representation or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach warranty of this AgreementAgreement giving rise to such termination.
(b) In recognition of the event efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the parties hereto agree that after the date hereof, an Acquisition Proposal Company shall pay to Parent a termination fee of $2.5 million (but substituting 40% for the 15% threshold “Termination Fee”) in the manner set forth in the definition thereofbelow if:
(i) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by Parent pursuant to Section 8.01(g); or
(ii) (A) this Agreement is terminated by (1) Parent pursuant to Section 8.01(d) or (2) by either Cingular Parent or the Company pursuant to Section 8.2(b8.01(c) and in the case of any termination pursuant to clause (1) or by Cingular pursuant (2) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to Section 8.4(a) or Section 8.4(c), (i) then the senior management of the Company or the Company Board (or any Person shall promptlyhave publicly announced, but in no event later than two business days communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and prior to the transactions contemplated hereby all taking of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and vote of the transactions shareholders of the Company contemplated by this Agreement up at the Company Meeting, in the case of clause (2), or the date of termination of this Agreement, in the case of clause (1), and (B) within eighteen (18) months after such termination of this Agreement, the Company or a Subsidiary of the Company enters into any agreement with respect to, or consummates, an Acquisition Transaction, provided that if the date of execution of such agreement is after twelve (12) months but within eighteen (18) months after such termination of this Agreement, the Termination Fee shall be payable by the Company to a maximum Parent upon consummation of the Acquisition Transaction which is the subject of such agreement, regardless of whether such consummation occurs within eighteen (18) months after termination of this Agreement or thereafter. Any amount of $40,000,000 (the "Expenses"that becomes payable pursuant to this Section 8.02(b) payable shall be paid by wire transfer of same day immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (iib) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are 8.02 is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreement Parent would not enter have entered into this Agreement; accordingly, if Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay Parent the amount amounts due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against under paragraph (b) above within the Company for the fee set forth in this Section 8.5(b) or any portion of such feetime periods specified therein, the Company shall pay to Cingular its the costs and expenses (including attorneys' feesreasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibankprevailing during such period as published in The Wall Street Journal, N.A. in effect calculated on the date such payment was required to be made a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) Termination of this Agreement pursuant to any of Sections 9.2, 9.4 or 9.4 shall be effected by written notice by the terminating Party to the other Parties hereto. In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Agreement, except for the provisions of this Section 9.1) shall 9.5 and Sections 11.1, 11.2, 11.3, 11.4, 11.5, 11.6, 11.7, 11.9, 11.10 and 11.13, will become null and void and of have no effect with no further force or effect, without any liability on the part of any Party; provided, however, that nothing in this Article IX will relieve any Party of liability for any breach of this Agreement occurring prior to that termination.
(b) Upon any termination of this Agreement prior to the Interest Acquisition Date (other than pursuant to Section 9.3(a)), the Globalstar Entities shall reimburse Thermo for all legal, accounting and other documented out-of-pocket or third-party hereto expenses (excluding financial advisory fees, if any) incurred in connection with this Agreement or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesthe Contemplated Transactions (the "Expense Reimbursement"); provided, however, that, except that the Globalstar Entities shall not be obligated to pay any portion of the Expense Reimbursement out of the Wind Down Funds (as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreementdefined in the DIP Loan).
(bc) In the event that after the date hereofaddition, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter if this Agreement is terminated by either Cingular or the Company for any reason (other than pursuant to Section 8.2(b9.3(a)) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c)and the Globalstar Entities later seek Bankruptcy Court approval of any transaction involving a sale of the Globalstar Entities' business as a going concern in a transaction that the Bankruptcy Court determines is a higher and better offer than the Contemplated Transactions, (i) then promptly after such determination the Company Globalstar Entities shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement Thermo a break-up to a maximum amount fee of $40,000,000 1,900,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Break-Up Fee").
(d) payable by wire transfer Promptly following any termination of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, all filings, applications, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due other submissions made pursuant to this Section 8.5(b)the Contemplated Transactions shall, andto the extent practicable, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made withdrawn from the date such payment was required Governmental Entity or other Person to be made through the date of paymentwhich made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE VII, this Agreement (other than as set forth in Section 9.1this SECTION 7.2 and in SECTION 7.3, SECTION 8.1, SECTION 8.7, SECTION 8.11 and SECTION 8.14) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); providedPROVIDED, howeverHOWEVER, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or damages resulting from for any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) EDI desires to make a Covered Proposal and thereafter terminate this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or SECTION 7.1(g), then EDI shall first pay Bowm▇▇ ▇ ▇ee equal to $500,000 (the "TERMINATION FEE"), payable by Cingular wire transfer of same day funds. In the event that Bowm▇▇ ▇▇▇minates this Agreement pursuant to Section 8.4(a) or Section 8.4(cSECTION 7.1(e), (i) then the Company EDI shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of itBowm▇▇ ▇▇▇ Termination fee, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon Notwithstanding anything herein to the payment of contrary, in no event shall EDI be required to pay the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)fee to Bowm▇▇ ▇▇▇e than once. The Company EDI acknowledges that the agreements contained in this Section 8.5(bSECTION 7.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would Bowm▇▇ ▇▇▇ld not enter into this Agreement; accordingly, if the Company EDI fails to promptly pay the amount due pursuant to this Section 8.5(bSECTION 7.2(b), and, in order to obtain such payment, Cingular commences Bowm▇▇ ▇▇▇mences a suit that which results in a judgment against the Company EDI for the fee Termination Fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company EDI shall also pay to Cingular its Bowm▇▇ ▇▇▇ costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank, Citibank N.A. in effect on the date such payment was required to be made from made.
