Effect of Termination and Abandonment. (a) In the event of 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 (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination. (b) The Company shall pay Parent the sum of $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 immediately available funds to an account designated by Parent. (c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be 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 termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 10.1) shall become void and Section 9.01 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 (ii) that financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any fraud or willful or intentional breach of any covenant, agreement, representation or warranty this Agreement. No termination of this Agreement giving rise to such terminationshall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms.
(b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the sum transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of $7.5 million (same day funds on the "date that the Termination Fee") if Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated as followsterminated:
(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(e9.2(a) and in or (b), if the case of any termination pursuant to clause following shall have occurred:
(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 Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the vote Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the shareholders date of the Company contemplated Meeting; and
(B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B));
(ii) by this Agreement at the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to 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 recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (B), or i) above; (y) on the date of termination, termination of this Agreement in the case of clause (A), then ii) above; and (xz) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company shall pay to Parent an amount equal to $1.0 million on of reasonable documentation therefor following the second Business Day following such termination, and (y) if within 18 months after such termination the Company or a Subsidiary occurrence of the Company enters into an agreement with respect to, or consummates, an Acquisition Proposal, then the Company shall pay termination event giving rise to Parent the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (net including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any payment made pursuant to clause (x) above) on Termination Fee paid in connection with the date termination of execution of such agreement or consummation of an Acquisition Proposalthis Agreement in accordance with the termination provisions set forth in this Article IX. Any amount that becomes Under no circumstances shall the Termination Fee be payable more than once pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) Article IX. The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 9.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinTermination Fee and/or Expenses, as the case may be, the Company shall pay the to Parent its reasonable costs and expenses (including reasonable legal attorneys’ 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 amountssuit, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street JournalTermination Fee and/or Expenses, calculated on a daily basis from the date such amounts were payment was required to be paid made until the date of actual paymentpayment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.
Appears in 2 contracts
Sources: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and (ii) that financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful or intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall agrees to pay Parent a fee in immediately available funds (in recognition of the sum fees and expenses incurred to date by Parent in connection with the matters contemplated hereby) of $7.5 million 26,000,000 (the "“Termination Fee"”) if this Agreement is terminated as followsterminated:
(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 as permitted by Section 8.01(e) and in the case of any termination pursuant to clause (A) or 8.2(b), (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 Company Stockholders Meeting, a third party has made a bona fide written Acquisition Proposal that has been publicly disclosed and not publicly withdrawn prior to the Company Stockholders Meeting and (C) within nine months of such termination the Company or any of its Subsidiaries shall have entered into any acquisition agreement or consummated any Acquisition Proposal (for purposes of the vote foregoing clause the term “Acquisition Proposal” has the meaning assigned to such term in Section 6.2(d) except that the references to “20%” in the definition are deemed to be references to “50%”);
(ii) by the Company pursuant to Section 8.3(a); or
(iii) by Parent pursuant to Section 8.4(a). The Termination Fee shall be paid promptly by the Company, but in no event later than: (x) two business days after the first to occur of the shareholders execution of an acquisition agreement or the consummation of the Company contemplated by this Agreement at the Company MeetingAcquisition Proposal, in the case of clause (B), or i) above; (y) on the date of termination, termination of this Agreement in the case of clause (A), then ii) above; and (xz) two business days after termination of this Agreement in the case of clause (iii) above. The Company’s payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following such terminationand any of its Subsidiaries and their respective directors, and (y) if within 18 months after such termination the Company officers, employees, agents, advisors or a Subsidiary of the Company enters into an agreement other representatives with respect to, or consummates, an Acquisition Proposal, then to the Company shall pay to Parent the Termination Fee (net breach of any payment made pursuant covenant or agreement giving rise to clause (x) above) on such payment. The Company acknowledges that the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable pursuant to agreements contained in this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Usf Corp), Merger Agreement (Yellow Roadway Corp)
Effect of Termination and Abandonment. (a) In Except as provided in Section 9.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, no party to this Agreement (other than this Section 9.5 and Sections 6.2(c), 6.2(d) and 7.9 and Article X) shall have become void and of no effect with no liability on the part of any liability Party (or further obligation to of any of its directors, officers, employees, agents, legal and financial advisors or other party hereunder representatives); provided, however, except (i) as set forth in Section 9.5(e) below, no such termination shall relieve any Party hereto of any liability or damages resulting from (i) any willful and material breach of any representations or warranties contained in this Section 8.02 and Section 9.01 and Agreement or (ii) that termination will not relieve a breaching party from liability for any willful and material breach of any covenant, agreement, representation covenant or warranty of agreement contained in this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if this Agreement is terminated by the Company pursuant to Section 9.3(b) or by Parent pursuant to Section 8.01(f) or (g9.4(b); or
(ii) if at any time on or after the date hereof and prior to the termination of 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) this Article IX it shall be publicly disclosed that an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company Board (or any Person of its subsidiaries or any of its stockholders, or any person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition ProposalProposal with respect to the Company or any of its subsidiaries, and thereafter this Agreement is terminated pursuant to Section 9.3(a)(ii) or Section 9.4(a) (A) following a failure of the Offer Condition set forth in paragraph 2(d) of Exhibit A to be satisfied or (B) as a result of a failure of the Minimum Tender Condition to be satisfied at any time after the date of this Agreement and prior to the taking expiration of the vote of the shareholders of the Company contemplated by this Agreement at the Company MeetingOffer when all other Offer Conditions have been satisfied or waived, and, in the case of either clause (A) or clause (B), or the date within 12 months of such 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, to any Acquisition Proposal or consummates, an (y) any Acquisition Proposal, Proposal is consummated; then the Company shall pay Parent a termination fee of ten million U.S. dollars (US$10,000,000) in same-day funds. Such payment shall be made (I) concurrently with such termination in the case of a termination by the Company pursuant to Section 9.3(b), (II) on the first Business Day following the date of such termination in the case of a termination by Parent pursuant to Section 9.4(b) and (III) on the Termination Fee (net first Business Day after the occurrence of any payment made pursuant of the events referred to clause in clauses (x) aboveand (y) on of Section 9.5(b)(ii) in the date case of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes a fee payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent9.5(b)(ii).
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (bSection 9.5(b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent or Purchaser would not have entered into this 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 Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.5(b), as applicable, and, in order to obtain such payment, Parent commences a suit which results in a judgment for the amounts due under paragraph (b) above within the time periods specified thereinfee set forth in this Section 9.5, the Company shall pay the any costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing of Citibank N.A. in effect from time to time during such period as published plus two percent.
(d) If Parent would be entitled to terminate this Agreement and receive a fee pursuant to Section 9.5(b)(ii)(A), termination of this Agreement and collection of such fee shall be the exclusive remedy of Parent and Purchaser in The Wall Street Journalrespect of any breach, calculated on a daily basis from the date such amounts were required failure, untruth or incorrectness referred to be paid until the date in paragraph 2(d) of actual payment.Exhibit A.
Appears in 2 contracts
Sources: Merger Agreement (Synopsys Inc), Merger Agreement (Numerical Technologies Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article VIII, no party to this Agreement (other than as set forth in Section 6.8, this Section 8.5 and Article IX) shall have 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 or financial advisors or other representatives); provided, however, that no such termination shall relieve any party hereto from any liability or further obligation for damages to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party resulting from liability for any prior willful breach of this Agreement, fraud in connection with this Agreement, or from any covenantobligation to pay, agreementif applicable, representation or warranty of this Agreement giving rise the Termination Fee pursuant to such terminationSection 8.5(b).
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if 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(e8.3(c), (ii) by Buyer pursuant to Section 8.4(a), or (iii) by Buyer or Merger Sub pursuant to Section 8.4(b), or by the Company, Buyer or Merger Sub pursuant to Section 8.2(a), and in the either such case of any termination pursuant to under this clause (A) or (B) iii), prior to such termination an Acquisition Proposal shall have had 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 disclosed and not conditional, to make an Acquisition Proposal) at any time after the date withdrawn and within twelve months 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 consummates a transaction with respect to an Acquisition Proposal or a Subsidiary of the Company enters into an agreement with respect to, or consummates, providing for an Acquisition Proposal, then the Company shall pay to Parent Buyer a fee equal to $35,680,000 (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 Fee”), payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available same day funds (A) concurrently with any termination pursuant to Section 8.3(c), (B) within one Business Day after termination pursuant to Section 8.4(a), and (C) within one Business Day after the Company consummates an account designated by ParentAcquisition Proposal under the circumstances described in Section 8.5(b)(iii) above; it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (bSection 8.5(b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, Buyer and Merger Sub would not have entered enter into this Agreement and that such amounts do not constitute a penalty or liquidated damages Agreement. Accordingly, in the event of a breach of this Agreement by the Company. If that the Company fails to pay Parent the when due any amounts due payable under paragraph this Section 8.5, then (bi) above within the time periods specified therein, the Company shall pay the reimburse Buyer for all costs and expenses (including disbursements and reasonable fees of in-house legal fees counsel and expensesoutside legal counsel) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment collection of such amountsamount, together with and (ii) the Company shall pay to Buyer interest on such amount (for the period commencing as of the date that such amount of any was originally required to be paid and ending on the date that such unpaid amounts amount is actually paid in full) at a rate per annum equal to the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated Journal on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade plus three percent (3%).
Appears in 2 contracts
Sources: Merger Agreement (NCR Corp), Merger Agreement (Radiant Systems Inc)
Effect of Termination and Abandonment. (a) In the event of 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 party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 subsections (b) and (iic) below and in Section 9.01, except that termination will shall not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Nortel Networks and the Company agree that the Company shall pay Parent to Nortel Networks the sum of $7.5 million 225,000,000 (the "Termination Fee") if this Agreement is terminated solely as follows:
(i) if (x) the Company shall terminate this Agreement is terminated by Parent pursuant to Section 8.01(f8.01(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 (gin a manner satisfying the conditions set forth in 7.01(b); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) of, or (B) by either Parent make any filing or the Company pursuant to Section 8.01(eregistration with, any Governmental Authority) 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 Proposaly) at any time after the date of this Agreement and prior at or before such termination there shall have been made to the taking Company or its stockholders an Acquisition Proposal and (z) within 12 months of the vote 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 shareholders 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 contemplated by 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 at pursuant to Section 8.01(b)(ii) following a willful breach by the Company Meetingof (A) the covenants or agreements contained in Section 6.06, in the case of clause 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 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 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 consummatesconsummation of, an Acquisition Proposal, then whichever is earlier. 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 pay more than one Termination Fee be payable, and (ii) Nortel Networks may elect, by notice to Parent the Company, to defer the payment of the Termination Fee (net from time to time for a period or periods of any payment made pursuant up to clause (x) above) on an aggregate of twelve months after the date of execution of such agreement or consummation of an Acquisition Proposalfee would otherwise be payable. Any amount that becomes payable pursuant to All payments under this Section 8.02(b) 8.02 shall be paid made by wire transfer of immediately available funds to an account designated by ParentNortel Networks.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
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 termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than this Section 8.5 and Sections 5.3(c), 6.13 and Article IX) shall have 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, no such termination shall relieve any party hereto of any liability or further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party damages resulting from liability for any willful breach of any covenantrepresentation, agreementwarranty, representation covenant or warranty of agreement contained in this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (i) if this Agreement is terminated by Parent the Company pursuant to Section 8.01(f8.3(b) or (g); or
(ii) if an Acquisition Proposal shall have been made to the 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 an Acquisition Proposal with respect to the Company or any of its subsidiaries and thereafter 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(e8.2(a), 8.2(b), 8.4(a), 8.4(b)(i) 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 Meetingor, in the case of clause (B)a willful breach of covenant or agreement by the Company, or 8.4(b)(ii) and within 12 months of such termination of this Agreement, any Acquisition Proposal by a third party is consummated by the date of terminationCompany, then, in the case of clause (Ai) or (ii), then (x) the Company shall pay to Parent an amount a termination fee of $25,000,000 in same-day funds, together with interest accrued thereon at a rate equal to $1.0 million on the second Business Day following such terminationprime rate, and (y) if within 18 months after such termination as announced by Citibank, N.A. from time to time, plus 2% during 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) period commencing on the date of execution of such agreement or consummation of an Acquisition Proposalthe termination fee is first payable hereunder. Any amount that becomes payable The termination fee required to be paid pursuant to this Section 8.02(bsubsection (b)(i) shall be paid by wire transfer the Company to Parent no later than (and as a condition to the effectiveness of) such termination or such later date to which Parent elects to defer payment hereunder. The termination fee required to be paid pursuant to subsection (b)(ii) shall be paid by the Company to Parent not later than concurrently with such consummation of immediately available funds such Acquisition Proposal and such consummation shall be preceded by at least three business days advance notice by the Company to Parent. Notwithstanding the foregoing, (A) Parent may elect, by notice to the Company, to defer the payment of the termination fee from time to time for a period or periods of up to an account designated aggregate of twelve months after the date such fee would otherwise be payable and (B) the termination fee shall cease to be payable immediately following any exercise by ParentParent of the Option under the Option Agreement.
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (bSection 8.5(b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent would not have entered into this 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 Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to Section 8.5(b) and, in order to obtain such payment, Parent commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinfee set forth in this Section 8.5, the Company shall pay the to Parent its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentsuit.
Appears in 2 contracts
Sources: Merger Agreement (Nfo Worldwide Inc), Merger Agreement (Interpublic Group of Companies Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as set forth in otherwise provided herein, no such termination shall relieve any party hereto of any liability to pay the Termination Fee or Parent Fee pursuant to this Section 8.02 and Section 9.01 8.5, and (ii) that the provisions set forth in the second sentence of Section 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if either (x) (I) before obtaining the Requisite Company Vote, this Agreement is terminated pursuant to Section 8.2(a) (the section relating to the Termination Date) or Section 8.2(b) (the section relating to failure to receive stockholder approval), (II) any Person shall have made a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination or, with respect to a termination pursuant to Section 8.2(b), prior to the Stockholders Meeting, and (III) within 12 months of such termination the Company shall have entered into a definitive agreement with respect to an Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (III) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”) or (y) (I) this Agreement is terminated pursuant to Section 8.4(c) (the section relating to breach of the Acquisition Proposals covenant), and (II) within 12 months of such termination the Company shall have entered into a definitive agreement with respect to an Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (II) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gthe section relating to a Change of Recommendation); or
(iiiii) 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(e8.3(a) 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 immediately available funds section relating to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Alternative Acquisition Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.);
Appears in 1 contract
Sources: Merger Agreement (Ims Health Inc)
Effect of Termination and Abandonment. (a) In Except as provided in paragraph (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except hereto resulting from any material breach of this Agreement and (iii) as the provisions set forth in this Section 8.02 8.5 and the second sentence of Section 9.01 and (ii) that 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall pay Parent have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the sum Company or any of $7.5 million its Subsidiaries (the "Termination Fee"and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) if thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(a) and (B) at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(b)), and thereafter 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(e8.2(a) and in the case of any termination or 8.2(b) (ii) this Agreement is terminated (A) by Parent pursuant to clause Section 8.4 (Aother than subsection 8.4(e)) or (B) an Acquisition Proposal by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise to Parent's right to terminate under Section 8.4 (other than subsection 8.4(e)) shall have been publicly announced occurred or otherwise communicated or made known to (iii) this Agreement is terminated by the Company Board (or any Person pursuant to Section 8.3(a), then the Company shall have publicly announcedpromptly, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time but in no event later than two days 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, pay Parent a termination fee of $28 million (the "TERMINATION FEE") (provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3), payable by wire transfer; provided, however, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and (y) if until within 18 12 months after of such termination the Company or a Subsidiary any of the Company enters its Subsidiaries shall have entered into an agreement Alternative Acquisition Agreement with respect to, or consummatesshall have consummated or shall have approved or recommended to the Company's stockholders or otherwise not opposed, an Acquisition Proposal (substituting "50%" for "15%" in the definition of "Acquisition Proposal"); provided that for purposes of this Agreement, then 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 pay have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved or recommended to Parent the Termination Fee (net of any payment Company's stockholders or otherwise not opposed, an Acquisition Proposal made pursuant to clause (x) above) by or on the date of execution behalf of such agreement Person or consummation any of an Acquisition Proposalits Affiliates. Any amount The Company acknowledges that becomes payable pursuant to the agreements contained in this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 Agreement; accordingly, if the Company fails to promptly pay the Termination Fee pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the amounts due under paragraph (bCompany for the fee set forth in this Section 8.5(b) above within the time periods specified thereinor any portion of such fee, the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual payment. Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge that in the event that the Termination Fee becomes payable and is promptly paid by the Company 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 monetary damages under this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger is terminated pursuant to this Article VIIIVII, no party written notice thereof shall be given to this Agreement shall have any liability or further obligation to any the other party hereunder or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, and, except (i) as set forth in this Section 8.02 7.05 and as set forth in Section 9.01 8.01, shall become void and of no effect with no liability on the part of any party hereto (or of any of its respective Representatives); provided 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 will resulted, directly or indirectly, from an Intentional Breach or (y) an Intentional Breach shall cause the Closing not relieve a to occur, then, notwithstanding such termination, such breaching party from liability shall be fully liable for any willful breach and all damages (including Derivative Damages), costs, expenses, liabilities or losses of any covenantkind, agreementin each case, representation incurred or warranty suffered by the other party (collectively, “Damages”) as a result of this Agreement giving rise to such termination.
breach. (b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if If this Agreement is terminated as follows:
(ix) if this Agreement is terminated by Parent pursuant to Section 8.01(f7.04(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 (gz) by the Company pursuant to Section 7.03(c) (Termination for Superior Company Proposal); or
, then the Company shall, within two business days after such termination in the case of clause (iix) 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 by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent or the Company pursuant to Section 8.01(e7.02(a) and in the case of any termination pursuant to clause (ATermination Date) or 7.02(b) (Company Stockholder Vote) or (B) an 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 of this Agreement, a bona fide Company Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company Board (or any of its Subsidiaries or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an a bona fide Company 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 MeetingProposal or, in the case of clause termination by Parent pursuant to Section 7.04(b) (BCompany Breach), a Company Acquisition Proposal shall have been made publicly or privately to the date Board of terminationDirectors of the Company, (iii) in the case of clause a termination pursuant to Section 7.02(a) (ATermination Date), then the conditions set forth in Sections 6.01(d) (xGovernmental Consents), 6.01(e) the Company (Law; Order) and 6.02(c) (Government Approvals) shall pay to Parent an amount equal to $1.0 million on the second Business Day following such terminationhave been satisfied, and (yiv) if within 18 12 months after such 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 a Subsidiary of the Company enters into an agreement with respect to, or consummates, an contemplating a Company Acquisition Proposal, then the Company shall pay to Parent the Company Termination Fee (net of any payment made pursuant to clause (x) above) on concurrently with the date of execution earlier of such agreement entry or consummation consummation; provided that solely for purposes of an Acquisition Proposal. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) second sentence of this Section 8.02 is an integral part 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 transactions contemplated by this Agreement, that without Retained Business as the denominator for purposes of calculating such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the percentage)” shall be deemed to be deleted. In no event of a breach of this Agreement by the Company. If shall the Company fails be required to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest Termination Fee on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentmore than one occasion.