(c) In the date such payment was required event that Bowm▇▇ ▇▇▇ires to be made through terminate this Agreement pursuant to SECTION 7.1(d), then Bowm▇▇ ▇▇▇ll first pay EDI the Termination Fee, payable by wire transfer of same day funds. In the event that EDI terminates this Agreement pursuant to SECTION 7.1(h), then Bowm▇▇ ▇▇▇ll promptly, but in no event later than two business days after the date of payment.such termination, pay EDI the Termination Fee, payable by wire transfer of same day funds. Notwithstanding anything herein to the contrary, in no event shall Bowm▇▇ ▇▇ required to pay the Termination Fee to EDI more than once. Bowm▇▇ ▇▇▇nowledges that the agreements contained in this SECTION 7.2(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, EDI would not enter into this Agreement; accordingly, if Bowm▇▇ ▇▇▇ls to promptly pay the amount due pursuant to this
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an (i) a Company Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to the date hereof, Company or any of its Subsidiaries or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Company Acquisition Proposal and thereafter this Agreement is terminated by either Cingular Parent or the Company pursuant to Section 8.2(b8.2(ii) or (ii) this Agreement is terminated by Cingular Parent pursuant to Section 8.4(a) or Section 8.4(c), (i8.4(i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf Parent a termination fee of it$55,000,000 and shall promptly, SBC and BellSouth and their respective Affiliates incurring charges and expenses but in connection with this Agreement and the transactions contemplated hereby no event later than two days after being notified of such by Parent, pay all of the charges and expenses actually expenses, including those of the Exchange Agent, incurred by Cingular, SBC, BellSouth Parent or their respective Affiliates Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") 15,000,000, in each case payable by wire transfer of same day funds and funds; provided, however, that in the event of a termination pursuant to Section 8.2(ii) under the circumstances set forth in clause (iii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Companythis Section 8.5(b), or ownership or control of 40% or more of the consolidated assets of a termination pursuant to Section 8.4(a)(i), the Company or shall (Ya) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such eventpromptly, but in no event later than two business days after being notified of such eventby Parent, pay SBC all of the charges and BellSouth expenses incurred by Parent in proportion connection with this Agreement and the transactions contemplated by this Agreement up to their Specified Interests an aggregate a maximum amount of $15,000,000, and, (b) if the Company enters into a definitive agreement to consummate or consummates a Company Acquisition Proposal within 12 months from the date of such termination, at the time of the entering into of such agreement or such consummation, as applicable, pay Parent a termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)55,000,000. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular Parent or Merger Sub commences a suit that which results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such feeparagraph (b), the Company shall pay to Cingular Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Sources: Agreement and Plan of Merger (MCN Energy Group Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the TFC Merger pursuant to this Article VIII, this Agreement shall become void and of no effect (other than as set forth in Section 9.19.01) shall become void and of no effect with no liability or further obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates); provided, however, that, except as otherwise provided hereinin this Section 8.02; provided that, and notwithstanding anything in the foregoing to the contrary, (i) no such termination shall relieve any party hereto of any liability or damages to the other parties hereto resulting from any willful or intentional material breach of this Agreement, and (ii) the provisions set forth in Section 9.01 shall survive termination of this Agreement and termination shall not relieve any party of any liability under such provisions.
(b) In the event that after the date hereof, an (i) a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after to TFC or the date hereof, Bank or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to TFC or the Bank (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (x) 30 calendar days prior to, with respect to any termination pursuant to Section 8.01(c) or Section 8.01(d), the date of termination, or (y) at least 10 Business Days prior to, with respect to a Covered Proposal termination pursuant to Section 8.01(f), the date of the Special Meeting); and thereafter this Agreement is terminated by either Cingular RBB Bancorp and RBB or TFC and the Company Bank pursuant to Section 8.2(b8.01(d), or (ii) or this Agreement is terminated (x) by Cingular TFC and the Bank pursuant to Section 8.4(a8.01(g) or (y) by RBB Bancorp and RBB pursuant to Sections 8.01(b), (c), (f) or (h), then TFC or the Bank shall promptly, and in any event no later than two Business Days after the date of such termination (except as provided in Section 8.01(g)(iv)), pay RBB Bancorp a termination fee of $500,000 (the “Termination Fee”), payable by wire transfer of same-day funds. TFC’s or the Bank’s payment shall be the sole and exclusive remedy of RBB Bancorp and RBB for damages against TFC and the Bank and their respective Representatives with respect to the breach of any covenant or agreement giving rise to such payment. For purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, TFC or the Bank shall have entered into a definitive agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved or recommended to TFC’s shareholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its affiliates. In addition, for purposes of this Agreement, and subject to proviso (i) of Section 8.02(a), no damages will be payable by RBB Bancorp if it terminates this Agreement for failure to obtain regulatory approval pursuant to Section 7.01(b) or Section 8.4(c8.01(e). In the event this Agreement is terminated by TFC and the Bank pursuant to Section 8.01(b), (i) then the Company RBB Bancorp shall promptly, but and in any event no event later than two business days Business Days after the date of such termination, pay to Cingular on behalf of itTFC the Termination Fee, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same same-day funds funds. RBB’s payment shall be the sole and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any exclusive remedy of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of TFC and the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) Bank for damages against RBB and their respective Representatives with respect to the breach of any transaction covenant or series of related transactions after which stockholders agreement giving rise to such payment. Further, in the event this Agreement is terminated by RBB Bancorp other than for the reasons in Section 8.02(b), RBB shall pay TFC or the Bank the difference between the amount of the Company immediately prior actual lease entered into by the Bank and a long term lease of up to 5 years in length concerning the consummation Bank’s City of such transaction Industry branch. If TFC or transactions would cease to own directly or indirectly at least 60% the Bank enters into a long term lease for the City of the voting power of the outstanding securities of the Company Industry branch for longer than six (or of another Person that directly or indirectly would own all or substantially all the assets of the Company6) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates)months, then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (Merger Consideration shall be reduced by the "Termination Fee") payable by wire transfer of same day funds. Upon difference between the payment actual cost of the Termination Fee lease minus the costs of