Appears in 1 contract
Sources: Amended and Restated Agreement and Plan of Merger (New Fox, Inc.)
Effect of Termination and Abandonment. (a) In the event that any person shall have made an Alternative Proposal for the Company and (i) thereafter this Agreement is terminated pursuant to Section 7.3(a) or clause (i) of Section 7.4 or (ii) this Agreement is terminated for any other reason (other than the breach of this Agreement by the Purchaser) and, in the case of this clause (ii) only, a transaction contemplated by such Alternative Proposal is consummated within one year after such termination (either of the foregoing events being called a "Payment Event"), then the Company shall reimburse to the Purchaser its reasonably and appropriately documented costs and expenses incurred in connection with the Merger which amount shall be payable by wire transfer of same day funds either on the date contemplated in the last sentence of Section 7.3 if applicable or, otherwise, within two business days after such amount becomes due. The Company acknowledges that the agreements contained in this Section 7.5(a) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, the Purchaser would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 7.5(a), and, in order to obtain such payment, the Purchaser commences a suit which results in a judgment against the Company for the fee set forth in this Section 7.5(a), the Company shall pay to the Purchaser its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the original amount at the prime rate as reported in The Wall Street Journal on the date of such judgment.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, no party all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section 7.5 and except for the provisions of Sections 5.9, 8.3, 8.4, 8.6, 8.8, 8.9, 8.12 and 8.13. Moreover, in the event of termination of this Agreement pursuant to Sections 7.2, 7.3 or 7.4, nothing herein shall have any liability or further obligation to prejudice the ability of the non-breaching party from seeking damages from any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty material provision of this Agreement giving rise to such termination.
(b) The Company shall pay Parent the sum of $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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that including without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified thereinlimitation, the Company shall pay the costs and expenses (including reasonable legal attorneys' fees and expenses) incurred by Parent the right to pursue any remedy at law or in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentequity.
Appears in 1 contract
Sources: Merger Agreement (Firecom Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other person on the part of any party hereunder except hereto (or of any of its subsidiaries, officers or directors or any Parent Related Party); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein and subject to Section 8.5(d) (including the limitation on liability set forth in therein), no such termination shall relieve any party hereto of any liability for damages to the other party hereto resulting from willful and intentional breach of this Section 8.02 and Section 9.01 Agreement and (ii) the provisions set forth in Section 6.13(c), Section 6.15(c), this Section 8.5 and Article IX, the Confidentiality Agreement and the Equity Financing Commitments (to the extent set forth therein) shall survive the termination of this Agreement. For purposes of this Agreement, “willful and intentional breach” shall mean a material breach that termination will not relieve is a consequence of an omission by, or act undertaken by or caused by, the breaching party from liability for any willful with the knowledge (actual or constructive) that the omission or taking or causing of such act would, or would reasonably be expected to, cause a breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (x) this Agreement is terminated pursuant to Section 8.2(a), Section 8.2(b) or Section 8.4(c), (y) any person shall have publicly announced or otherwise communicated (which communication, for purposes of a termination pursuant to Section 8.2(b) of the preceding clause (x) only, shall be public) to the Company Board or the Company’s shareholders an Acquisition Proposal after the date of this Agreement but prior to such termination, which Acquisition Proposal had not been publicly withdrawn prior to (1) the termination of this Agreement (in connection with a termination pursuant to Section 8.2(a) or Section 8.4(c) of the preceding clause (x)) or (2) the Shareholders Meeting (in connection with a termination pursuant to Section 8.2(b) of the preceding clause (x)), and (z) prior to or within twelve (12) months of such termination the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or consummated any Acquisition Proposal (in each case whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (y)) (provided that for purposes of this Section 8.5(b)(i), the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or 8.4(b) (gor is terminated by the Company at a time when this Agreement was terminable pursuant to Section 8.4(a) or 8.4(b)); or
(iiiii) 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 (B8.3(a), 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in Section 9.5(b) and Section 9.5(c), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any Party (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in this Agreement to the contrary, that (i) no such termination shall relieve any Party of any liability or further obligation damages to the other Party resulting from fraud or any other party hereunder except (i) as set forth in Willful and Material Breach of this Section 8.02 and Section 9.01 Agreement and (ii) that the provisions set forth in Section 7.10, this Section 9.5, Article X and the Confidentiality Agreement shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if this Agreement is terminated by the Company pursuant to Section 9.3(c);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f) 9.4(a); or (g); or
iii) (iiA) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or 9.4(d); and (B) by either Parent or the (I) a bona fide 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 (1) made known to the Company Board or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Company Acquisition Proposal has been publicly made or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, disclosed) prior to make an Acquisition Proposal) at any the time after the date of termination of this Agreement and prior to the taking (II) concurrently with or within twelve (12) months of the vote of the shareholders of such termination, the Company contemplated by this shall have consummated a Company Acquisition Proposal or entered into a definitive Alternative Company Acquisition Agreement at relating to a Company Acquisition Proposal that is subsequently consummated (whether or not, in each case, such Company Acquisition Proposal is the same one as the Company MeetingAcquisition Proposal referred to in clause (B)(I)); provided that, in the case for purposes of clause (B) of this Section 9.5(b)(iii), or the date of termination, references to “twenty percent (20%)” in the case definition 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, ” shall be deemed to be references to “fifty percent (50%)”; 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 its designee(s)), by wire transfer of same-day funds, a termination fee of $87,610,000 (the “Termination Fee”) (x) in the case of Section 9.5(b)(i), substantially concurrently with the termination of this Agreement pursuant to Section 9.3(c); (y) in the case of Section 9.5(b)(ii), no later than two (2) Business Days after the date of termination of this Agreement pursuant to Section 9.4(a); and (z) in the case of Section 9.5(b)(iii), immediately available funds prior to an account designated by Parentor substantially concurrent with the last to occur of the events set forth in Section 9.5(b)(iii). It is understood and agreed that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) The In the event that:
(i) this Agreement is terminated by Parent pursuant to Section 9.4(c);
(ii) this Agreement is terminated by the Company pursuant to Section 9.3(a); or
(iii) (A) this Agreement is terminated by either the Company or Parent pursuant to Section 9.2(b) under circumstances in which the Parent Majority of the Minority Stockholder Approval is not obtained; and (B) (I) a bona fide Parent agree Acquisition Proposal shall have been (1) made known to the Special Committee or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Parent Acquisition Proposal has been publicly made or disclosed) prior to the date of the Parent Stockholders Meeting and (II) concurrently with or within twelve (12) months of such termination, Parent shall have consummated a Parent Acquisition Proposal or entered into a definitive Alternative Parent Acquisition Agreement relating to a Parent Acquisition Proposal that is subsequently consummated (whether or not, in each case, such Parent Acquisition Proposal is the agreement contained same one as the Parent Acquisition Proposal referred to in paragraph clause (bB)(I)); provided that, for purposes of clause (B) of this Section 8.02 9.5(c)(iii), references to “twenty percent (20%)” in the definition of “Parent Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”; then Parent shall pay to the Company (or its designee(s)), by wire transfer of same-day funds, a termination fee of $34,070,000 (the “Parent Termination Fee”) (x) in the case of Section 9.5(c)(i), substantially concurrently with the termination of this Agreement pursuant to Section 9.4(c); (y) in the case of Section 9.5(c)(ii), no later than two (2) Business Days after the date of termination of this Agreement pursuant to Section 9.3(a); and (z) in the case of Section 9.5(c)(iii), immediately prior to or substantially concurrent with the last to occur of the events set forth in Section 9.5(c)(iii). It is understood and agreed that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(d) Each of the Company and Parent acknowledges that the agreements contained in Section 9.5(b) and Section 9.5(c) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, the Parties would not have entered enter into this Agreement and that such amounts do the damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and, therefore, each of the Termination Fee payable pursuant to Section 9.5(b) and the Parent Termination Fee payable pursuant to Section 9.5(c) is not constitute a penalty or but rather constitutes an amount akin to liquidated damages in a reasonable amount that will compensate Parent or the event of a breach of Company, as applicable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger and the other transactions contemplated by the Companythis Agreement. If Accordingly, if (i) the Company fails to promptly pay the Termination Fee due by it pursuant to Section 9.5(b) or (ii) Parent fails to promptly pay the amounts Parent Termination Fee due under paragraph (bby it pursuant to Section 9.5(c) above within and, in order to obtain such payment Parent or the time periods specified thereinCompany, as applicable, commences a Proceeding that results in a judgment against the Company or Parent, as applicable, for the Termination Fee set forth in Section 9.5(b) or the Parent Termination Fee set forth in Section 9.5(c), the Company or Parent, as applicable, shall pay to Parent or the Company, as applicable, their costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountsProceeding, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published set forth in The Wall Street Journal, calculated Eastern Edition, in effect on a daily basis the date such payment was required to be made from the date such amounts were payment was required to be paid until made through the date of actual payment.
(e) In the event that the Termination Fee is paid to Parent in circumstances in which such fee is payable pursuant to Section 9.5(b), payment of the Termination Fee, together with any costs and expenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of Parent and its Related Persons in such capacity against the Company and its Related Persons in such capacity (the “Company Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Merger or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of the Company or any Company Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided that nothing in this Section 9.5(e) shall relieve any Party of any liability or damages resulting from fraud or any Willful and Material Breach of this Agreement. The provisions of this Section 9.5(e) are intended to be for the benefit of, and shall be enforceable by, each of the Company Related Persons.
(f) In the event that the Parent Termination Fee is paid to the Company in circumstances in which such fee is payable pursuant to Section 9.5(c), payment of the Parent Termination Fee, together with any costs and expenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of the Company and its Related Persons in such capacity against Parent and its Related Persons in such capacity (the “Parent Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Merger or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of Parent or any Parent Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided that nothing in this Section 9.5(f) shall relieve any Party of any liability or damages resulting from fraud or any Willful and Material Breach of this Agreement. The provisions of this Section 9.5(f) are intended to be for the benefit of, and shall be enforceable by, each of the Parent Related Persons.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Offer and the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from any willful and material breach of this Section 8.02 and Section 9.01 Agreement and (ii) that the provisions set forth in Section 6.11 (Expenses), this Section 8.5, Article IX and the Confidentiality Agreement shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as follows:
terminated: (i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g); or
(ii) if this Agreement is terminated by (Ax) Parent pursuant to Section 8.01(b) or (B) by either Parent or the Company pursuant to Section 8.01(e8.2(a) or (y) Parent pursuant to Section 8.4(d) and in the case of any termination pursuant to connection with either clause (Ax) or (By) :
(A) 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 disclosed after the date of this Agreement hereof and not clearly withdrawn in good faith 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 Termination Date; and
(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 12 months after such termination of this Agreement, the Company or a Subsidiary any of the Company its Subsidiaries enters into an a definitive agreement with respect toto any Acquisition Proposal or consummates a transaction contemplated by any Acquisition Proposal (provided that for purposes of this clause (C), the references to “10%” and “15%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”) (any such agreement or consummatesconsummation, an “Acquisition ProposalEvent”), then the Company shall pay to Parent the Termination Fee (net within two business days of any payment made pursuant to clause (x) above) on the date of execution consummation 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.Event;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement hereto (or any of its directors, officers or Affiliates) shall have any liability or further obligation to any other party hereunder to this Agreement, except (i) as provided in Sections 3.22 and 4.6, the last sentence of Section 5.2, Article VII, Article VIII, and except to the extent that such termination results from the willful and material breach by a party of any of its representations, warranties, covenants or agreements set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum event of $7.5 million (the "Termination Fee") if termination of this Agreement is terminated as follows:
(i) if this Agreement is terminated pursuant to Section 7.1(c), or by Parent pursuant to Section 8.01(f(i) 7.2(a) as a result of a failure to satisfy the conditions in Sections 6.2(a) (to the extent such failure results from a breach by the Company of its representations and warranties hereunder), 6.2(b) or (g6.2(d)(ii); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) 7.2(b); or (Biii) 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 (B7.2(c), 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 shall, within five (5) business days thereafter, 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 immediately available funds to an account designated specified by ParentParent an amount equal to all documented out of pocket reasonable fees and expenses incurred by Parent and Merger Sub since January 1, 1999 (including the reasonable fees and expenses of counsel, accountants, consultants and advisors, and any commitment fees and other expenses paid to prospective lenders) in connection with this Agreement and the Transactions contemplated hereby (the "Parent Documented Expenses"); provided, however, the Parent Documented Expenses which the Company shall pay in the event of termination of this Agreement pursuant to Section 7.1(c) shall 36 not exceed $650,000 and the Parent Documented Expenses which the Company shall pay in the event of termination of this Agreement pursuant to Section 7.2 shall not exceed $500,000; and provided, further, that the Company shall not be obligated to pay any Parent Documented Expenses if (i) Parent or the Merger Sub shall have failed to comply in any material respect with any of the covenants or agreements contained in this Agreement such that the Closing condition set forth in Section 6.3(b) would not be satisfied; or (ii) there exists a breach of any one or more representations or warranties of Parent or the Merger Sub contained in this Agreement in any material respect such that the closing condition set forth in Section 6.3(a) would not be satisfied.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in In the event of a breach termination of this Agreement by the Company. If the Company fails pursuant to pay Parent the amounts due under paragraph (b) above within the time periods specified thereinSection 7.1(d), the Company shall shall, within five (5) business days thereafter, pay the costs and expenses (including reasonable legal fees and expenses) incurred Parent by wire transfer of immediately available funds to an account specified in writing by Parent a fee equal to the amount, if any, by which $3.25 million exceeds the fee payable in connection such event by Textron Inc. to Parent under the Voting Agreement to which Textron Inc. is a party (the "Termination Fee").
(d) To the extent that the Termination Fee has for any reason other than a material breach by Parent not already been paid and within twelve (12) months after the termination of this Agreement the Company or any of its Subsidiaries, or any Company Affiliate enters into a definitive agreement with any action in which Parent prevailsa Third Party with respect to a Takeover Proposal or a Takeover Proposal is effected, including then the filing of any lawsuitCompany shall, taken to collect payment within five (5) business days after the consummation of such amountsTakeover Proposal, together with interest on pay Parent by wire transfer of immediately available funds to an account specified in writing by Parent the amount of Termination Fee less any such unpaid amounts at Parent Documented Expenses previously paid by the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required Company to be paid until the date of actual paymentParent.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE VIII , no party to this Agreement shall have any become void and of no effect (except for Section 6.7(b), this Section 8.6 and ARTICLE IX) with no liability or further obligation to any other Person on the part of any party hereunder except hereto (i) as set forth in this or of any of its stockholders, Representatives or Affiliates), provided that, subject to the Reverse Termination Fee being paid pursuant to Section 8.02 and Section 9.01 and (ii) that termination will not 8.6(g), nothing herein shall relieve a breaching party the Company, Parent or Merger Sub from liability for any willful intentional breach of any covenant, agreement, representation hereof or warranty of this Agreement giving rise fraud prior to such termination.
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if If this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gSection 8.4(b); 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 immediately available funds funds), within two (2) business days after such termination, a non-refundable fee in an amount equal to an account designated by Parent$250,000,000 (“Termination Fee”).
(c) The If this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall pay to Parent (by wire transfer of immediately available funds), at or prior to such termination, the Termination Fee.
(d) If this Agreement is terminated (i) by Parent pursuant to Section 8.4(c) or (ii) by the Company or Parent pursuant to Section 8.2(a) (and the conditions set forth in Section 7.1(b) and Section 7.1(c) shall have been satisfied as of the End Date) or Section 8.2(c) hereof and, in the case of clauses (i) and (ii) immediately above, (A) prior to such termination (in the case of termination pursuant to Section 8.2(a) or 8.4(c)) or the Stockholders Meeting (in the case of termination pursuant to Section 8.2(c)), a Takeover Proposal shall have been publicly disclosed and not withdrawn (in the case of Section 8.2(c)) or communicated to the Company, the Company Board or been publicly disclosed and not withdrawn (in the case of Sections 8.2(a) or 8.4(c)), and (B) within twelve (12) months following the date of such termination of this Agreement the Company shall have (x) entered into a definitive agreement with respect to, (y) approved or recommended to the Company’s stockholders, or (z) consummated, a Takeover Proposal (in each case, whether or not such Takeover Proposal is the same as the original Takeover Proposal made, communicated or publicly announced), then the Company shall pay to Parent agree that (by wire transfer of immediately available funds), upon the earlier of the Company entering into the agreement contained in paragraph (b) with respect to such Takeover Proposal or the consummation of such transaction, the Termination Fee. For purposes of this Section 8.02 is 8.6(d), all references in the definition of Takeover Proposal to 20% shall be deemed to be references to “a majority.” The parties acknowledge and agree that in no event shall the Company be obligated to pay the Termination Fee on more than one occasion. The provisions of this Section 8.6(d) shall not apply if the provisions of Section 8.6(g) are applicable.
(e) The Company acknowledges and hereby agrees that the provisions of this Section 8.6 are an integral part of the transactions contemplated by this AgreementAgreement (including the Merger), that and that, without such agreement provisions, Parent and Merger Sub would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If the Company fails shall fail to pay Parent in a timely manner the amounts due under paragraph (b) above within pursuant to this Section 8.6, and, in order to obtain such payment, Parent makes a claim against the time periods specified thereinCompany that results in a judgment against the Company, the Company shall pay to Parent the reasonable and documented out-of-pocket costs and expenses of Parent (including its reasonable legal attorneys’ 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 amountssuit, together with interest on the amount of any such unpaid amounts set forth in this Section 8.6 at the prime lending rate prevailing during of Citibank, N.A. in effect on the date such period as published in The Wall Street Journal, payment was required to be made plus 1% per annum. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, and on the basis of a 360-day year.
(f) If this Agreement is terminated and the Termination Fee is payable to Parent as a result thereof, in addition to the payment of the Termination Fee, the Company shall reimburse Parent and Merger Sub for all expenses in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $10,000,000 incurred by Parent and Merger Sub (the “Expense Fee”) which Expense Fee shall be payable at the same time as the Termination Fee. For purposes of the preceding sentence, expenses means all reasonable and documented out-of-pocket expenses (including all reasonable fees and expenses of outside counsel, accountants, financing sources, investment bankers, experts and consultants) incurred in connection with or related to the due diligence, authorization, preparation, negotiation, execution and performance of this Agreement, the obtaining of the financing for the Merger, and all other matters related to the consummation of the Merger.
(g) In the event that (i) this Agreement is terminated by Parent or (ii) the Merger has not been consummated by the End Date, except in either case under circumstances where the Board of Directors of Parent has determined in accordance with its good faith business judgment that Parent is permitted under this Agreement to terminate this Agreement or is not required to consummate the Merger prior to the End Date, then Parent shall promptly following receipt of written notice from the Company requesting such payment, pay the Company a non-refundable fee equal to $200,000,000 (the "Reverse Termination Fee"), payable by wire transfer of same day funds to an account designated in writing to Parent by the Company. The Reverse Termination Fee shall be the Company's exclusive remedy for damages in circumstances where it is applicable (unless in any such circumstance it is requested in accordance with the preceding sentence but not paid, in which event the Company shall be entitled to elect to seek either the Reverse Termination Fee or, subject to the last sentence of Section 9.8, damages (but not both)); and, once paid, the Company shall have no right to specific performance under Section 9.9, it being understood that if the Merger is not consummated because Parent has not obtained the Requisite Transaction Funds or under circumstances where the Board of Directors of Parent has not made the foregoing determination, the Company may elect to seek specific performance under Section 9.9 in lieu of requesting payment of the Reverse Termination Fee or seeking damages if the Reverse Termination Fee is requested but not paid. For the avoidance of doubt, (i) the Reverse Termination Fee will not be payable if the Merger is not consummated as a result of antitrust related matters, including Parent's breach of its obligations under Section 6.5 with respect to using its reasonable best efforts to obtain antitrust clearance for the Merger, but, in the event of such breach, the Company shall be entitled to seek damages or specific performance under Section 9.9, and (ii) if a determination by the Board of Directors of Parent referred to in the first sentence of this paragraph is shown by final judicial determination to not have been a good faith business judgment (including, for example, if made under circumstances where the Merger is not consummated because Parent has not obtained the Requisite Transaction Funds), the Company shall be entitled to elect to be paid the Reverse Termination Fee in accordance with the first sentence of this paragraph.
(h) Parent and Merger Sub acknowledge and hereby agree that the provisions of this Section 8.6 are an integral part of the transactions contemplated by this Agreement (including the Merger), and that, without such provisions, the Company would not have entered into this Agreement. If Parent shall fail to pay in a timely manner the amounts due pursuant to this Section 8.6, and, in order to obtain such payment, the Company makes a claim against Parent that results in a judgment against Parent, Parent shall pay to the Company the reasonable and documented out-of-pocket costs and expenses of the Company (including its reasonable attorneys' fees and expenses) incurred in connection with such suit, together with interest on the amounts set forth in this Section 8.6 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made plus 1% per annum. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, and on the basis of a 360-day year.
(i) If this Agreement is terminated and the Reverse Termination Fee is payable to the Company as a result thereof, in addition to the payment of the Termination Fee, the Parent shall reimburse the Company for all expenses in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $10,000,000 incurred by the Company (the “Company Expense Fee”) which Company Expense Fee shall be payable at the same time as the Reverse Termination Fee. For purposes of the preceding sentence, expenses means all reasonable and documented out-of-pocket expenses (including all reasonable fees and expenses of outside counsel, accountants, financing sources, investment bankers, experts and consultants) incurred in connection with or related to the due diligence, authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of the Requisite Company Vote, and all other matters related to the consummation of the Merger.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) through (e) directly below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any Party (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) subject to clause (d) directly below, no such termination shall relieve any Party of any liability or further obligation damages to the other Party resulting from any other party hereunder except (i) as set forth in Willful Breach of this Section 8.02 and Section 9.01 Agreement and (ii) that this Section 9.5 and Article X shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million event that
(the "Termination Fee"i) if this Agreement is terminated as follows:
(iA)(I) if this Agreement is terminated by Parent either Clover or Moon pursuant to (x) Section 9.2(a) or (y) Section 9.2(b) or (II) by Moon pursuant to Section 8.01(f) or (g9.4(b); or
and (iiB)(I) if this Agreement before receipt of the Clover Stockholder Approval a Competing Proposal has been publicly made or disclosed with respect to Clover and, except where the Person who made such Competing Proposal or its Affiliates is terminated by (A) Parent pursuant a party to Section 8.01(b) or (B) by either Parent or the Company pursuant to Section 8.01(e) and Competing Proposal contemplated in the case of any termination pursuant to clause (AB)(II) or has not been withdrawn (B1) 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, Outside Date in the case of clause (BA)(I)(x), or (2) at least two (2) Business Days prior to the date of termination, Clover Stockholder Meeting in the case of clause (A), then A)(I)(y) or (x3) at least two (2) Business Days prior to the Company shall pay to Parent an amount equal to $1.0 million on date of termination in the second Business Day following case of clause (A)(II) and (II) within twelve months of such termination, and (y) if within 18 months after such termination the Company or a Subsidiary of the Company enters Clover shall have entered into an agreement Alternative Acquisition Agreement with respect to, to or consummates, an Acquisition consummated any Competing Proposal, (substituting “50%” for each reference to “20%” in the definition of “Competing Proposal”);
(ii) this Agreement is terminated by Moon pursuant to Section 9.4(a); or
(iii) this Agreement is terminated by Clover pursuant to Section 9.3(a); then the Company Clover shall pay to Parent Moon (or its designee(s)) a termination fee of $176,000,000 (the “Termination Fee Fee”) (net of less any payment made amounts paid pursuant to clause (xSection 9.5(e)) above) by wire transfer of same-day funds, such payment to be made on the date of execution of such agreement entry into an Alternative Acquisition Agreement or consummation of a Competing Proposal (whichever is earlier) in the case of clause (i) above, within three Business Days after such termination in the case of clause (ii) above, and prior to or concurrently with termination in the case of clause (iii) above.
(c) Each of the Parties acknowledges and agrees that the covenants and obligations contained in this Section 9.5 are an Acquisition Proposalintegral part of the transactions contemplated by this Agreement, and that, without these covenants and obligations, the Parties would not have entered into this Agreement and that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Moon and SpinCo in the circumstances in which such Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement, the Separation and Distribution Agreement and the other Transaction Documents and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby and by the Transaction Documents, which amount would otherwise be impossible to calculate with precision. In the event that Clover fails to promptly pay when due the Termination Fee pursuant to Section 9.5(b) and, in order to obtain such payment Moon commences a Proceeding that results in a judgment against Clover for payment of the Termination Fee, Clover shall pay to Moon its costs and expenses (including reasonable attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee at the prime rate set forth in the Wall Street Journal, Eastern Edition, 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.
(d) The Parties acknowledge and agree that in no event shall Clover be required to pay the Termination Fee on more than one occasion. Notwithstanding anything in this Agreement to the contrary, upon payment of the Termination Fee in accordance with Section 9.5(b), neither Clover nor Merger Sub shall have no further liability to Moon or SpinCo with respect to this Agreement, the Separation and Distribution Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby; provided, however, that payment by Clover of the Termination Fee shall not relieve Clover from any liability or damages resulting from any Willful Breach of this Agreement.
(e) If this Agreement is terminated pursuant to Section 9.2(b), Clover shall pay to Moon its Expenses in an amount not to exceed $35,000,000. Any amount that becomes payable pursuant to Expenses of Moon due under this Section 8.02(b9.5(e) shall be paid by wire transfer of immediately available funds to no later than two (2) Business Days after receipt by Clover of an account designated by Parentitemized statement identifying such Expenses.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 8.5(b) or in the proviso at the end of this sentence) on the part of any party to this Agreement or of any of its directors, officers, employees, agents, legal or financial advisors or other representatives; provided, however, no such termination shall have relieve any party to this Agreement from any liability for damages or further obligation to other relief resulting from any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) an Acquisition Proposal shall have been made to the Company and made known to shareholders of the Company generally or have been made directly to shareholders of the Company generally or any Person shall pay Parent have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and such Acquisition Proposal or announced intention shall not have been withdrawn prior to the sum of $7.5 million (Shareholders Meeting and thereafter, there is a failure to obtain the "Termination Fee") if Company Requisite Vote at the Shareholders Meeting, and 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(e8.2(ii) 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 12 months after such termination the Company or a Subsidiary of the Company enters shall have entered into an agreement (a "Subsequent Agreement") to consummate a transaction that would constitute an Acquisition Proposal if it were the subject of a proposal or (ii) this Agreement is terminated (x) by the Company pursuant to Section 8.3(a) or (y) by Parent prior to the Shareholders Meeting pursuant to Section 8.4(a) or at any time pursuant to Section 8.4(b) (solely with respect to, or consummates, an Acquisition Proposalto a breach of Section 6.2), then the Company shall pay to Parent the Termination Fee (net of any payment made pursuant to clause (x) above) on promptly, but in no event later than two days after the date of execution such termination (except as otherwise provided in Section 8.3(a)), or, in the case of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable termination pursuant to this Section 8.02(b) 8.5(b)(i), two days after a Subsequent Agreement is entered into, pay Parent a fee equal to $300 million (the "Termination Fee"), which amount shall be exclusive of any expenses to be paid pursuant to Section 6.11, payable by wire transfer of immediately available funds to an account designated by Parent.
(c) same day funds. The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 Agreement; accordingly, if the Company fails to pay promptly the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the amounts due under Company for the fee set forth in this paragraph (b) above within the time periods specified therein), the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The In recognition of the efforts, expenses and other opportunities foregone by the Purchasers while structuring and pursuing the Merger, the parties hereto agree that the Company shall pay Parent to the sum Purchasers, without duplication, a termination fee of $7.5 million 1,750,000 (the "“Termination Fee") if this Agreement is terminated ”), as followsset forth below, if:
(i) if this Agreement is terminated by Parent either of the Purchasers 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(e8.01(g) 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 a definitive agreement with respect to, or consummates, to an Acquisition Proposal, then Transaction within twelve months after the Company shall pay to Parent the Termination Fee (net termination of any payment made pursuant to clause (x) above) on the date of execution of such agreement or consummation of an Acquisition Proposalthis Agreement. Any amount that becomes The termination fee payable pursuant to under this Section 8.02(b8.02(b)(i) shall be paid paid, without duplication, by wire transfer of immediately available funds to an account designated by Parentthe Purchasers within two (2) Business Days of the date the Company enters into a definitive agreement with respect to an Acquisition Transaction; or
(ii) this Agreement is terminated by the Company pursuant to Section 8.01(i). Amounts that become payable pursuant to this Section 8.02(b)(ii) shall be paid, without duplication, by wire transfer of immediately available funds to an account designated by the Purchasers within five (5) Business Days of the date this Agreement is terminated.
(c) In further recognition of the efforts, expenses and other opportunities foregone by the parties while structuring and pursuing the Merger, the parties hereto agree that:
(i) if this Agreement is terminated by either of the Purchasers pursuant to Section 8.01(e) or by either of the Purchasers or the Company pursuant to Section 8.01(c), then the Company shall pay to the Purchasers, without duplication, a termination reimbursement amount equal to the aggregate amount of all reasonable, documented, out-of-pocket costs and expenses incurred by the Purchaser and the Purchaser Parent solely and directly in connection with the execution, delivery and performance of this Agreement by the Purchaser and the Purchaser Parent (the “Purchaser Termination Reimbursement Amount”);
(ii) if this Agreement is terminated (A) by either of the Purchasers pursuant to Section 8.01(h), (with the parties expressly acknowledging that the Company is presently licensed in all jurisdictions identified in Schedule II) unless the Purchasers can establish that such approvals were denied or applications were withdrawn, as the case may be, solely because of information pertaining to, or a fact or circumstance relating to, the Company or any of its respective officers as of the date hereof, shareholders as of the date hereof, directors as of the date hereof or any of their affiliated Persons or affiliated individuals, or (B) by the Company pursuant to Section 8.01(e), then the Purchasers shall pay to the Company, without duplication, the aggregate amount of all reasonable, documented, out-of-pocket costs and expenses incurred by the Company solely and directly in connection with the execution, delivery and performance of this Agreement by the Company (the “Company Termination Reimbursement Amount”); and
(iii) if this Agreement is terminated by either of the Purchasers or the Company pursuant to Section 8.01(f) and, as of the dates set forth in Section 8.01(f), unless Purchasers can establish that the licensing approvals shall not have been obtained as provided in Section 8.01(h) for reasons solely attributable to information pertaining to, or a fact or circumstance relating to, the Company, or any of its respective officers as of the date hereof, shareholders as of the date hereof, directors as of the date hereof or any of their affiliated Persons or affiliated individuals, then the Purchasers shall pay to the Company, without duplication, the Company Termination Reimbursement Amount. Any amount that becomes payable pursuant to this Section 8.02(c) shall be paid, without duplication, by wire transfer of immediately available funds, to an account designated by the party(ies) to whom such amount is due, within two (2) Business Days of the date that the documentation of costs and expenses contemplated hereby is delivered to the party required to make payment hereby.