the short term lease of up to six (6) months. Each of TFC and the ExpensesBank, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges and RBB Bancorp and RBB, acknowledge that the agreements agreement contained in this Section 8.5(b8.02(b) are is an integral part of the transactions contemplated by this AgreementAgreement and that without the agreement, RBB Bancorp, RBB, TFC and that, without these agreements, Cingular the Bank would not enter into this Agreement; accordingly, if (i) TFC or the Company Bank fails to promptly pay the amount due Termination Fee pursuant to this Section 8.5(b8.02(b), and, in order to obtain such paymentpayment of the Termination Fee, Cingular commences RBB Bancorp and RBB commence a suit that results in a judgment against TFC or the Company Bank for the fee set forth in this Section 8.5(b) Termination Fee or any portion of such feethereof, TFC or the Company Bank shall pay to Cingular its RBB Bancorp and RBB their costs and expenses (including attorneys' fees’ fees and expenses) in connection with such suit, together with interest on the amount of the such fee at the publicly announced prime rate of Citibank, N.A. interest published in effect The Wall Street Journal on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Merger Agreement (RBB Bancorp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, however, thatparty to this Agreement, except as otherwise provided hereinin Section 5.11 and this Section 10.05, no such termination and except that nothing herein shall relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal of (but substituting 40% for the 15% threshold set forth in the definition thereofi) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter termination of this Agreement is terminated by Beve▇▇▇ ▇▇▇suant to Section 10.01(b), or (c) or by either Cingular or the Company party hereto pursuant to Section 8.2(b10.01(d) and if prior thereto any person shall have made a bona fide proposal concerning a Pharmacy Acquisition Transaction or a Beve▇▇▇ ▇▇▇iness Combination Transaction or (ii) any termination of this Agreement by Cingular Capstone pursuant to Section 8.4(a) or Section 8.4(c10.02(a), (ib), (c) or (d) or (iii) any termination of this Agreement by Beve▇▇▇ ▇▇▇suant to Section 10.03(e), then the Company shall promptly, but in no event later than two business days after the date Beve▇▇▇ ▇▇▇ll promptly pay Capstone by wire transfer of such termination, pay immediately available funds to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges an account specified by Capstone up to $2,000,000 for all documented fees and expenses incurred by Capstone (including the fees and expenses of counsel, accountants, consultants and advisors) in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "ExpensesBeve▇▇▇ ▇▇▇ense Payments") payable ). In the event of a termination of this Agreement by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect Beve▇▇▇ ▇▇▇suant to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 10.03(e), then the Company shall, promptly following such event, but in no event later than two business days after such event, Beve▇▇▇ ▇▇▇ll be obligated to pay SBC and BellSouth in proportion to their Specified Interests Capstone an aggregate termination additional fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) 35,000,000 (the "Termination FeeBeve▇▇▇ ▇▇▇mination Payment") ), payable by wire transfer in immediately available funds prior to and as a condition of same day funds. Upon such termination and entering into the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions transaction contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses definitive agreement (including attorneys' fees) in connection with such suit, together with interest on the amount of such payments and the fee at manner specified herein for making such payments being collectively called the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment."Beve▇▇▇ ▇▇▇ments"
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event that (i) any person shall have made an Alternative Proposal with respect to the Company and thereafter this Agreement is terminated by either party pursuant to Section 10.2(b) and within 12 months thereafter such Alternative Proposal with respect to the Company shall have been consummated, (ii) the Board of Directors of the Company shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation to the Company's stockholders by reason of an Alternative Proposal with respect to the Company and Parent shall have terminated this Agreement pursuant to Section 10.4(a) and within 12 months thereafter any Alternative Proposal with respect to the Company shall have been consummated, (iii) the Board of Directors of the Company shall have recommended an Alternative Proposal with respect to the Company to the Company's stockholders and Parent shall have terminated this Agreement pursuant to Section 10.4(a) and within 12 months thereafter any Alternative Proposal with respect to the Company shall have been consummated, or (iv) the Company shall have terminated this Agreement pursuant to Section 10.4(b) and within 12 months thereafter any Alternative Proposal with respect to the Company shall have been consummated, then, in any such case, the Company shall in no event later than the date of consummation of such Alternative Proposal pay Parent a fee of Three Million and 00/100 Dollars ($3,000,000.00) (a "Termination Fee ), which amount shall be payable by wire transfer of same day funds. For purposes of clause (a) above, no Termination Fee shall be payable unless such Alternative Proposal is superior from a financial point of view to the Merger. The Company acknowledges that the agreements contained in this Section are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Parent and Sub would not enter into this Agreement. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section, and, in order to obtain such payment, Parent or Sub commences a suit which results in a judgment against the Company for the fee and expenses set forth in this Section, the Company shall pay to Parent its costs and expenses (including attorneys fees) in connection with such suit.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section, Section 8.11 and Section 11.3 and except for the provisions of the Confidentiality Agreement referred to in Section 8.1 and the provisions of Section 11.1. Moreover, in the event of termination of this Agreement pursuant to Section 10.2 (other than as set forth in a) or Section 9.1) 10.3, nothing herein shall become void prejudice the ability of the non-breaching party from seeking its costs and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal expenses and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional other party for any breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made orincluding without limitation, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement attorneys' fees and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth right to pursue any remedy at law or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentequity.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement (other than as set forth in Section 9.1Sections 7.2, 8.1, 8.3, 8.5, 8.6, 8.7, 8.8, 8.11, 8.12, 8.13, 8.14 and 8.15 hereof) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); providedPROVIDED, howeverHOWEVER, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or damages resulting from for any willful or intentional breach of this Agreement prior to termination. If this Agreement is terminated as provided herein, each party shall hold in confidence in accordance with the terms and conditions of the Confidentiality Agreement all materials obtained from, or based on or otherwise reflecting or generated in whole or in part from information obtained from, any other party hereto in connection with the transactions contemplated by this Agreement, and shall not use any such materials for the purpose of competing with the businesses of the other parties hereto, whether obtained before or after the execution hereof.