(d) The Company and Parent the Purchasers agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, and that without such agreement Parent the Purchasers would not have entered into this Agreement. Notwithstanding anything contained in this Agreement and that such amounts do not constitute a penalty or liquidated damages to the contrary, in the event of a breach of that this Agreement is terminated pursuant to Section 8.02(b), the payment of the amounts contemplated in Section 8.02(b) is intended by the Companyparties to be, and shall constitute, liquidated damages and shall be the sole and exclusive remedy and shall be in lieu of any and all claims that the Purchasers and their respective officers, directors, partners and stockholders have, or might have, against the Company and its officers, directors and shareholders for any claims arising from, or relating in any way to, this Agreement or the Merger, and the Purchasers and their respective officers, directors, partners and shareholders shall not have any other rights or claims against the Company and its officers, directors and shareholders. If the Company fails to pay Parent the Purchasers the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent the Purchasers in connection with any action in which Parent prevailsthe Purchasers prevail, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
(e) The Company and the Purchasers agree that the agreements contained in paragraph (c) of this Section 8.02 are an integral part of the transactions contemplated by this Agreement, that without such agreement the parties would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event that this Agreement is terminated pursuant to Section 8.02(c). If the party(ies) owing the Purchaser Termination Reimbursement Amount or the Company Termination Reimbursement Amount, as applicable, fail(s) to pay the other party(ies) the amounts due under paragraph (c) above within the time periods specified therein, the party(ies) owing the applicable Purchaser Termination Reimbursement Amount or Company Termination Reimbursement Amount shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by the other party(ies) in connection with any action in which the other party(ies) prevail(s), including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except hereto resulting from any willful material breach of this Agreement and (iii) as the provisions set forth in this Section 8.02 8.5 and the second sentence of Section 9.01 and (ii) that 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if an Acquisition Proposal shall have been made to the 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 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 at least (A) ten (10) business days prior to, with respect to any termination pursuant to Section 8.2(a), the Termination Date, and (B) with respect to termination pursuant to Section 8.2(b), at least 10 business days prior to the date of the Stockholders Meeting) and thereafter 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(e8.2(a) and in the case of any termination (Termination Date) or 8.2(b) (No Stockholder Approval);
(ii) this Agreement is terminated (A) by Parent pursuant to clause Section 8.4(a), (Ab), (c) or (d) or (B) an Acquisition Proposal by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a), (c) or (d) shall have been publicly announced or otherwise communicated or made known to occurred; or
(iii) this Agreement is terminated by the Company Board pursuant to Section 8.3(a) (Fiduciary Out), then in any case of Section 8.5(b)(i), (ii) or any Person (iii) the Company shall have publicly announcedpromptly, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time but in no event later than two days after the date of this Agreement and prior such termination, pay Parent a termination fee of $14,500,000 (the “Termination Fee”) (provided, however, that the Termination Fee to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of be paid pursuant to clause (Biii) shall be paid as set forth in Section 8.3); provided, or the date however, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and until within 12 months of such termination, in the case of clause (A), then (x1) the Company or any of its Subsidiaries 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 have entered into an agreement Alternative Acquisition Agreement with respect to, or consummatesshall have consummated or shall have approved or recommended to the Company’s stockholders an Acquisition Proposal or (2) there shall have been consummated an Acquisition Proposal (substituting in both instances “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition ProposalProposal shall not be deemed to have been “publicly withdrawn” by any Person if, then within 12 months of such termination, the Company or any of its Subsidiaries shall pay have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved or recommended to Parent the Termination Fee (net of any payment Company’s stockholders or otherwise not opposed, an Acquisition Proposal made pursuant to clause (x) above) by or on the date of execution behalf of such agreement Person or consummation any of an Acquisition Proposalits Affiliates. Any amount The Company acknowledges that becomes payable pursuant to the agreements contained in this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 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, Parent or Merger Sub commences a suit that results in a judgment against the amounts due under paragraph (bCompany for the fee set forth in this Section 8.5(b) above within the time periods specified thereinor any portion of such fee, the Company shall pay the to Parent or Merger Sub its out-of-pocket costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual 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 for monetary damages under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Bowne & Co Inc)
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 8.5 and the second sentence of Section 9.01 9.1) shall become void and of no effect with no liability on the part of any party hereto (ii) or of any of its directors, officers, employees, agents, legal or financial advisors or other representatives); provided, however, that no such termination will not shall relieve a breaching any party hereto from any liability for damages to any other party resulting from any prior willful or intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise or from any obligation to such terminationpay, if applicable, the fees and reimbursement of expenses in accordance with Section 6.11 or Section 8.5(b).
(b) The Company shall pay Parent the sum of $7.5 million If (the "Termination Fee"i) if this Agreement is terminated as follows:
(iA) if this Agreement is terminated by the Company pursuant to Section 8.3(b), (B) by Parent pursuant to Section 8.01(f8.4(a), (C) or (g); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or 8.4(c), (BD) by either Parent or the Company pursuant to Section 8.01(e8.2(a) (if a vote to obtain the Company Requisite Vote at the Shareholders Meeting has not been taken prior to such termination), or (E) by Parent or the Company pursuant to Section 8.2(b), and (ii) in the case of any termination pursuant referred to clause in clauses (Ai)(C), (i)(D) or (Bi)(E) an of this sentence, prior to any such termination, but after the date of this Agreement a bona fide Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company Board (or any of its Subsidiaries or have been made directly to the Company’s shareholders generally or any Person shall have publicly announced, communicated or made known announced an intention, whether or not conditional, intention to make an a bona fide Acquisition Proposal) at any time Proposal with respect to the Company and such Acquisition Proposal shall not have been withdrawn prior to the date of such termination and if on or within 12 months after the date of this Agreement and prior to the taking of the vote of the shareholders of a termination the Company contemplated by this Agreement at the Company Meeting, in the case of clause (B), consummates an Acquisition Proposal or the date of termination, in the case of clause (A)enters into a definitive agreement with respect to an Acquisition Proposal, then (x) in the case of clauses (i)(C), (i)(D), and (i)(E), the Company shall pay promptly, but in no event later than two days after the date of the consummation of such Acquisition Proposal or the execution of a definitive agreement with respect to Parent an amount equal to $1.0 million on the second Business Day following such terminationAcquisition Proposal, and (y) if within 18 months after such termination in the Company or a Subsidiary case of the Company enters into an agreement with respect toclauses (i)(A) and (i)(B), or consummates, an Acquisition Proposal, then the Company shall prior to or simultaneous with such termination, pay Parent a fee equal to Parent Twelve Million Dollars ($12,000,000) (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 Fee”), payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that same day funds. For the agreement contained in paragraph (b) purposes of this Section 8.02 is 8.5(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(b), except that the reference to 20% therein shall be deemed to be a reference to “more than 50%”. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, that that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this Agreement Agreement, and that such any amounts do payable pursuant to this Section 8.5(b) is not constitute a penalty or liquidated damages in penalty. In the event that Parent or Merger Sub commences a suit to obtain payment of a breach of any amount due pursuant to this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified thereinSection 8.5(b), the Company shall pay the costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent of the prevailing party in connection with any action in which Parent prevails, including such suit shall be paid to the filing of any lawsuit, taken to collect payment of such amountsprevailing party by the other party, together with interest on the any amount of any such unpaid amounts the Termination Fee that is not paid when due for the period of non-payment at a rate per annum equal to 3% over the prime lending rate prevailing during such period as published of SunTrust Bank, Atlanta, Georgia, in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were required to be paid until payment should have been made if Parent is the date of actual paymentprevailing party.
Appears in 1 contract
Sources: Merger Agreement (Talx Corp)
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 and (ii) that termination will not relieve a breaching party from of no effect with no liability for any willful breach on the part of any covenantparty hereto (or of any of its directors, agreementofficers, representation employees, agents, legal and financial advisors or warranty other representatives); provided, however, that no such termination shall relieve any party hereto of any liability or damages resulting from any deliberate breach of this Agreement occurring prior to such termination. The parties further agree that if the Company is or becomes obligated to pay a termination fee pursuant to Section 8.5(b), the right of Parent to receive such termination fee shall be the sole remedy for damages of Parent with respect to the facts and circumstances giving rise to such terminationpayment obligation except for any deliberate breach of this Agreement. No party may assert a claim for damages for any inaccuracy of any representation or warranty contained in this Agreement (whether by direct claim or counterclaim) except in connection with the termination of this Agreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) 8.4(a), 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 8.3(b), then the Company Board (or any Person shall have publicly announcedshall, communicated or made known an intentionpromptly, whether or not conditional, to make an Acquisition Proposal) at any time but in no event later than one business day after the date of such termination, pay Parent a termination fee of one hundred and forty million dollars ($140,000,000) (the "Termination Fee") and shall promptly, but in no event later than one business day after being notified of the amount of all documented out-of-pocket charges and expenses incurred by Parent or Merger Sub in connection with this Agreement and prior to the taking of the vote of the shareholders of the Company transactions contemplated by this Agreement at up to a maximum of five million dollars ($5,000,000) ("Out-of-Pocket Expenses"), pay to Parent an amount equal to the Out-of-Pocket Expenses, in each case payable by wire transfer of same day funds. In the event that (i) this Agreement is terminated by Parent or EXECUTION COPY the Company Meetingpursuant to Section 8.2(b) or (ii) this Agreement is terminated by Parent pursuant to Section 8.4(b), then (A) the Company shall promptly, but in no event later than one business day after being notified of the Out-of-Pocket Expenses by Parent, pay to Parent an amount equal to the Out-of-Pocket Expenses, payable by wire transfer of same day funds and (B) if, in the case of clause (Bi), a bona fide Acquisition Proposal shall have become public or any Person shall have publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal prior to the date of terminationthe Shareholders Meeting or if, in the case of clause (Aii), then (xthis Agreement is terminated by Parent pursuant to Section 8.4(b) as a result of a deliberate breach by the Company and a bona fide Acquisition Proposal shall pay have been made to Parent the Company or become public or any Person shall have announced to the Company or publicly announced an amount equal intention (whether or not conditional) to $1.0 million on make a proposal or offer relating to an Acquisition Proposal prior to the second Business Day following such date of termination, and in the case of each of clause (yi) if and clause (ii), within 18 fifteen (15) months after such termination from the date of termination, the Company executes and delivers a definitive agreement with respect to any Acquisition Proposal or a Subsidiary an Acquisition Proposal is consummated (it being understood that in the event the board of directors of the Company enters into recommends the acceptance by the shareholders of the Company of a third-party tender offer or exchange offer for at least a majority of the outstanding Shares, such recommendation shall be treated as though an agreement with respect to, or consummates, to an Acquisition ProposalProposal had been executed), then the Company shall promptly, but in no event later than one business day after the date of such execution and delivery, or consummation, as the case may be, pay to Parent the Termination Fee (net of any payment made pursuant to clause (x) above) on Fee. The Company acknowledges that the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable pursuant to agreements contained in this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 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, Parent or Merger Sub commences a suit which results in a judgment against the amounts due under Company for the fee set forth in this paragraph (b) above within the time periods specified therein), the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Sources: Merger Agreement (Ing Groep Nv)
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 8.5 and Section 9.01 9.1) shall become void and of no effect with no liability on the part of any party hereto (ii) or of any of its representatives); provided, however, that no such termination will not shall relieve a breaching any party hereto from any liability for damages to any other party resulting from any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise or from any obligation to such terminationpay, if applicable, any amount payable pursuant to this Section 8.5.
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if If this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.4(b); 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 promptly, but in no event later than two business days after the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes termination, pay Parent a fee equal to $100 million, payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available same day funds to an account designated by Parent.
(c) If this Agreement is (i) terminated by the Company pursuant to Section 8.3(b), then the Company shall pay Parent a fee equal to $85 million (the “Termination Fee”) at the time set forth in Section 8.3(b), payable by wire transfer of same day funds to an account designated by Parent (it being understood and agreed that Parent shall provide the Company with wire transfer instructions for the payment of the Termination Fee within one calendar day after receipt of the notice contemplated by Section 8.3(b)(ii)), or (ii) terminated by Parent pursuant to Section 8.4(c), then the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent the Termination Fee, payable by wire transfer of same day funds to an account designated by Parent.
(d) For the avoidance of doubt, in no event shall the Company be required to pay both the Termination Fee and the fee contemplated by Section 8.5(b) or to pay the Termination Fee on more than one occasion. The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If Accordingly, if the Company fails to pay promptly any amount due pursuant to this Section 8.5, and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the amounts due under paragraph (b) above within the time periods specified thereinCompany, the Company shall pay the to Parent and Merger Sub their costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were required to be paid until the date of actual paymentpayment should have been made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 subsections (b) and (iic) below and in Section 9.01, and except that termination will shall not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty this Agreement. In the event of termination of this Agreement giving rise by either Parent or Company pursuant to such terminationSection 8.01 hereof, the terminating party shall give prompt written notice thereof to the non-terminating party.
(b) The Company shall pay Parent the sum of $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 and 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 agree that the Company shall pay to Parent the sum of $10,000,000 (the "TERMINATION FEE") solely if the Company or Parent terminates this Agreement pursuant to: (i) Section 8.01(d)(iv) or (ii) Section 8.01(e).
(c) The Termination Fee (net of any payment made required to be paid 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 payable by the Company to Parent on the same day as the termination referred to therein and payment of such Termination Fee shall be a condition precedent to the effectiveness of any termination by the Company. Notwithstanding the foregoing, (i) in no event shall more than one Termination Fee be payable and (ii) Parent may elect, by notice to the Company, to defer the payment of the Termination Fee from time to time for a period or periods of up to an aggregate of twelve months after the date such fee would otherwise be payable. In the event that the Company shall fail to pay any Termination Fee when due in accordance with this Article VIII, the amount of any such Termination Fee shall be increased to include the costs and expenses actually incurred (including, without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.02. All payments under this Section 8.02 shall be made by wire transfer of immediately available funds to an account designated by Parent.
(cd) The Upon termination of this Agreement, except for any amounts payable by the Company and Parent agree that the agreement contained in paragraph (b) of pursuant to this Section 8.02 is an integral part of the transactions and except as otherwise contemplated by this AgreementSection 8.02, that without such agreement Parent would not have entered into this Agreement shall become void and that have no effect, without any liability on the part of any party hereto or its Affiliates, directors, officers or stockholders; provided that, notwithstanding the foregoing, this shall not relieve a breaching Party from liability for an uncured willful breach of a representation, warranty or covenant or agreement giving rise to such amounts do not constitute a penalty or liquidated damages in termination. In the event of a breach of claim is made against a party under this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified thereinSection 8.02(d), the Company non-prevailing party shall pay reimburse the prevailing party for its reasonable costs and expenses (including reasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevails, including a claim made against the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentother party under this Section 8.02(d).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than as set forth in Section 6.2 (as to the Parent-Company standstill agreement), Section 6.11, this Section 8.5 and Article IX) shall have 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 or financial advisors or other representatives); provided, however, that no such termination shall relieve any party hereto from any liability or further obligation for damages to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party resulting from liability for any prior willful or intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise or from any obligation to such terminationpay, if applicable, the fees and reimbursement of expenses in accordance with Sections 6.11, 8.5(b) or 8.5(c).
(b) The If this Agreement is terminated by the Company pursuant to Section 8.3(b), the Company shall pay to Parent the sum of a fee equal to $7.5 million 1.7 billion (the "Termination Fee") if this Agreement is terminated as follows:
(i) if at the time set forth in Section 8.3(b). If this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(c) or the Company shall promptly, but in no event later than two days after such termination, pay to Parent the Termination Fee by wire transfer of same day funds. If (g); or
(iii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (Bx) by either Parent or the Company pursuant to Section 8.01(e8.2(b) or (y) by Parent pursuant to Section 8.4(a) or pursuant to Section 8.4(b) (solely with respect to a willful and intentional breach), (ii) in the case of any termination pursuant to clause (Ax), prior to the vote on adoption of this Agreement at the Company Shareholders Meeting, but after the date of this Agreement, one or more bona fide Acquisition Proposals (other than from Parent or any of its Subsidiaries) involving 50% or more of the outstanding Company Shares or assets of the Company (including its interests in Cingular) representing 50% or more of the fair market value of the consolidated assets of the Company (including its interests in Cingular) or otherwise involving a transaction or series of transactions that could reasonably be expected to result in value to holders of Company Shares comparable to or more favorable than the transactions contemplated by this Agreement (Ba "Covered Proposal") 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 announced an intention, intention (whether or not conditional, ) to make an Acquisition Proposal) at any time a Covered Proposal and, in the case of clause (y), a Covered Proposal shall have been made after the date of this Agreement and prior (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its affiliates or the Company and any of its Subsidiaries) (an "Acquiring Person") has acquired, or has entered into an agreement to the taking acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the vote of the outstanding Company Shares (or shareholders of the Company contemplated by this Agreement immediately prior to such transaction cease to hold at least 50% of the Company Meeting, in the case of clause Shares (B), or the date of termination, in the case of clause (A), then (xany successor shares) 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 transaction) or at least 50% of the fair market value of the Company's consolidated assets (including its interests in Cingular) or the Company or a Subsidiary one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of the Company's consolidated assets or the Company enters or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that in, one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into an agreement with respect to, or consummates, an Acquisition Proposalaccount in determining if the completed transaction is substantially similar), then the Company shall promptly, but in no event later than two days after the completion of such transaction or the time such agreement is entered into as the case may be, pay to Parent the Termination Fee (net of less any payment made amounts reimbursed to Parent pursuant to clause (x) above) on the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes next sentence), payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds same day funds. If this Agreement is terminated by Parent or the Company pursuant to an account designated Section 8.2(b) or by Parent pursuant to Section 8.4(a), then the Company shall promptly, but in no event later than two days after a request from Parent.
, reimburse Parent for all fees and expenses (cup to a maximum of $120 million) incurred by Parent and its Subsidiaries (plus 60% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 Agreement; accordingly, if the Company fails to pay promptly the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinfee set forth in this Section 8.5(b), the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were required payment should have been made.
(c) If (i) this Agreement is terminated by Parent or the Company pursuant to be paid until Section 8.2(c) or by the Company pursuant to Section 8.3(a), (ii) prior to Parent Stockholders Meeting, but after the date of actual this Agreement, a Covered Proposal (for this purpose substituting therein Parent for each reference to the Company and Parent Common Stock for each reference to Company Shares and disregarding the second proviso in the definition of "Acquisition Proposal" and substituting "Section 6.1(b)(viii)" for "Section 6.1(a)(ix) or (xiii)" in the definition of "Acquisition Proposal") other than any such Acquisition Proposal from the Company or any of its Subsidiaries (a "Parent Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make a Parent Covered Proposal and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its Subsidiaries or the Company and any of its Subsidiaries) (a "Parent Acquiring Person") has acquired, or has entered into an agreement to acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding shares of Parent Common Stock (or stockholders of Parent immediately prior to such transactions cease to hold at least 50% of the shares of Parent Common Stock (or successor shares) after such transaction) or at least 50% of the fair market value of Parent's consolidated assets (including its interest in Cingular) or Parent or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of Parent's consolidated assets or Parent or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that, in one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into account in determining if the completed transaction is substantially similar), then Parent shall promptly, but in no event later than two days after the date of consummation of such acquisition or at the time such agreement is entered into, as the case may be, pay to the Company the Termination Fee (less any amounts reimbursed to the Company pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), then Parent shall promptly, but in no event later than two days after a request from the Company, reimburse the Company for all fees and expenses (up to a maximum of $120 million) incurred by the Company and its Subsidiaries (plus 40% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. 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 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 Parent for the fee or reimbursement set forth in this Section 8.5(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 should have been made.
Appears in 1 contract
Sources: Merger Agreement (Bellsouth Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 7.2 and in Section 7.3, Section 8.1, Section 8.7, Section 8.11 and Section 9.01 8.14) shall become void and of no effect with no liability on the part of any party hereto (ii) or of any of its directors, officers, employees, agents, legal or financial advisors or other representatives); provided, however, that no such termination will not shall relieve a breaching any party hereto from any liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company In the event that EDI desires to terminate this Agreement pursuant to Section 7.1(g), then EDI shall first pay Parent the sum of Bowm▇▇ ▇ ▇ee equal to $7.5 million 500,000 (the "Termination Fee") if ), payable by wire transfer of same day funds. In the event that Bowm▇▇ ▇▇▇minates this Agreement is terminated as follows:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g7.1(e); 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 , then EDI shall promptly, but 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 no event later than two business days 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 topay Bowm▇▇ ▇▇▇ Termination fee, 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 immediately available funds same day funds. Notwithstanding anything herein to an account designated by Parent.
(c) The Company and Parent agree the contrary, in no event shall EDI be required to pay the Termination fee to Bowm▇▇ ▇▇▇e than once. EDI acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 7.2(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent would these agreements, Bowm▇▇ ▇▇▇ld not have entered enter into this 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 Agreement; accordingly, if EDI fails to promptly pay Parent the amounts amount due under pursuant to this Section 7.2(b), and, in order to obtain such payment, Bowm▇▇ ▇▇▇mences a suit which results in a judgment against EDI for the Termination Fee set forth in this paragraph (b) above within the time periods specified therein), the Company EDI shall also pay the to Bowm▇▇ ▇▇▇ costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the Termination Fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made.
(c) In the event that Bowm▇▇ ▇▇▇ires to 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 actual 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 Section 7.2(c), and, in order to obtain such payment, EDI commences a suit which results in a judgment against Bowm▇▇ ▇▇▇ the Termination Fee set forth in this paragraph (c), Bowm▇▇ ▇▇▇ll also pay to EDI its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the Termination Fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than as set forth in Section 6.2 (as to the Parent-Company standstill agreement), Section 6.11, this Section 8.5 and Article IX) shall have 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 or financial advisors or other representatives); provided, however, that no such termination shall relieve any party hereto from any liability or further obligation for damages to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party resulting from liability for any prior willful or intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise or from any obligation to such terminationpay, if applicable, the fees and reimbursement of expenses in accordance with Sections 6.11, 8.5(b) or 8.5(c).
(b) The If this Agreement is terminated by the Company pursuant to Section 8.3(b), the Company shall pay to Parent the sum of a fee equal to $7.5 million 1.7 billion (the "Termination Fee") if this Agreement is terminated as follows:
(i) if at the time set forth in Section 8.3(b). If this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(c) or the Company shall promptly, but in no event later than two days after such termination, pay to Parent the Termination Fee by wire transfer of same day funds. If (g); or
(iii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (Bx) by either Parent or the Company pursuant to Section 8.01(e8.2(b) or (y) by Parent pursuant to Section 8.4(a) or pursuant to Section 8.4(b) (solely with respect to a willful and intentional breach), (ii) in the case of any termination pursuant to clause (Ax), prior to the vote on adoption of this Agreement at the Company Shareholders Meeting, but after the date of this Agreement, one or more bona fide Acquisition Proposals (other than from Parent or any of its Subsidiaries) involving 50% or more of the outstanding Company Shares or assets of the Company (including its interests in Cingular) representing 50% or more of the fair market value of the consolidated assets of the Company (including its interests in Cingular) or otherwise involving a transaction or series of transactions that could reasonably be expected to result in value to holders of Company Shares comparable to or more favorable than the transactions contemplated by this Agreement (Ba "Covered Proposal") 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 announced an intention, intention (whether or not conditional, ) to make an Acquisition Proposal) at any time a Covered Proposal and, in the case of clause (y), a Covered Proposal shall have been made after the date of this Agreement and prior (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its affiliates or the Company and any of its Subsidiaries) (an "Acquiring Person") has acquired, or has entered into an agreement to the taking acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the vote of the outstanding Company Shares (or shareholders of the Company contemplated by this Agreement immediately prior to such transaction cease to hold at least 50% of the Company Meeting, in the case of clause Shares (B), or the date of termination, in the case of clause (A), then (xany successor shares) 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 transaction) or at least 50% of the fair market value of the Company's consolidated assets (including its interests in Cingular) or the Company or a Subsidiary one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of the Company's consolidated assets or the Company enters or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that in, one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer -64- or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into an agreement with respect to, or consummates, an Acquisition Proposalaccount in determining if the completed transaction is substantially similar), then the Company shall promptly, but in no event later than two days after the completion of such transaction or the time such agreement is entered into as the case may be, pay to Parent the Termination Fee (net of less any payment made amounts reimbursed to Parent pursuant to clause (x) above) on the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes next sentence), payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds same day funds. If this Agreement is terminated by Parent or the Company pursuant to an account designated Section 8.2(b) or by Parent pursuant to Section 8.4(a), then the Company shall promptly, but in no event later than two days after a request from Parent.
, reimburse Parent for all fees and expenses (cup to a maximum of $120 million) incurred by Parent and its Subsidiaries (plus 60% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 Agreement; accordingly, if the Company fails to pay promptly the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinfee set forth in this Section 8.5(b), the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were required payment should have been made.
(c) If (i) this Agreement is terminated by Parent or the Company pursuant to be paid until Section 8.2(c) or by the Company pursuant to Section 8.3(a), (ii) prior to Parent Stockholders Meeting, but after the date of actual this Agreement, a Covered Proposal (for this purpose substituting therein Parent for each reference to the Company and Parent Common Stock for each reference to Company Shares and disregarding the second proviso in the definition of "Acquisition Proposal" and substituting "Section 6.1(b)(viii)" for "Section 6.1(a)(ix) or (xiii)" in the definition of "Acquisition Proposal") other than any such Acquisition Proposal from the Company or any of its Subsidiaries (a "Parent Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make a Parent Covered Proposal and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its Subsidiaries or the Company and any of its Subsidiaries) (a "Parent Acquiring Person") has acquired, or has entered into an agreement to acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding shares of Parent Common Stock (or stockholders of Parent immediately prior to such transactions cease to hold at least 50% of the shares of Parent Common Stock (or successor shares) after such transaction) or at least 50% of the fair market value of Parent's consolidated assets (including its interest in Cingular) or Parent or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of Parent's consolidated assets or Parent or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that, in one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into account in determining if the completed transaction is substantially similar), then Parent shall promptly, but in no event later than two days after the date of consummation of such acquisition or at the time such agreement is entered into, as the case may be, pay to the Company the Termination Fee (less any amounts reimbursed to the Company pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), then Parent shall promptly, but in no event later than two days after a request from the Company, reimburse the Company for all fees and expenses (up to a maximum of $120 million) incurred by the Company and its Subsidiaries (plus 40% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. 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 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 Parent for the fee or reimbursement set forth in this Section 8.5(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 should have been made.
Appears in 1 contract
Sources: Merger Agreement (At&t Inc.)
Effect of Termination and Abandonment. (a) In Except as provided in this Section 9.05, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE IX, this Agreement will become void and of no effect with no Liability to any Person on the part of any party hereto (or of any of its future, current or former Affiliates or Representatives); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination will relieve any party hereto of its obligation to pay the Termination Fee or expense obligations pursuant to this Agreement shall have or any liability or further obligation damages to any other party hereunder except hereto resulting from any Willful Breach of this Agreement and (iii) as the provisions set forth in this Section 8.02 9.05, Section 6.11 and Section 9.01 and (ii) that ARTICLE X will survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(ba) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if If this Agreement is terminated as followsterminated:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f9.02(c);
(ii) or Section 9.03(a);
(giii) Section 9.04(a); or
(iiiv) if this Agreement is terminated by (ASection 9.04(b) 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 announcedthen Seller will pay Buyer, 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 immediately available funds funds, an amount equal to the Termination Fee, (y) in the case of clauses (a)(i) and (ii) above, simultaneous with such termination, and (z) in the case of clauses (a)(iii) and (iv) above, within two Business Days of such termination; provided, that in no event shall Seller be required to pay the Termination Fee on more than one occasion.
(b) If this Agreement is terminated pursuant to Section 9.03(b), then Buyer will pay Seller, by wire transfer of immediately available funds, an account designated by Parentamount equal to the Termination Fee within two Business Days of such termination; provided, that in no event shall Buyer be required to pay the Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated by Buyer pursuant to Section 9.02(c), Section 9.03(a), Section 9.04(a) or Section 9.04(b), and at the time of such termination, all of the conditions in Section 7.03 have been satisfied or waived other (or for such conditions which are to occur at the Closing, which only need to be capable of being satisfied), then within two (2) Business Days after termination of this Agreement, Seller shall reimburse Buyer for all actual out-of-pocket expenses and fees paid or payable by Buyer in connection with this Agreement and the transactions contemplated hereby, such payment not to exceed $100,000; provided that any such amounts paid pursuant to this Section 9.05(c) shall be in addition to any amounts payable by Seller pursuant to Section 9.05(a).
(d) Notwithstanding anything in this Agreement to the contrary, except in the event of Fraud or Willful Breach (and subject to each party’s right to pursue specific performance pursuant to Section 10.12), the parties hereby agree and acknowledge that the right to receive the Termination Fee (and if applicable, the reimbursement of expenses pursuant to Section 9.05(c)), shall be such party’s sole and exclusive remedy in connection with termination of this Agreement.
(e) For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, if this Agreement has not been validly terminated, each party shall have the right to specific performance pursuant to Section 10.12; provided, that, in no event shall either party be entitled to seek or specifically enforce any provisions of this Agreement or to obtain an injunction or injunctions to bring any other action or proceeding in equity in connection with the transactions contemplated by this Agreement against any the other party other than pursuant to Section 10.12.
(f) Each party acknowledges and agrees that the Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate such party, in the circumstances in which such Termination Fee is due and payable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions which amount would otherwise be impossible to calculate with precision.
(g) The Company parties acknowledge and Parent agree that the agreement contained in paragraph (b) provisions of this Section 8.02 is 9.05 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent provisions, the parties would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If the Company fails a party shall fail to pay Parent to the other (or its designee) in a timely manner the amounts due under paragraph (b) above within pursuant to this Section 9.05, and, in order to obtain such payment, such party makes a claim against the time periods specified thereinother that results in a judgment against the other party, the Company other party shall pay to the claiming party the reasonable costs and expenses of the claiming party (including its reasonable legal attorneys’ fees and expenses) incurred by Parent or accrued in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts set forth in this Section 9.05 at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated Journal in effect on a daily basis from the date such amounts were required to be paid until payment was actually received, or a lesser rate that is the date of actual paymentmaximum permitted by applicable Law.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than as set forth in Section 9.01) shall have any become void and of no effect with no liability or further obligation to 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, except as otherwise provided herein, no such termination shall relieve any party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) an Acquisition Proposal shall have been made to the Company or any of its shareholders or any Person shall pay Parent have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the sum of $7.5 million (the "Termination Fee") if Company and thereafter 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 (A) Section 8.01(e8.02(a) for failure of the Merger to be consummated by the date specified therein and in such failure is the case result of any termination the knowing action or inaction of the Company or (B) Section 8.02(b)(ii) or (ii) this Agreement is terminated (A) by the Company pursuant to clause (ASection 8.03(a) or (B) an Acquisition Proposal shall have been publicly announced by Parent pursuant to Section 8.04(a) 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 (BSection 8.04(d), 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 promptly, but in no event later than two (net of any payment made pursuant to clause (x2) above) on Business Days after the date of execution such termination, pay a termination fee, representing liquidated damages, of such agreement or consummation of an Acquisition Proposal. Any amount that becomes $1,500,000 (the “Termination Fee”) payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated specified by Parent. In the event that either party terminates this Agreement pursuant to Section 8.02(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 Parent, provided that it is understood that the failure of the Securities and Exchange Commission to have declared the S-4 Registration Statement Effective shall not, by itself, evidence knowing action or inaction of Parent, then Parent shall promptly, but in no event later than two (2) Business Days after the date of such termination pay the Termination Fee by wire transfer of immediately available funds to an account specified by the Company. Notwithstanding any Termination Fee paid to a party, such Termination Fee shall not be the sole remedy available to Parent in the event that the Company has breached Section 6.06 or to either party in the event that the other party has willfully breached any other provision of this Agreement and a party shall be entitled to pursue all remedies to which it is entitled at law or in equity.
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is above are an integral part of the transactions contemplated by this Agreement, and that without such agreement agreements Parent would not have entered into this Agreement Agreement, and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Companypenalty. If the Company fails to promptly pay Parent the amounts due under paragraph (b) above within the time periods period specified therein, the Company shall pay the all costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevailsaction, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending or base rate prevailing during such period as published in The Wall Street Journalof Citibank, calculated on a daily basis N.A. from the date such amounts were required to be paid until the date of actual paymentpaid.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE X, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 10.5 and Section 9.01 11.1) shall become void and (ii) that termination will not relieve a breaching party from of no effect with no liability for any willful breach on the part of any covenantparty hereto (or of any of its directors, agreementofficers, representation employees, agents, legal and financial advisors or warranty 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 fraud or Willful Breach of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event that this Agreement is terminated by Parent Theta or Kappa 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 (B10.2(c), or the date then, Kappa shall reimburse Theta for all of terminationits reasonable Expenses, up to a maximum amount of $20,000,000. The fees provided for 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(b10.5(b) shall be paid by wire transfer of immediately available same day funds to an account designated by ParentTheta within two (2) Business Days after such termination.
(c) In the event that this Agreement is terminated by Theta or Kappa pursuant to Section 10.2(b), then, Theta shall reimburse Kappa for all of their reasonable Expenses, up to a maximum amount of $20,000,000. The Company fees provided for in this Section 10.5(c) shall be paid by wire transfer of same day funds to an account designated by Kappa within two (2) Business Days after such termination.