(b) In the event that after the date hereof, an Acquisition (A) a Takeover Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after known to the date hereof, Company or has been made directly to its stockholders generally or any Person person shall have publicly announced an intention (whether or not conditional) to make a Covered Takeover Proposal and thereafter this Agreement is terminated by either Cingular the Company or Parent pursuant to 7.1(j) hereof or by the Company pursuant to Section 8.2(b7.1(m) hereof or (B) this Agreement is terminated (x) by Cingular the Company pursuant to Section 8.4(a7.1(h) hereof, (y) by Parent pursuant to Section 7.1(d), 7.1(i) or 7.1(k) hereof or (z) Parent pursuant to Section 8.4(c)7.1(c) hereof, (i) then the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent a fee equal to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) 300,000 (the "Termination Fee") ), payable by wire transfer of same day funds. Upon the payment of the ; PROVIDED, HOWEVER, that no Termination Fee shall be payable to Parent pursuant to a termination by the Company pursuant to Section 7.1(j) or Section 7.1(m) hereof unless and the Expensesuntil within nine months of such termination, the Company shall have no further liabilities or obligations under any of the Company Subsidiaries enters into a definitive agreement providing for any Takeover Proposal with the person or persons or any of their respective affiliates which proposed a Takeover Proposal prior to the termination of this Section 8.5(b)Agreement. The Company acknowledges that the agreements contained in this Section 8.5(b7.2(b) are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Cingular Parent would not enter into this Agreement; accordingly, if . In the Company fails to promptly pay event the amount due Termination Fee becomes payable pursuant to this Section 8.5(b7.2(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall promptly pay to Cingular its costs upon Parent's request all reasonable out-of-pocket charges and expenses (including attorneys' fees) incurred by Parent in connection with such suitthis Agreement, together with interest on the amount Common Shareholders Agreements and the Preferred Purchase Agreement and the transactions contemplated hereby and thereby not to exceed $50,000 (the "Parent Expenses"), which payments shall be in addition to the Termination Fee. Notwithstanding the foregoing, the fee or expense reimbursement contemplated hereby shall be paid pursuant to this Section 7.2(b) regardless of any alleged breach by Parent of its obligations hereunder, PROVIDED that no payment by the Company made pursuant to this Section 7.2(b) shall operate or be construed as a waiver by the Company of any breach of this Agreement by Parent or Merger Sub or of any rights of the fee at the prime rate of Citibank, N.A. Company in effect on the date such payment was required to be made from the date such payment was required to be made through the date of paymentrespect thereof.
Appears in 1 contract
Sources: Merger Agreement (Network Six Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (shall have any liability or further obligation to any other than party hereunder except as set forth in Section 9.1) shall become void below and except that termination will not relieve a breaching party from liability for any breach of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no this Agreement giving rise to such termination and except that Sections 8.02 and 9.05 shall relieve survive any party hereto of any liability or damages resulting from any willful or intentional breach termination of this Agreement.
(a) If this Agreement is terminated by Washington Mutual pursuant to Section 8.01(b), 8.01(d)(ii) (but only if Ahmanson stockholders have failed to approve the Merger) or (e), or by Ahmanson pursuant to Section 8.01(b), then the other party shall, at the written request of the terminating party, reimburse the terminating party for its documented, reasonable out-of-pocket expenses (including fees and expenses of legal, financial and accounting advisors), up to a maximum of $15 million in the aggregate (the "Expense Reimbursement").