(d) In the event that this Agreement is terminated by Theta pursuant to Section 10.3, then, Kappa shall pay Theta a fee equal to $37,000,000, by wire transfer of same day funds to an account designated by Theta, within two (2) Business Days after such termination.
(e) In the event that this Agreement is terminated by Kappa pursuant to Section 10.4, then, Theta shall pay Kappa a fee equal to $37,000,000, by wire transfer of same day funds to an account designated by ▇▇▇▇▇, within two (2) Business Days after such termination.
(f) Each of Theta and Parent agree Kappa acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 10.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, the other party would not have entered enter into this 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 Agreement; accordingly, if either party fails to promptly pay Parent or cause to be paid the amounts amount due under paragraph (b) above within the time periods specified thereinpursuant to this Section 10.5, and, in order to obtain such payment, the Company other party commences a suit that results in a judgment against such party for the payment set forth in this Section 10.5 or any portion of such payment, such party shall pay the other party its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the payment at the prime lending rate prevailing during of Citibank, N.A., in effect on the date such period as published in The Wall Street Journalpayment was required to be paid, calculated on a daily basis from the date on which such amounts were payment was required to be paid until through the date of actual payment.
(g) In the event that legal action is taken by any party (including any of the Parties) against Kappa, the Kappa Board, Theta or the Theta Board in relation to the legality of the decision by the Kappa Board or the Theta Board to enter into or perform the agreements between Kappa and Theta set forth in Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as the case may be, and, despite the party subject to the legal action having vigorously defended against such legal action, it is concluded by a final non-appealable judgment or decision of a court of competent jurisdiction that the decision by the Kappa Board or the Theta Board, as applicable, to enter into the agreements under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable, is unlawful or unenforceable, then the Party that would be entitled to the termination payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable (referred to as the “Recipient” for the purposes of this Section 10.5(g) and Section 10.5(h)), shall promptly remit to the Party that would be obligated to pay the termination payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable, the portion of such termination payment (to the extent already paid) that such court has determined to be unlawful or unenforceable, net of any reasonable costs and expenses of the Recipient.
(h) At the Recipient’s option, the Recipient shall be entitled to assume and control the defense of any legal action referred to in Section 10.5(g) subject to the Recipient assuming all the costs relating to such defense. In the event that the Recipient assumes such defense, the other Party shall fully cooperate with the Recipient's defense of such legal action, including by providing to the Recipient all such information regarding the other Party and its Board of Directors, and making available to Recipient such employees, officers and directors of such other Party, as the Recipient shall reasonably request.
(i) Notwithstanding, anything to the contrary in this Agreement, any payments made pursuant to Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e) shall constitute liquidated damages, and from and after the termination giving rise to such payment, neither Party shall have any further liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 10.5. In no event shall any Party be entitled to payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e) on more than one occasion.
Appears in 1 contract
Sources: Business Combination Agreement
Effect of Termination and Abandonment. (a) If the Company terminates this Agreement pursuant to Section 7.1(f), RealNetworks shall reimburse the Company for all actual out-of-pocket costs and expenses incurred by the Company in connection with this Agreement and the consummation and negotiation of the transactions contemplated hereby, (including, without limitation, legal, professional and service fees and expenses) up to a maximum aggregate amount of $200,000, which amount shall be payable by wire transfer of same day funds within ninety (90) days from the date of termination of this Agreement.
(b) If RealNetworks terminates this Agreement pursuant to Sections 7.1 (d), 7.1 (e) or 7.1 (g), the Company shall reimburse RealNetworks for all actual out-of-pocket costs and expenses incurred by RealNetworks and Purchaser in connection with this Agreement and the consummation and negotiation of the transactions contemplated hereby, (including, without limitation, legal, professional and service fees and expenses) up to a maximum aggregate amount of $200,000, which amount shall be payable by wire transfer of same day funds, within ninety (90) days from the date of termination of this Agreement.
(c) Each party acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other parties would not enter into this Agreement. Accordingly, if either party fails to promptly pay the amount due pursuant to this Section 7.2, and, in order to obtain such payment, the other party commences a suit which results in a final, non-appealable judgment against the non-paying party for the fee set forth in this Section 7.2, the nonpaying party shall pay to the other party its costs and expenses (including attorneys' fees) incurred by the other party in connection with such suit, together with interest on the amount of the fee at the rate of 15% per annum.
(d) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement shall have any liability or further obligation to any all obligations of the parties hereto (other party hereunder except (i) as set forth in this Section 8.02 than rights and Section 9.01 and (ii) that termination will not relieve a breaching party obligations arising from liability for any willful the breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The Company shall pay Parent the sum of $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 termination) shall terminate, except the taking obligations 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 parties pursuant to this Section 8.02(b) 7.2 and the provisions of Section 5.6, which obligations shall be paid by wire transfer survive the termination of immediately available funds to an account designated by Parentthis Agreement.
(ce) The rights of RealNetworks under the License Agreement by and between RealNetworks and the Company and Parent agree that of even date herewith (the agreement contained in paragraph (b) of this Section 8.02 is an integral part of "License Agreement"), shall survive the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach termination of this Agreement by to the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified extent set forth therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.2(b), 8.2(c), 8.2(d) and 8.2(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.1, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, that (x) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except hereto resulting from any willful and material breach of its obligations set forth in this Agreement and (iy) as the provisions set forth in this Section 8.02 8.2, Section 6.16(d) and the second and third sentences of Section 9.01 9.1 shall survive the termination of this Agreement. For purposes of this Agreement, “willful and (ii) that termination will not relieve material breach” means a breaching party from liability for any willful material breach of any covenant, agreement, representation or warranty of this Agreement giving rise that is a consequence of an act undertaken or a failure to take an act by the breaching party with the knowledge that the taking of such terminationact or the failure to take such act would cause a material breach of this Agreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as followsterminated:
(i) if this Agreement is terminated by (I) either the Company or Parent pursuant to Section 8.01(f8.1(c) (Requisite Company Vote Not Obtained) or (g); or
(ii) if this Agreement is terminated by (AII) Parent pursuant to Section 8.01(b8.1(e) or (BCompany Breach) as a result of a material breach by either Parent or the Company pursuant to Section 8.01(e) and of the covenants or agreements set forth in this Agreement and, at the case time of any termination pursuant to clause such termination, the Requisite Company Vote shall not have been obtained; and
(A) or (B) an a bona fide Acquisition Proposal shall have been made publicly announced or otherwise communicated or made known to the Company Board (or any of its Subsidiaries or otherwise become publicly known, or any Person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition Proposal) at any time after the date of this Agreement and Proposal that has not been withdrawn without qualification prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meetingto, in the case of clause (BI), the earlier of (x) five days prior to the Company Shareholders Meeting (as such meeting may have been adjourned or postponed in accordance with this Agreement) or (y) termination of this Agreement; and
(B) within 12 months after such termination, the date Company or any of terminationits Subsidiaries shall have entered into a definitive agreement providing for, or shall have consummated or, in the case of an Acquisition Proposal that is a tender offer, shall have approved or recommended to the Company’s shareholders, an Acquisition Proposal; provided, that, for purposes of this Section 8.2(b)(i), the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%” and, as to clause (Ai) of such definition, any such Acquisition Proposal shall result in a change in control of at least 50% of the stock or assets of the Company;
(ii) by Parent pursuant to Section 8.1(g) (Company Recommendation Matters); or
(iii) by the Company pursuant to Section 8.1(h) (Superior Proposal); then, (1) in the case of Section 8.2(b)(i), then within two Business Days after consummation of such Acquisition Proposal, (x2) in the case of Section 8.2(b)(ii), within two Business Days after termination of this Agreement and (3) in the case of Section 8.2(b)(iii), concurrently with or prior to termination of this Agreement, the Company shall pay to Parent an amount equal to a termination fee of $1.0 million on 400,000,000 (the second Business Day following such termination, and (y“Company Termination Fee”) 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 Expense Reimbursement previously paid) 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 Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In the event that this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(c) (Requisite Company Vote Not Obtained), the Company shall pay to Parent, by wire transfer of immediately available funds to an account designated in writing by Parent, all of the reasonable and documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent and Merger Sub in connection with this Agreement and the other transactions contemplated by this Agreement, in an amount not to exceed $25,000,000 (the “Expense Reimbursement”), within two Business Days after the date following such termination. To the extent any portion of the Expense Reimbursement is paid by the Company to Parent, such amount paid shall be deducted from the amount of any Company Termination Fee owed or payable.
(c) The Company and Parent agree Each party acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.2 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, no party would not have entered into this 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 Agreement; accordingly, if the Company fails to timely pay Parent any amount due pursuant to Section 8.2(b) (any such amount due, a “Termination Payment”), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinapplicable Termination Payment, the Company shall pay the to Parent its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts thereon at the prime lending rate prevailing during such period as published in The Wall Street JournalJournal (or if not reported therein, calculated as reported in another authoritative source reasonably selected by Parent) in effect on a daily basis from the date such amounts were Termination Payment was required to be paid until from such date through the date of actual paymentfull payment thereof; provided, that if such suit does not result in a judgment against the Company, Parent shall pay to the Company its costs and expenses (including attorneys’ fees) in connection with such suit.
(d) Each of the parties acknowledges and agrees that the Company Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable and which do not involve fraud or willful and material breach, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, (x) in no event shall more than one Company Termination Fee be payable under this Agreement and (y) the parties agree that the payment of the Company Termination Fee shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement in the event any such payment becomes due and payable and is paid, and, upon payment of the Company Termination Fee, the Company (and the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives) shall have no further liability to Parent and Merger Sub under this Agreement; provided, that in the event that a Company Termination Fee becomes due and is paid pursuant to this Section 8.2, Parent shall have the right to refund the Company Termination Fee in its entirety within five Business Days after the payment of the Company Termination Fee by the Company, and if Parent does so refund the Company Termination Fee in its entirety to the Company within such five Business Day period, the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of this Agreement and Parent and Merger Sub shall be entitled to all remedies available as contemplated by Section 8.2(a). If Parent fails to exercise its right to refund the Company Termination Fee in accordance with the proviso set forth in the previous sentence, Parent and Merger Sub shall be deemed to have irrevocably waived any and all rights and remedies other than receipt of the Company Termination Fee and the Company and its Representatives shall have no further liability to Parent and Merger Sub under this Agreement. Each of the parties acknowledges and agrees that the Company Termination Fee, if paid to Parent, shall be treated as liquidated damages that are capital in nature to which Section 1234A of the Code applies.
(e) Notwithstanding anything to the contrary in this Agreement, none of the Financing Sources shall have any liability to the Company or any Person that is an Affiliate of the Company relating to or arising out of this Agreement or the Debt Financing, whether at law,
Appears in 1 contract
Sources: Merger Agreement
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement pursuant to this Article VIII, this Agreement shall become void and of no further force or effect and no party shall have any liability to any other party hereto (or of any of its Representatives or Affiliates) with respect hereto; provided, however, and notwithstanding anything in the foregoing to the contrary, that, (i) this Section 8.5 and the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIparties hereto may have further liability with respect thereto, no party to this Agreement shall have any liability or further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability may exist for any willful breach of any covenant, agreement, representation or warranty intentional breaches of this Agreement giving rise (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) by a party prior to the time of such terminationtermination and, in the case of Parent and Merger Sub, any failure to have sufficient immediately available funds at the Closing for the consummation of the Closing Date Transactions (which liability the parties hereto acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs).
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if If this Agreement is terminated as follows:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f8.3(e), Section 8.3(f), Section 8.4(a), Section 8.4(d) or Section 8.4(e), and any alternative transaction is consummated (g); or
(ii) if this Agreement is terminated by (A) Parent including pursuant to Section 8.01(bany Chapter 7 proceedings or any transaction or proceeding that permits the E-Side Debtors that are the direct or indirect owners of Oncor Holdings to emerge from the Chapter 11 Cases) pursuant to which none of Parent, Merger Sub or any of their respective Affiliates will obtain direct or indirect ownership of 100% of Oncor Holdings and Oncor Holdings’ approximately 80% equity interest in Oncor, then, if the Approval Order has been entered, no later than five (B5) by either Parent or days following the consummation of such alternative transaction, 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 EFIH shall pay to Parent the Termination Fee (net of any payment made pursuant to clause (x) above) on as defined below), by wire transfer, as directed by Parent, in immediately available funds. In the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable event the Company and EFIH pay the Termination Fee pursuant to this Section 8.02(b) 8.5(b), such payment shall be paid by wire transfer the sole and exclusive remedy of immediately available funds Parent and Merger Sub against the Company, EFIH and their respective Affiliates, Representatives, creditors or shareholders with respect to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a any breach of this Agreement by the Companyprior to such termination. If the Company fails Approval Order has been entered, the Company’s and EFIH’s obligation to pay Parent the amounts due under paragraph (bTermination Fee pursuant to this Section 8.5(b) above within shall survive the time periods specified thereintermination of this Agreement. If the Approval Order has been entered, the Termination Fee shall constitute an administrative expense of the Company and EFIH under the Bankruptcy Code. “Termination Fee” shall pay the costs and expenses (mean an amount equal to $190,000,000, inclusive of all expense reimbursements, including reasonable legal and documented professional fees of Parent and expenses) incurred by Parent Merger Sub; provided that, in connection no event shall such claim be senior or pari passu with any action the superpriority administrative claims granted to the secured parties pursuant to the DIP Facility (as in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest effect on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymenthereof).
Appears in 1 contract
Sources: Merger Agreement (Sempra Energy)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 8.5(b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any Party (or any of its Representatives or Affiliates); provided, however, and notwithstanding anything in this Agreement to the contrary, (i) no such termination shall relieve any Party of any liability or further obligation damages to any other party hereunder except Party resulting from any Willful Breach of this Agreement and (iii) as the provisions set forth in this Section 8.02 8.5, Article IX and Section 9.01 and (ii) that Annex A shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as followsterminated:
(i) if this Agreement is terminated by either the Company or Parent pursuant to Section 8.2(a) (Outside Date); by either the Company or Parent pursuant to Section 8.2(b) (Requisite Company Vote Not Obtained); or by Parent pursuant to Section 8.01(f8.3(b) or (gCompany Material Breach); or), and, in each case,
(ii) if this Agreement is terminated by (A) Parent pursuant prior 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 such termination, a bona fide Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company Board (or any of its Subsidiaries or publicly to any of its shareholders or any Person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition ProposalProposal 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 (1) at any time after the date of this Agreement and least five (5) Business Days 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 with respect to any termination pursuant to Section 8.2(a) (Outside Date) or Section 8.3(b) (Company Material Breach) or (2) at least five (5) Business Days prior to the case date of clause the Company Shareholders Meeting, with respect to termination pursuant to pursuant to Section 8.2(b) (ARequisite Company Vote Not Obtained); provided that for purposes of this Agreement, then (x) an Acquisition Proposal with respect to the Company shall pay not be deemed to Parent an amount equal to $1.0 million on the second Business Day following have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, and (y) if within 18 months after such termination the Company or a Subsidiary any of the Company enters its Subsidiaries shall have entered into an agreement Alternative Acquisition Agreement with respect to, or consummatesshall have consummated, an Acquisition ProposalProposal made by or on behalf of such Person or any of its Affiliates, and
(B) within twelve (12) months after such termination, (1) the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated an Acquisition Proposal or (2) there shall have been consummated an Acquisition Proposal with respect to the Company, then immediately prior to or concurrently with the Company shall pay to occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2),
(ii) by Parent the Termination Fee (net of any payment made pursuant to clause Section 8.3(a) (x) above) on Company Change of Recommendation; Material Breach of No Solicitation), then promptly, but in no event later than three Business Days after the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable termination, (iii) by the Company pursuant to this Section 8.02(b8.2(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(cRequisite Company Vote) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement at a time at which Parent would not have entered into been entitled to terminate this Agreement and that such amounts do not constitute a penalty pursuant to Section 8.3(a)(ii) or liquidated damages Section 8.3(a)(iii) (Material Breach of No Solicitation) then promptly, but in the no event of a breach of this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until later than one Business Day after the date of actual payment.such termination,
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this the Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party written notice thereof, specifying the provisions of Article VII pursuant to which such termination is effected, shall as promptly as practicable be given to the other parties to this Agreement and this Agreement shall have terminate and the Contemplated Transactions shall be abandoned, without further action by any liability or further obligation to any other party hereunder except of the parties hereto. If this Agreement is terminated as provided herein: (i) as there shall be no liability or obligation on the part of Buyer, Acquisition Corp., ▇▇▇▇▇▇ or their respective officers and directors, and all obligations of the parties shall terminate, except for the obligations of the parties pursuant to this Section 7.5, the obligations of the parties set forth in the Confidentiality Agreement referred to in Section 5.3, and any liabilities for any breach by the parties of the terms and conditions of this Section 8.02 and Section 9.01 Agreement; and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenantall filings, agreement, representation or warranty of applications and other submissions made pursuant to the transactions contemplated by this Agreement giving rise shall, to such terminationthe extent practicable, be withdrawn from the agency or Person to which made.