(b) In If this Agreement is terminated (i) by Washington Mutual pursuant to
Section 8.01 (e), (ii) by Washington Mutual or Ahmanson pursuant to Section 8.01(d)(ii) because of a failure to obtain the event that required approval of the stockholders of Ahmanson after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") Ahmanson shall have been publicly made ordisclosed, after the date hereof, or any Person shall have publicly announced disclosed an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated an Acquisition Proposal, or (iii) by either Cingular or the Company Washington Mutual pursuant to Section 8.2(b8.01(b) if the breach by Ahmanson giving rise to such termination was willful and, at or prior to such termination, an Acquisition Proposal shall have been made known to Ahmanson or any of its Subsidiaries or shall have been publicly disclosed to Ahmanson's stockholders, or any Person shall have made known to Ahmanson or any of its Subsidiaries or otherwise publicly disclosed an intention (whether or not conditional) to make an Acquisition Proposal, and regardless of whether such Acquisition Proposal shall have been rejected by Cingular pursuant Ahmanson or withdrawn prior to Section 8.4(a) or Section 8.4(c), (i) then the Company shall promptly, but in no event later than two business days after the date time of such termination, then in any such case Ahmanson shall pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to Washington Mutual a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 85 million (One Billion Four Hundred Million Dollars) the "Initial Termination Fee"). In addition, if, within 18 months after any such termination described in the preceding sentence that gave rise to an obligation to pay the Initial Termination Fee, Ahmanson enters into a definitive agreement with respect to, or consummates a transaction contemplated, in any Acquisition Proposal with any Person, Ahmanson shall pay to Washington Mutual an additional termination fee equal to $190 million (the "Subsequent Termination Fee" and together with the Initial Termination Fee, the "Termination Fee") payable by wire transfer of same day funds). Upon Notwithstanding the payment foregoing, Washington Mutual shall not be entitled to either the Initial Termination Fee or the Subsequent Termination Fee if Washington Mutual has exercised all or any part of the Option (as defined in the Stock Option Agreement).
(c) Any Termination Fee or Expense Reimbursement that becomes payable pursuant to Section 8.02(a) and/or 8.02(b) shall be paid promptly following the receipt of a written request for Termination Fee and/or Expense Reimbursement (including documentation supporting the Expense Reimbursement fees and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(bexpenses). The Company acknowledges Notwithstanding the foregoing, in no event shall either party be obligated to pay any Termination Fee or Expense Reimbursement if such party shall be entitled to terminate this Agreement pursuant to Section 8.01(b).
(d) Ahmanson and Washington Mutual agree that the agreements contained in this Section 8.5(b8.02(a) and 8.02(b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreements Washington Mutual would not enter have entered into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Cingular its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIISection 10, this Agreement (other than shall , except as set forth in Section 9.1) shall provided herein, become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter If this Agreement is terminated because the condition of Sections 6.2, 8.5 or 8.7 have not been satisfied, or Section 10.2(c) or 10.3(b) has not been satisfied, then no Expenses or Break-up Fees shall be payable by either Cingular the Company.
(c) If this Agreement is terminated under the provisions set forth below, the Company agrees to pay Buyer, as Buyer's exclusive remedy under or arising from the transactions contemplated by this Agreement and the other Transaction Documents and the Ancillary Agreements, Buyer's reasonable out-of-pocket expenses incurred in connection with the transactions contemplated by this Agreement ("Expenses"), upon the other Transaction Document and the Ancillary Agreements and, where applicable, a break-up fee ("Break-up Fee") as follows:
(i) If the Company shall terminate this Agreement pursuant to Section 10.2(a) (and the Company consummates an Acquisition Proposal within twelve months of such termination) or Section 10.3(a) or Buyer shall terminate this Agreement pursuant to Section 10.2(a) (and the Company consummates an Acquisition Proposal within twelve months of such termination), Section 10.4(a) or Section 10.4(b), the Company shall pay Buyer (without duplication) its Expenses (which shall not exceed $500,000) and a Break-up Fee in the amount of $500,000.
(ii) If Buyer or the Company shall terminate this Agreement (x) pursuant to Section 8.2(b10.2(b) because the condition of Section 6.1 shall not have been satisfied, or by Cingular pursuant (y) the proposed lender(s) to Section 8.4(athe Company under the Credit Facility Agreement or a commitment letter therefor shall have withdrawn its commitment such that the Company cannot perform its obligations under this Agreement, then in either such case the Company shall pay Buyer (without duplication) or Section 8.4(c)its expenses equal to, at the Buyer's sole option, either (i) then $100,000 in immediately available funds plus the issuance of 200,000 shares of Common Stock (which shares of Common Stock shall be subject to a registration rights agreement to be entered into between the Company and the Buyer in form and substance similar to the Registration Rights Agreement) or (ii) $100,000 in immediately available funds and $100,000 payable without interest equally over a period of 24 months ($4,166.67 per month).
(d) The fees set forth in Section 10.5(c) shall promptlybe paid promptly by the Company, but in no event later than (x) two business days after the date of such termination, pay first to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all occur of the charges and expenses actually incurred by Cingular, SBC, BellSouth execution of an acquisition agreement or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction Acquisition Proposal, in the same proportion as they owned prior case of a termination under clause (c)(i) above pursuant to Section 10.2(a); (y) on the consummation date of such transaction, or termination of this Agreement in the other cases of clause (IIc)(i) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries above; and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than z) two business days after such event, pay SBC and BellSouth termination of this Agreement in proportion to their Specified Interests an aggregate termination fee the case of $1,400,000,000 clause (One Billion Four Hundred Million Dollarsc)(ii) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)above. The Company acknowledges that the that agreements contained in this Section 8.5(b) 10.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Buyer would not enter into this Agreement; accordingly, if the Company fails .
(e) In addition to promptly pay the amount due pursuant its right to terminate this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee Agreement as set forth in this Section 8.5(b) or any portion of such fee7, the Company may pursue any other remedy it may otherwise have, at law, in equity or under any statute. If the Company pursues any such remedy, it shall pay be entitled to Cingular recover, in addition to damages or costs, its costs reasonable attorneys fees. All rights and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount remedies of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to Company under this Agreement shall be made from the date such payment was required to be made through the date of paymentcumulative and not exclusive.
Appears in 1 contract
Sources: Stock Purchase Agreement (Granite City Food & Brewery LTD)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(b) In the event that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(bSections 7.3(a) or 7.3(b) or by Cingular pursuant Wats▇▇ ▇▇▇suant to Section 8.4(a7.4(a) and the Company enters into an agreement or Section 8.4(c)an understanding with respect to an Alternative Proposal within nine (9) months of the date of such termination and thereafter, (i) consummates such transaction, then the Company shall promptly, but promptly pay Wats▇▇ ▇ ▇ee in no event later than two business days an amount equal to $3,000,000. If (x) the Company terminates this Agreement pursuant to Section 7.3(a) or Wats▇▇ ▇▇▇minates this Agreement pursuant to Section 7.4(a)(i); and (y) the Company does not enter into an agreement or an understanding with respect to an Alternative Proposal within nine (9) months after the date termination of this Agreement or does not consummate such terminationtransaction within eighteen (18) months after the termination of this Agreement, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges the Company shall reimburse Wats▇▇ ▇▇▇ all actual out-of-pocket costs and expenses in incurred by Wats▇▇ ▇▇ connection with this Agreement and the transactions contemplated hereby all consummation and negotiation of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum hereby, including, without limitation, legal, professional and service fees and expenses, which amount of $40,000,000 (the "Expenses") shall be payable by wire transfer of same day funds and (ii) if, within 15 twelve months after such from the date of termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b)Agreement. The Company acknowledges that the agreements contained in this Section 8.5(b7.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular Wats▇▇ ▇▇▇ Wats▇▇ ▇▇▇ would not enter into this Agreement; accordingly. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b7.5(a), and, in order to obtain such payment, Cingular Wats▇▇ ▇▇ Wats▇▇ ▇▇▇ commences a suit that which results in a final, non-appealable judgment against the Company for the fee set forth in this Section 8.5(b) or any portion of such fee7.5(a), the Company shall pay to Cingular its Wats▇▇ ▇▇▇ costs and expenses (including attorneys' fees) in incurred by Wats▇▇ ▇▇ connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank12% per annum.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article 7, N.A. in effect on all obligations of the date such payment was required parties hereto shall terminate, except the obligations of the parties pursuant to be made from this Section 7.5 and the date such payment was required to be made through provisions of Sections 5.6 and 5.10, which obligations shall survive the date termination of paymentthis Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVI, this Agreement (other than as set forth in Section 9.1) shall become void and of no force or effect with no liability on the part of any party hereto (or of any of its respective directors, managers, officers, employeesshareholders, agents, legal and financial advisors members or other representativesAffiliates); provided, however, that, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach material Breach of this Agreement.
(b) In Agreement or the event Operative Documents prior to such termination; and provided further, that after the date hereof, an Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal"provisions of Section 8.10(a) shall have been publicly made orremain in full force and effect. Notwithstanding the foregoing, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter if Sellers terminate this Agreement is terminated by either Cingular or the Company pursuant to under Section 8.2(b) or by Cingular pursuant to Section 8.4(a6.1(d) or Section 8.4(c)6.1(f) and Sellers elect to receive the Break Fee as provided in this Section 6.2, Buyer and Buyer’s parent shall be jointly and severally liable to pay to Sellers an amount in cash equal to five percent (i5%) then of the Company shall promptly, but in no event later than two business Purchase Price (the “Break Fee”) within five (5) days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges parties acknowledge and agree that the agreements contained in this Section 8.5(b) are agreement to pay the Break Fee under the circumstances set forth herein is an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreementsthis agreement with respect to the Break Fee, Cingular the parties would not enter have entered into this Agreement; accordingly. Accordingly, if the Company Buyer fails to promptly pay the amount Break Fee when due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences Sellers commence a suit that results in Proceeding or pursue a judgment against the Company Claim for the fee set forth in this Section 8.5(b) or any portion of such feeBreak Fee, the Company Sellers shall pay be entitled to Cingular its recover their costs and expenses (including attorneys' fees’ fees and expenses) incurred in connection with such suitProceeding or Claim, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made from the date such payment was required to be made through until the date of paymentreceipt by Sellers of the Break Fee and Sellers’ costs and expenses, with such interest calculated at a rate of 10% per annum, compounded daily. The parties further acknowledge that the Break Fee is not a penalty, but rather is liquidated damages in an amount reasonably estimated by the parties to compensate Sellers in the circumstances in which the Break Fee is payable for the Sellers’ efforts, resources expended, and opportunities foregone while negotiating this Agreement, in relying 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, Sellers’ right to receive the Break Fee and amounts required under this Section 6.2 shall, to the extent elected by and paid to Sellers, be the sole and exclusive remedy of Sellers against Buyer and its former, current or future stockholders, managers, members, directors, officers, Affiliates or agents for the Losses suffered as a result of the breach of this Agreement and termination under Section 6.1(d) or Section 6.1(f), and upon payment of the amounts required and as provided by this Section 6.2, neither Buyer nor its former, current or future stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation to Sellers or any of their respective stockholders, managers, members, directors, officers, Affiliates or agents relating to or arising out of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event -------------------------------------------------- of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void (other than as set forth in this Section 9.18.2) shall become void and of no effect with no liability on the part of any either party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.;
(b) In Upon the event that happening of a Triggering Event, the Company shall pay to Parent (or to any Subsidiary of Parent designated in writing by Parent to the Company) the amount of $9,000,000 (the "Termination Fee"). "Triggering Event" --------------- ---------------- means any one of the following:
(i) a termination of this Agreement by Parent pursuant to Section 8.1(g)(i) or (ii);