(b) The Company shall pay Parent Notwithstanding any provision in this Agreement to the sum of $7.5 million (the "Termination Fee") contrary, if this Agreement is terminated as follows:
(i) if this Agreement is terminated by Parent ▇▇▇▇▇▇ pursuant to Section 8.01(f) or (g); or
7.4, (ii) if this Agreement is terminated by (A) Parent ▇▇▇▇▇▇ or Buyer pursuant to Section 8.01(b7.2(a), 7.2(b) or (B7.2(d) or by either Parent or the Company Buyer pursuant to Section 8.01(e7.3(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 Meetingand, in the case of this clause (B)ii) only, or an Acquisition Proposal existed between the date hereof and the date of terminationthe termination of this Agreement, or (iii) by Buyer pursuant to Section 7.3(a) through (d), then, in the case each case, ▇▇▇▇▇▇ shall (without prejudice to any other rights Buyer may have against ▇▇▇▇▇▇ for breach of clause (A), then (xthis Agreement) 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 reimburse Buyer upon demand by wire transfer of immediately available funds to an account designated specified in writing by ParentBuyer for all reasonable out-of-pocket fees and expenses incurred or paid by or on behalf of Buyer or any Affiliate of Buyer in connection with this Agreement and the Contemplated Transactions, including all fees and expenses of counsel, investment banking firms, accountants and consultants; provided, that ▇▇▇▇▇▇ shall have no obligation to reimburse Buyer for any fees and expenses in excess of $500,000 in the aggregate.
(c) Notwithstanding any provision in this Agreement to the contrary, if this Agreement is terminated by (i) ▇▇▇▇▇▇ pursuant to Section 7.4, (ii) ▇▇▇▇▇▇ or Buyer pursuant to Section 7.2(a) or 7.2(b) or by Buyer pursuant to Section 7.3(e) and, in the case of this clause (ii) only, an Acquisition Proposal existed between the date hereof and the date of the termination of this Agreement and, concurrently with or within twelve (12) months after any such termination an Acquisition Transaction is consummated or ▇▇▇▇▇▇ or any of the ▇▇▇▇▇▇ Subsidiaries shall enter into any letter of intent, agreement in principle or other similar Contract with respect to an Acquisition Transaction, or (iii) by Buyer pursuant to Section 7.3(a) through (d), then, in each case, ▇▇▇▇▇▇ shall pay to Buyer as liquidated damages a termination fee of $6,685,000 by wire transfer of immediately available funds to an account specified in writing by Buyer, such payment to be made promptly, but in no event later than (A) in the case of clause (ii), the earlier to occur of such an Acquisition Transaction and the entry into such letter of intent, agreement in principle or other similar Contract with respect to an Acquisition Transaction, or (B) in the case of clauses (i) and (iii), on the Business Day following such termination; provided, that if ▇▇▇▇▇▇ is obligated to reimburse Buyer for any fees and expenses pursuant to Section 7.5(b), then such termination fee shall be reduced by the amount of such fees and expenses of Buyer that are actually reimbursed by ▇▇▇▇▇▇.
(d) Notwithstanding anything to the contrary in this Agreement, if Buyer receives a payment pursuant to Section 7.5(b) or 7.5(c), such payment will constitute liquidated damages and be the sole and exclusive remedy of Buyer regardless of the circumstances of such termination.
(e) The Company and Parent agree parties acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is 7.5 are an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do without these agreements Buyer would not constitute a penalty or liquidated damages in the event of a breach of enter into this Agreement by the CompanyAgreement. If the Company Accordingly, if ▇▇▇▇▇▇ fails to promptly pay Parent any amount due pursuant to this Section 7.5 and, in order to obtain any such payment Buyer commences a suit which results in a judgment against ▇▇▇▇▇▇ for any of the amounts due under paragraph (b) above within the time periods specified thereinset forth in this Section 7.5, the Company ▇▇▇▇▇▇ shall pay the to Buyer its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentsuit.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and or the abandonment of any of the Merger Transactions pursuant to this Article VIIIArticle, no party to the applicable provisions of this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and (ii) that financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as follows:
pursuant to Sections 8.2(a), 8.2(b)(i) or (ib)(iii) if or 8.3(c), then the Group shall promptly, but in no event later than two days after the Company is notified of such by the relevant Holders, pay all of the fees and expenses required to be paid pursuant to Section 6.9 (Expenses), in each case payable by wire transfer of same day funds. In the event that this Agreement is terminated by Parent any party pursuant to Section 8.01(f) or (g8.3(a)(i); 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(e8.3(b)(ii)(B) and or by the Noteholders pursuant to Section 8.3(c), the provisions of Annex A shall thereafter become applicable; provided, however, that in the case of any termination by the Company pursuant to clause (ASection 8.3(b)(ii)(B) or (B) an Acquisition Proposal by the Noteholders pursuant to Section 8.3(c)(ii), the provisions of Annex A shall have been publicly announced or otherwise communicated or made known not become applicable unless the terminating party, in its sole discretion, elects to make Annex A applicable and notifies the other parties to the Company Board Agreement of such election within five (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal5) at any time business days 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 providing notice 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree Group acknowledges that the agreement agreements contained in this paragraph (b) of this Section 8.02 is are an integral part of the Transactions and the other transactions contemplated by hereby and that, without these agreements, the Holders would not enter into this Agreement; accordingly, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in if the event of a breach of this Agreement by the Company. If the Company Group fails to promptly pay Parent the amounts amount due under paragraph (b) above within pursuant to this paragraph, and, in order to obtain such payment, any Holder commences a suit which results in a judgment against the time periods specified thereinany of the Group for the fee set forth in this paragraph, the Company Group shall pay to the applicable Holder its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the U.S. prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Sources: Restructuring Agreement (Personnel Group of America Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise specified herein, no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from the willful material breach of this Section 8.02 and Section 9.01 Agreement and (ii) that the provisions set forth in the second sentence of Section 9.1 shall survive termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) an Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its shareholders or any Person shall pay Parent have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the sum Company or any of $7.5 million its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (x) thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(i)(Outside Date), the "Termination Fee"date of termination, and (y) if at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(ii) (Company No Vote), the date of the Company Shareholders Meeting) and thereafter this Agreement is terminated as follows:
by either Parent or the Company pursuant to Section 8.2(i) (iOutside Date) if or Section 8.2(ii) (Company No Vote), (ii) this Agreement is terminated by the Company pursuant to Section 8.3(a) (Company takes Superior Proposal) or (iii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(b)(i) or (gCompany Change of Recommendation; no Company meeting by outside date; Company fails to reaffirm; Company recommends tender), other than as a result of the occurrence of a Parent Material Adverse Effect, 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 $18,000,000 (the “Company Termination Fee”); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent or provided, however, that the Company pursuant Termination Fee to Section 8.01(e) and in the case of any termination be paid pursuant to clause (Aiv) or of Section 8.3(a) (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 takes Superior Proposal) at any time shall be paid as set forth in such section; and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the date out-of-pocket expense, including those of the Exchange Agent, reasonably incurred by Parent or Merger Sub in connection with this Agreement and prior to the taking of the vote of the shareholders of the Company transactions contemplated by this Agreement at the up to a maximum amount of $5 million; provided, further, that no Company Meeting, in the case of Termination Fee shall be payable to Parent pursuant to clause (B), i) or the date (iii) of termination, in the case this paragraph (b) and no reimbursement of expenses pursuant to clause (A), then i) of this paragraph (xb) the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following such termination, occur unless and (y) if until within 18 12 months after such termination the Company or a Subsidiary any of the Company enters its Subsidiaries shall have entered into an agreement Alternative Acquisition Agreement (which is a definitive agreement) with respect to, or consummatesshall have consummated or shall have approved or recommended to the Company’s shareholders or otherwise not publicly opposed, an Acquisition Proposal, then Proposal made by the Company shall pay to Parent Person who made the Termination Fee (net of any payment made pursuant to Acquisition Proposal in clause (xi) above) on , or any affiliate of, or Person acting in concert with, such Person (substituting “50%” for “20%” in the date of execution of such agreement or consummation of an Acquisition Proposaldefinition thereof). Any amount The Company acknowledges that becomes payable pursuant to the agreements contained in this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 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, Parent or Merger Sub commences a suit that results in a judgment against the amounts due under paragraph (bCompany for the fee set forth in this Section 8.5(b) above within the time periods specified thereinor any portion of such fee, the Company shall pay the to Parent or Merger Sub its reasonable out-of-pocket costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with such suit.
(c) In the event that (i) an Acquisition Proposal shall have been made to Parent or any action of its Subsidiaries 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 Parent or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (x) thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(i) (Outside Date), the date of termination, and (y) at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(iii) (Parent No Vote), the date of the Parent Shareholders Meeting) and thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 8.2(i) (Outside Date), or 8.2(iii) (Parent No Vote), (ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (Parent takes Superior Proposal) or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(b)(i) (Parent Change of Recommendation; no Parent meeting by outside date; Parent fails to reaffirm; Parent recommends tender), other than as a result of the occurrence of a Company Material Adverse Effect, then Parent shall promptly, but in no event later than two days after the date of such termination pay the Company a termination fee of $18,000,000 (the “Parent Termination Fee”); provided, however, that the Parent Termination Fee to be paid pursuant to clause (iv) of Section 8.4(a) (Parent takes Superior Proposal) shall be paid as set forth in such section; and shall promptly, but in no event later than two days after being notified of such by the Company, pay all of the out-of-pocket expenses reasonably incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $5 million; provided, further, that no Parent Termination Fee shall be payable to the Company pursuant to clause (i) or (iii) of this paragraph (c) and no reimbursement of expenses pursuant to clause (i) of this paragraph (c) shall occur unless and until within 12 months after such termination Parent or any of its Subsidiaries shall have entered into an Alternate Acquisition Agreement (which is a definitive agreement) with respect to, or shall have consummated or shall have approved or recommended to Parent’s shareholders or otherwise not publicly opposed, an Acquisition Proposal made by the Person who made the Acquisition Proposal in clause (i) above, or any affiliate of, or Person acting in concert with, such Person (substituting “50%” for “20%” in the definition thereof). Parent prevailsacknowledges 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 reasonable attorneys’ fees) in connection with such suit.
(d) For purposes of this Section 8.5, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” if, within twelve (12) months of such termination, Parent or the filing Company, as applicable, or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Parent’s or the Company’s shareholders, as applicable, or otherwise not opposed, an Acquisition Proposal.
(e) (i) Notwithstanding any lawsuitother provision in this Agreement, taken neither the Company Termination Fee nor the Parent Termination Fee shall exceed the sum of (A) the amount that it is determined should not be gross income to collect Parent or the Company, as applicable for purposes of the requirements of Sections 856(c)(2) and (3) of the Code, with such determination to be set forth in an opinion of outside tax counsel selected by Parent or the Company, as applicable (the “Counsel’s Gross Income Opinion”) plus (B) such additional amount that it is estimated can be paid to Parent or the Company, as applicable in such taxable year without creating a risk that the payment would cause Parent or the Company, as applicable to fail to meet the requirements of Section 856(c)(2) and (3) of the Code, determined as if the payment of such amountsamount did not constitute income described in Section 856(c)(2) and 856(c)(3) of the Code (“Qualifying Income”), together with interest on which determination shall be made by independent tax accountants to Parent or the amount Company, as applicable plus (C) in the event Parent or the Company, as applicable receives a letter from outside tax counsel to Parent or the Company, as applicable (“Counsel’s Ruling Letter”) indicating that Parent or the Company, as applicable has received a ruling from the Internal Revenue Service holding that Parent’s receipt of the Company Termination Fee or the Company’s receipt of the Parent Termination Fee, as applicable either would constitute Qualifying Income or would be excluded from gross income of Parent or the Company, as applicable for purposes of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”), the entire Parent Termination Fee or Company Termination Fee, as applicable less the amounts contemplated by clauses (A) and (B) above. The obligation of the Company or Parent, as applicable to pay any such unpaid amounts at portion of the prime lending rate prevailing during such period Company Termination Fee or Parent Termination Fee, as published in The Wall Street Journal, calculated on a daily basis applicable that remains unpaid solely by reason of this Section 8.5(e) shall terminate five years from the date such amounts were required to be paid until the date of actual paymentpayment otherwise would have been made but for this Section 8.5(e).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided that (i) except as otherwise provided in Sections 8.5(g), 9.5(c) and 9.5(d), no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except hereto resulting from any willful or intentional material breach of this Agreement (iit being understood that any such liability or damages for which the Company may become liable shall be calculated net of the amount of the Termination Fee, if previously paid by the Company) as set forth in this Section 8.02 and Section 9.01 and (ii) that the provisions set forth in the second sentence of Section 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated by the Company pursuant to Section 8.3(a) or by Parent pursuant to Section 8.4(a), then the Company shall pay a termination fee of $272,500,000 (the “Termination Fee”) as followsdirected in writing by Parent, at the time of termination in the case of a termination pursuant to Section 8.3(a) or promptly (but in any event within two business days following termination of this Agreement in the case of a termination pursuant to Section 8.4(a).
(c) In the event that this Agreement is terminated by:
(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(e8.2(a), and (x) and in at any time prior to the case of any termination pursuant to clause (A) or (B) an Acquisition Proposal shall have has been publicly announced or otherwise communicated or publicly made known to the Company Board (or any Person shall have publicly announced, communicated or made known an intention, whether or and 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, withdrawn and (y) if within 18 nine months after such termination the Company or any of its Subsidiaries enters into a Subsidiary definitive agreement with respect to, or consummates, any Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee, and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of such consummation, the Company shall pay the Termination Fee;
(ii) Parent or the Company pursuant to Section 8.2(b) (or, after the Shareholder Meeting has been held and a vote on the adoption of this Agreement has been taken and there has been a failure by the Company to obtain the Requisite Company Vote, and this Agreement thereby becomes terminable for this reason, the Company terminates this Agreement for another reason), and (x) prior to the Shareholder Meeting an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee less the amount of any Parent Expenses previously paid to Parent pursuant to Section 8.5(d) by the Company, and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of, and as a condition to, such consummation, the Company shall pay the Termination Fee less the amount of any Parent Expenses previously paid to Parent pursuant to Section 8.5(d) by the Company; or
(iii) Parent pursuant to Section 8.4(b), and (x) prior to the breach giving rise to the right of termination, an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, an Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of such consummation, the Company shall pay the Termination Fee. For purposes of this Section 8.5(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(b), except that all references to 15% therein shall be deemed to be references to “more than 50%”.
(d) In the event that this Agreement is terminated by Parent, on the one hand, or the Company, on the other hand, pursuant to Section 8.2(b) under circumstances in which the Termination Fee is not then payable pursuant to this Section 8.5, then the Company shall pay promptly (but in any event within two business days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (the “Parent Expenses”) as directed by Parent in writing, which amount shall not be greater than $40,000,000; provided, however, that the existence of circumstances that could require the Termination Fee (net to become subsequently payable by the Company pursuant to Section 8.5(c)(ii) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.5(d); provided further, that the payment by the Company of Parent Expenses pursuant to this Section 8.5(d) shall not relieve the Company of any payment made subsequent obligation to pay the Termination Fee pursuant to clause Section 8.5(c) except to the extent indicated in Section 8.5(c)(ii).
(xe) aboveIn the event of termination of this Agreement by (i) the Company or Parent pursuant to Section 8.2(a) and on the date Termination Date the conditions set forth in Section 7.1 or Section 7.2 (other than the delivery of execution the officer certificates referred to in Sections 7.2(a), 7.2(b) and 7.2(c)) were satisfied or waived, or (ii) the Company pursuant to Section 8.3(c), Parent shall pay the Company an amount, by wire transfer of immediately available funds, equal to $272,500,000 (the “Parent Fee”) as promptly as possible (but in any event within two business days) following such agreement or consummation of an Acquisition Proposal. termination.
(f) Any amount that becomes payable pursuant to this Section 8.02(b8.5(b), 8.5(c), 8.5(d) or 8.5(e) shall be paid by wire transfer of immediately available funds to an account or accounts designated by Parentthe party entitled to receive such payment. The parties hereto agree and understand that in no event shall the Company or Parent be required to pay the Termination Fee or the Parent Fee, respectively, on more than one occasion.