(ii) a termination of this Agreement by Parent pursuant to Section 8.1(d)(i) or 8.1(f) if any Acquisition Proposal is publicly proposed or announced on or after the date hereof, an hereof and such Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof) (a "Covered Proposal") shall have has not been publicly made rejected by the Board of Directors; or, after the date hereof, any Person shall have publicly announced an intention
(whether or not conditionaliii) to make a Covered Proposal and thereafter termination of this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b8.1(h); or
(iv) if, within twelve months after a termination of this Agreement, any Acquisition Transaction is entered into, agreed to or consummated by Cingular pursuant the Company with a Person (other than Parent or Merger Sub) who made, or who is affiliated with any Person (other than Parent or Merger Sub) who made, (A) an Acquisition Proposal or (B) a statement of intent to Section 8.4(apursue an Acquisition Transaction, either of which was publicly proposed or announced prior to a termination of this Agreement. Payment of the Termination Fee shall be made by wire transfer of immediately available funds (1) or Section 8.4(c), on the second business day after such termination in the case of clauses (i) then and (ii) of the Company shall promptlydefinition of Triggering Event, but in no event later than two business days after (2) on or prior to the date of such termination, pay in the case of clause (iii) of the definition of Triggering Event, or (3) on the earlier of (x) the date a contract is entered into with respect to Cingular on behalf an Acquisition Transaction or (y) the date an Acquisition Transaction is consummated, in the case of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with clause (iv) of the definition of Triggering Event. In no event shall more than one Termination Fee be payable by each party under this Agreement. Notwithstanding any other provision of this Agreement and to the transactions contemplated hereby all contrary, upon receipt of the charges Termination Fee by Parent (or its designee), Parent and expenses actually incurred by Cingular, SBC, BellSouth Merger Sub shall have no other or their respective Affiliates in connection with this Agreement and further claim or demand of any kind or nature whatsoever against the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular Company or any of its Affiliatesaffiliates except for any claims or rights Parent may have under the Shareholders Agreement or the Option Agreement.
(c) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of If the Company or (Y) with respect terminates this Agreement pursuant to any transaction or series of related transactions after which stockholders of Section 8.1(e), Parent shall pay to the Company immediately prior as liquidated damages the sum of $9,000,000; and, notwithstanding any other provision of this Agreement to the consummation contrary, upon receipt of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, sum the Company shall have no other or further liabilities claim or obligations under this Section 8.5(b). demand of any kind or nature whatsoever against Parent, Merger Sub or any of their affiliates.
(d) The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cingular neither party would not enter into this Agreement; accordingly. Accordingly, if the Company either party fails to pay promptly pay the amount amounts when due pursuant to this Section 8.5(b)8.2, and, in order to obtain such payment, Cingular the other party commences a suit that which results in a judgment against the Company non-paying party for the fee set forth in this Section 8.5(b) such amount (or any portion of such feethereof), the Company non-paying party shall pay to Cingular its the costs and expenses (including attorneys' reasonable attorneys fees) of the other party in connection with such suit, together with interest on the such amount in respect of the fee period from the date such amount became due until paid at the prime rate of Citibank, N.A. The Chase Manhattan Bank in effect on the date from time to time during such payment was required to be made from the date such payment was required to be made through the date of paymentperiod.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, subject to the provisions of Section 8.02(b) and Section 8.02(c), no party to this Agreement shall have any liability or further obligation to any other party hereunder except (other than i) as set forth in Section 9.19.01 and (ii) shall become void and of no effect with no that termination will not relieve a breaching party from liability on the part of for any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this AgreementAgreement prior to such termination.
(b) In If this Agreement shall be terminated (i) by Zions pursuant to Section 8.01(b) or 8.01(d)(ii) (and, at the event that after time of the date hereofoccurrence of the circumstance permitting termination pursuant to such Section, there shall exist an Acquisition Proposal (but substituting 40% for the 15% threshold set forth with respect to Company or any of its Subsidiaries, which, in the definition thereof) (event of a "Covered Proposal"termination pursuant to Section 8.01(d)(ii) shall have been publicly made announced prior to the time of the Company Meeting) or, after the date hereof, any Person shall have publicly announced an intention
Section 8.01 (whether e) or not conditionalSection 8.01(f) to make a Covered Proposal and thereafter this Agreement is terminated or (ii) by either Cingular or the Company pursuant to Section 8.2(b8.01(d)(ii) or by Cingular (and, at the time of the occurrence of the circumstance permitting termination pursuant to Section 8.4(a) or Section 8.4(c)such Section, (i) then the there shall exist an Acquisition Proposal with respect to Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all of the charges and expenses actually incurred by Cingular, SBC, BellSouth or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular or any of its Affiliates) has entered into an agreement (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combination, in one transaction or any related series of transactions, 40% or more of Subsidiaries that shall have been publicly announced prior to the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets time of the Company Meeting) or (Y) with respect to any transaction or series of related transactions after which stockholders of the Company immediately prior to the consummation of such transaction or transactions would cease to own directly or indirectly at least 60% of the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior to the consummation of such transaction, or (II) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its AffiliatesSection 8.01(g), then the Company shall, shall promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate Zions a termination fee equal to $1.8 million, which (except in the case of $1,400,000,000 (One Billion Four Hundred Million Dollarstermination pursuant to Section 8.01(f), in which case such amount shall offset any damages to Zions to the extent of payment) (the "Termination Fee") payable parties agree shall represent liquidated and exclusive damages recoverable by wire transfer of same day fundsZions relating to the actions resulting in termination. Upon Notwithstanding the payment foregoing, Zions shall not be entitled to any termination fee hereunder if Zions has exercised all or any part of the Termination Fee Option (as defined in the Stock Option Agreement).
(c) Company and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges Zions agree that the agreements contained in this Section 8.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreements Zions would not enter have entered into this Agreement; accordingly, if and that such amount constitute reasonable liquidated damages and reasonable compensation to Zions for the loss sustained thereby and not a penalty. If Company fails to promptly pay Zions the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(bunder paragraph (b) or any portion within ten (10) Business Days of such feetermination, the Company shall pay to Cingular its the costs and expenses (including attorneys' feeslegal fees and expenses) incurred by Zions in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamount, together with interest on the amount of the fee any such unpaid amount at the publicly announced prime rate of Citibank, N.A. in effect on the date such payment was required to be made Zions First National Bank from the date of such payment was required to be made through the date of paymenttermination.
Appears in 1 contract
Sources: Merger Agreement (Regency Bancorp)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, subject to the provisions of Section 8.02(b) and Section 8.02(c), no party to this Agreement shall have any liability or further obligation to any other party hereunder except (other than i) as set forth in Section 9.19.01 and (ii) shall become void and of no effect with no that termination will not relieve a breaching party from liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from for any willful or intentional breach of this AgreementAgreement giving rise to such termination.
(b) In If this Agreement shall be terminated (i) by Zions pursuant to Section 8.01(b), Section 8.01(e) or Section 8.01(f) and, at the event that after time of the date hereofoccurrence of the circumstance permitting termination pursuant to such Section, there shall exist an Acquisition Proposal with respect to Company or any of its Subsidiaries, or (but substituting 40% for the 15% threshold set forth in the definition thereofii) (a "Covered Proposal") shall have been publicly made or, after the date hereof, any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal and thereafter this Agreement is terminated by either Cingular or the Company pursuant to Section 8.2(b) or by Cingular pursuant to Section 8.4(a8.01(d)(ii) or Section 8.4(c)8.01(g) and, (i) then at the Company shall promptly, but in no event later than two business days after the date of such termination, pay to Cingular on behalf of it, SBC and BellSouth and their respective Affiliates incurring charges and expenses in connection with this Agreement and the transactions contemplated hereby all time of the charges and expenses actually incurred by Cingularoccurrence of the circumstance permitting termination pursuant to such Section, SBC, BellSouth or their respective Affiliates in connection there shall exist an Acquisition Proposal with this Agreement and the transactions contemplated by this Agreement up respect to a maximum amount of $40,000,000 (the "Expenses") payable by wire transfer of same day funds and (ii) if, within 15 months after such termination (I) any Person (other than Cingular Company or any of its Affiliates) has entered into an agreement Subsidiaries, then Company shall promptly pay to Zions a termination fee equal to $1.8 million, which (X) to, directly or indirectly, acquire by purchase, merger, consolidation, sale, assignment, lease, transfer or similar business combinationexcept in the case of termination pursuant to Section 8.01(f), in one transaction or which case such amount shall offset any related series of transactions, 40% or more of the voting power of the outstanding securities of the Company, or ownership or control of 40% or more of the consolidated assets of the Company or (Y) with respect damages to any transaction or series of related transactions after which stockholders of the Company immediately prior Zions to the consummation extent of such transaction or transactions would cease to own directly or indirectly at least 60% of payment) the voting power of the outstanding securities of the Company (or of another Person that directly or indirectly would own all or substantially all the assets of the Company) immediately following such transaction in the same proportion as they owned prior parties agree shall represent liquidated and exclusive damages recoverable by Zions relating to the consummation of such transaction, or actions resulting in termination.
(IIc) there has been consummated any such merger, consolidation or similar business combination or any such sale, assignment, lease or transaction between the Company or one of its Subsidiaries and any Person (other than Cingular or any of its Affiliates), then the Company shall, promptly following such event, but in no event later than two business days after such event, pay SBC and BellSouth in proportion to their Specified Interests an aggregate termination fee of $1,400,000,000 (One Billion Four Hundred Million Dollars) (the "Termination Fee") payable by wire transfer of same day funds. Upon the payment of the Termination Fee and the Expenses, the Company shall have no further liabilities or obligations under this Section 8.5(b). The Company acknowledges Zions agree that the agreements contained in this Section 8.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Cingular such agreements Zions would not enter have entered into this Agreement; accordingly, if and that such amount constitute reasonable liquidated damages and reasonable compensation to Zions for the loss sustained thereby and not a penalty. If Company fails to promptly pay Zions the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Cingular commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(bunder paragraph (b) or any portion within three business days of such feetermination, the Company shall pay to Cingular its the costs and expenses (including attorneys' feeslegal fees and expenses) incurred by Zions in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamount, together with interest on the amount of the fee any such unpaid amount at the publicly announced prime rate of Citibank, N.A. in effect on the date such payment was required to be made Zions First National Bank from the date of such payment was required to be made through the date of paymenttermination.
Appears in 1 contract
Sources: Merger Agreement (Fp Bancorp Inc)