(cg) The Notwithstanding anything to the contrary in this Agreement, (i) in the circumstances in which Parent becomes obligated to pay the Parent Fee, the Company’s termination of this Agreement pursuant to Section 8.2(a) or 8.3(c), as the case may be, and receipt of payment of the Parent Fee pursuant to Section 8.5(e) or the guarantee thereof pursuant to the Guarantees shall be the sole and exclusive remedy of the Company and Parent agree that its Subsidiaries against Parent, Merger Sub or the Guarantors for any loss or damage suffered as a result of the breach of any representation, warranty, covenant or agreement contained in paragraph (b) this Agreement by Parent or Merger Sub and the failure of the Merger to be consummated, and upon payment of the Parent Fee in accordance with Section 8.5(e), none of Parent, Merger Sub or the Guarantors shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and (ii) in no event, whether or not this Agreement shall have been terminated, shall the Company be entitled to monetary damages in excess of $272,500,000 in the aggregate, inclusive of the Parent Fee, if applicable, for all losses and damages arising from or in connection with breaches of this Agreement by Parent or Merger Sub or otherwise relating to or arising out of this Agreement or the transactions contemplated by this Agreement.
(h) The parties acknowledge that the agreements contained in Section 8.02 is 8.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, the parties would not have entered enter into this 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 Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to Section 8.5(b), Section 8.5(c) or Section 8.5(d) or Parent fails to promptly pay any amount due pursuant to Section 8.5(e), and, in order to obtain such payment, Parent or Merger Sub, on the amounts due under paragraph (bone hand, or the Company, on the other hand, commences a suit that results in a judgment against the Company for the amount set forth in Section 8.5(b), Section 8.5(c) above within or Section 8.5(d) or any portion thereof or a judgment against Parent for the time periods specified therein, amount set forth in Section 8.5(e) or any portion thereof the Company shall pay to Parent or Merger Sub, on the one hand, or Parent shall pay to the Company, on the other hand, its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts amount or portion thereof at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any member of the Parent Group or the Company Group); provided, that (i) no such termination shall relieve any party hereto of any liability to pay the Termination Fee or the Excluded Party Fee, as set forth applicable, or the Parent Fee or to reimburse expenses in accordance with this Section 8.02 and Section 9.01 7.5 or relieve any party hereto for any liability incurred or suffered as a result of fraud and (ii) that the provisions listed in the first sentence of Section 8.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that:
(i) (x) this Agreement is terminated pursuant to Sections 7.2(a), 7.2(b) or 7.4(b) (other than as provided in Section 7.5(b)(iv)), (y) any Person shall have delivered to the Company shall or publicly disclosed an 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 an Acquisition Proposal (whether the Acquisition Proposal made prior to the Stockholders Meeting or a different Acquisition Proposal), then the Company shall, on the date such definitive agreement is entered or such Acquisition Proposal is consummated (whichever is earlier), pay Parent the sum of or cause to be paid an amount equal to $7.5 million 29,900,000 (the "Termination Fee") if to the Termination Fee Parties and 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 as follows:by the Company pursuant to Section 7.3(a), the Company shall pay the Termination Fee to the Termination Fee Parties 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 the Termination Fee Parties an amount equal to $13,900,000 (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;
(iiii) if this Agreement is terminated by Parent pursuant to Section 8.01(f7.4(a), the Company shall pay the Termination Fee to the Termination Fee Parties and shall reimburse Parent for all of its Reimbursable Expenses, promptly, but 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 the Termination Fee Parties 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;
(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 5.3, the Company shall pay the Termination Fee to the Termination Fee Parties and shall reimburse Parent for all of its Reimbursable Expenses, promptly, but 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 7.3(b), at any time at which Parent was entitled to terminate this Agreement pursuant to Section 7.4(a) or 7.4(b) (gin the later case, as a result of any material breach by the Company of the covenants contained in Section 5.3), the Company shall pay the Termination Fee to the Termination Fee Parties and shall reimburse Parent for all of its Reimbursable Expenses, promptly, but 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. For purposes of this Agreement, any payment of the Termination Fee or Excluded Party Fee to the Termination Fee Parties hereunder shall be payable to Parent to the extent that Parent has any unreimbursed expenses and any remaining amounts shall be payable 50% to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and 50% to P2 Capital Partners, LLC.
(c) In the event that:
(i) this Agreement is terminated by the Company pursuant to Sections 7.3(b), at any time at which Parent was not 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 5.3), or 7.3(c), then Parent shall promptly, but in no event later than two (2) Business Days, after the date of such termination, pay or cause to be paid to the Company or its designees an amount equal the Parent Fee, by wire transfer of same day funds; or
(ii) if this Agreement is terminated by (A) the Company or Parent pursuant to Section 8.01(b7.2(a) and the Company would have been entitled to terminate this Agreement pursuant to Sections 7.3(b) or (B7.3(c) by either Parent or the Company but for such termination pursuant to Section 8.01(e7.2(a), then Parent shall promptly, but in no event later than two (2) 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 announcedBusiness Days, 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 pay or cause to be paid to the Company or a Subsidiary of its designees the Company enters into an agreement with respect toParent Fee, 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 immediately available funds same day funds. For the avoidance of doubt, in no event shall Parent be required to an account designated by Parentpay the Parent Fee on more than one occasion. The Company shall have the right to assign its right to receive the Parent Fee to one or more Persons in its sole discretion.
(cd) The Parent and the Company acknowledge that (i) the fees and Parent agree that the agreement contained in paragraph (b) other provisions of this Section 8.02 is 7.5 are an integral part of the transactions contemplated by this Agreement, that (ii) without such agreement these agreements, Parent and the Company would not have entered enter into this Agreement and that such amounts do (iii) any amount payable pursuant to this Section 7.5 does not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Company. If penalty; accordingly if the Company or Parent, as applicable, fails to promptly pay Parent the amounts due under paragraph pursuant to Sections 7.5(b) or (bc) above within (or any portion thereof), and, in order to obtain such payment, the time periods specified thereinother party commences a suit that results in a judgment against the other party hereto for the Termination Fee, Excluded Party Fee or Parent Fee (or portion thereof) as applicable, the Company or Parent, as applicable, shall pay to the other party hereto its reasonable out-of pocket costs and expenses (including reasonable 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 amountssuit, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis fee from the date such amounts were payment was required to be paid until made to the date of actual paymentpayment at the prime rate as published in the Wall Street Journal on the date such payment was required to be made.
(e) Notwithstanding anything to the contrary in this Agreement, in the event the Company fails to effect the Closing in accordance with Section 1.2 of this Agreement or otherwise breaches this Agreement or fails to perform hereunder, then, except for an order of specific performance as and only to the extent expressly permitted by Section 8.7, Parent's and Merger Sub's sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) (other than in connection with fraud for which all applicable legal and equitable remedies shall be available to Parent and Merger Sub) against any member of the Company Group in respect of this Agreement, any Contract executed in connection herewith and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and collect, if due, (i) the Termination Fee or the Excluded Party Fee, as applicable, (ii) reimbursement of the Reimbursable Expenses and (iii) any interest and other amounts payable pursuant to Section 7.5(d), and upon payment of such amounts in accordance with this Section 7.5, except in connection with an order of specific performance as and only to the extent expressly permitted by Section 8.7, and (A) no member of the Company Group shall have any further liability or obligation relating to or arising out of this Agreement, any Contract executed in connection herewith or the transactions contemplated hereby or thereby, (B) neither Parent nor any other member of the Parent Group shall be entitled to bring or maintain any claim, action or proceeding against the Company or any member of the Company Group arising out of or in connection with this Agreement, any Contract executed in connection herewith, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and (C) Parent shall use its reasonable best efforts to cause any legal proceedings pending in connection with this Agreement, any Contract executed in connection herewith or any of the transactions contemplated hereby or thereby, to the extent maintained by Parent, Merger Sub or another member of the Parent Group against the Company, its Subsidiaries or any member of the Company Group, to be dismissed with prejudice promptly following the payment of any such amounts. For the avoidance of doubt, (x) the amounts the Termination Fee Parties are entitled to collect, if due, that are specified in clauses (i), (ii) and (iii) of this Section 7.5(e) are intended to serve as a cap on the maximum aggregate liability of the Company, its Subsidiaries and any member of the Company Group under this Agreement in the event the Company fails to effect the Closing in accordance with Section 1.2 of this Agreement or otherwise breaches this Agreement or fails to perform hereunder and under no circumstances shall the Termination Fee Parties be entitled to collect, if due, more than the amounts specified in such clauses or to collect, if due, any such amounts, including the Termination Fee or the Excluded Party Fee, as applicable, and reimbursement of the Reimbursable Expenses on more than one occasion and (y) under no circumstances shall the Termination Fee Parties, Parent or Merger Sub be permitted or entitled to receive both a grant of specific performance of the obligation to close contemplated by Section 8.7 and any money damages, including all or any portion of the Termination Fee or the Excluded Party Fee, as applicable, and the Reimbursable Expenses.
(f) Notwithstanding anything to the contrary in this Agreement, in the event Parent and Merger Sub fail to effect the Closing in accordance with Section 1.2 of this Agreement or otherwise breach this Agreement or fail to perform hereunder, then, except for an order of specific
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 8.5 and in Section 9.01 9.1) shall become void and of no effect with no liability on the part of any party hereto (ii) or of any of the Company Related Parties or Parent Related Parties); provided, that no such termination will not shall relieve a breaching party from the Company for any liability for damages resulting from any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise Willful Breach by the Company prior to such termination.
(b) The Company shall pay to Parent a fee equal to $24,000,000 (the sum “Company Termination Fee”) and, in addition, shall: (x) 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, and (y) pay such amounts as may be owed pursuant to Section 8.5(e), in the case of clauses (x) and (y) together up to a maximum amount of $7.5 million 8,200,000 (the "Termination Fee"“Parent Expenses”) if this Agreement is terminated as followsif:
(i) if Parent terminates this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gChange in Recommendation); or
(ii) if this Agreement is terminated by (A) Parent pursuant after the date of this Agreement, a bona fide Acquisition Proposal shall have been communicated in writing by any Person to Section 8.01(b) or (B) by either Parent senior management or the board of directors of the Company pursuant to Section 8.01(e) and in the case or any of any termination pursuant to clause (A) its Subsidiaries or (B) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known by any Person directly to the Company Board (Company’s stockholders generally or any Person shall have been otherwise publicly announceddisclosed by the Company, communicated (B) thereafter this Agreement is terminated pursuant to Section 8.2(a) (Termination Date), Section 8.2(b) (Stockholder Vote) or made known an intention, whether or not conditional, to make an Acquisition ProposalSection 8.4(b) at any time (Company Breach) and (C) within twelve (12) months 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 a definitive agreement with respect toto any Acquisition Proposal (regardless of when made or the counterparty thereto) or consummates any Acquisition Proposal (regardless of when made or the counterparty thereto); provided, or consummatesthat solely for purposes of this Section 8.5(b)(ii)(C), an the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), then except that the references to “fifteen percent (15%) or more” shall be deemed to be references to “fifty percent (50%) or more”. Any 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 due under this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available same-day funds to an account designated by Parent(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) above, on the earlier of the date of execution of any such definitive agreement or the date of consummation of the Acquisition Proposal (regardless of the date of such consummation). Any Parent Expenses due under this Section 8.5(b) shall be paid no later than two (2) Business Days after receipt of documentation supporting such Parent Expenses provided, that such Parent Expenses are then due and payable under this Section 8.5(b).
(c) The Company and (i) Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 shall pay to the Company fails a fee equal to pay $24,000,000 (the “Parent the amounts due under paragraph Termination Fee”) and, in addition, shall: (bx) above within the time periods specified therein, reimburse the Company shall pay the costs for any and all reasonable and documented out-of-pocket fees and expenses (including reasonable legal fees and expensesexpenses of financial advisors, outside legal counsel, accountants, experts, diligence agents, consultants and hedging costs and arrangements) actually incurred by Parent the Company or on its behalf in connection with any action the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, (y) pay such amounts as may be owed pursuant to Section 8.5(e) and (z) reimburse the Company for or pay for all Recovery Matters, in which Parent prevailsthe case of clauses (x), including the filing of any lawsuit, taken (y) and (z) together up to collect payment of such amounts, together with interest on the a maximum aggregate amount of any such unpaid amounts $8,200,000 (the “Company Expenses”) if:
(A) the Company terminates this Agreement pursuant to Section 8.3(a) (Parent Breach) or Section 8.3(b) (Failure to Close); or
(B) the Company or Parent terminates this Agreement pursuant to Section 8.2(a) (Termination Date) at a time when the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required Company could have terminated this Agreement pursuant to be paid until the date of actual paymentSection 8.3(a) or Section 8.3(b).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of ------------------------------------- termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement (other than Sections 7.2, 8.1, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.16 and 8.17) shall have 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 or financial advisors or other representatives); provided, however, that no such -------- ------- termination shall relieve any party hereto from any liability or further obligation for any breach of this Agreement 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 hereunder except relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same.
(ib) as set forth In the event that prior to termination of this Agreement a bona fide Company Takeover Proposal shall have been made known to the Company or has been made directly to its shareholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Company Takeover Proposal (a "Competing Company Takeover Proposal"), and thereafter this Agreement is (x) terminated pursuant to Section 7.1(b)(i), 7.1(b)(ii) or 7.1(g), (y) terminated by Purchaser pursuant to Section 7.1(c), 7.1(d), 7.1(f) or
7.1 (h), or (z) terminated by the Company pursuant to Section 7.1(i) or 7.1(j), then the Company shall promptly, but in this Section 8.02 and Section 9.01 and (ii) that no event later than, in the case of termination will not relieve a breaching party from liability for any willful breach by Purchaser, two days after, or in the case of any covenanttermination by the Company, agreementimmediately prior to, representation or warranty termination of this Agreement giving rise to such termination.
(b) The Company shall the Company's payment obligation, pay Parent the sum of $7.5 million Purchaser an amount (the "Termination Expense Reimbursement 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 equal to the Company Board Expenses, which shall not exceed two million five hundred thousand dollars (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$2,500,000), 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 immediately available same day funds to an account designated by Parent.
Purchaser. The Purchaser shall submit an accounting of the Expenses to the Company. For purposes of this Agreement, the term "Expenses" shall mean any and all costs, fees and expenses incurred by Purchaser and Merger Sub in connection with the preparation, negotiation, execution, performance and consummation of this Agreement, the Noncompetition Agreements, the Severance Agreements and any other agreements executed in connection herewith or therewith or in connection with any of the transactions contemplated by any such agreements and documents (c) including, without limitation, attorneys', information agent's and accountants' fees and expenses, ▇▇▇▇▇▇'▇ internal time allocation relating to its employees, ▇▇▇▇▇▇'▇ internal costs and expenses, governmental filing fees, and printing and mailing costs). The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 7.2(b) are an integral part of the transactions contemplated by this AgreementAgreement and that, that without such agreement Parent these agreements, Purchaser would not have entered into this Agreement and that such amounts do not constitute a penalty Agree ment. Notwithstanding the foregoing, no fee or liquidated damages expense reimbursement shall be paid pursuant to this Section 7.2(b) if Purchaser shall be in the event of a material breach of this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentits obligations hereunder.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in Section 10.1) becomes void and of no effect with no liability or obligation on the part of any party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided in this Section 8.02 and Section 9.01 and (ii) that Agreement, no termination will not relieve a breaching party relieves any Party hereto of any liability or damages resulting from liability for any fraud or willful or intentional breach of any covenant, agreement, representation or warranty this Agreement. No termination of this Agreement giving rise to such terminationaffects the obligations of the Parties contained in the Confidentiality Agreement, all of which obligations survive in accordance with their terms.
(b) The Company C-COR shall pay Parent the sum of to ARRIS a fee equal to $7.5 22.5 million (the "“C-COR Termination Fee") if ”), by wire transfer of immediately available funds on the date that the C-COR Termination Fee is due as provided below, in the event this Agreement is terminated as followsterminated:
(i) if this Agreement is terminated by Parent ARRIS or C-COR pursuant to Section 8.01(f9.2(a) or (g); orSection 9.2(b) as a result of the failure to obtain the approval of the C-COR stockholders, if the following occurs:
(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 stockholders meeting of either Party, any third party makes a Takeover Proposal (substituting 35% for the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, 20% threshold in the case definition of clause Competing Transaction for purposes of this Section 9.5(b)(i)) to C-COR or publicly discloses or announces an intention (Bwhether or not conditional and whether or not withdrawn) to make a Takeover Proposal, prior to either (1) with respect to any termination pursuant to Section 9.2(a), or the date of termination, in the case of clause such termination or (A2) with respect to any termination pursuant to Section 9.2(b), then the date of the C-COR Stockholders’ Meeting; and
(xB) 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 twelve months after of such termination the Company C-COR or a Subsidiary any of the Company its Subsidiaries enters into an agreement with respect toAlternative Acquisition Agreement to consummate, or consummates, an Acquisition Proposalor approves or recommends to the stockholders of C-COR or otherwise does not oppose, then the Company shall pay to Parent the Termination Fee a Competing Transaction with such third party;
(net of any payment made ii) by C-COR (A) pursuant to clause (xSection 9.2(b) above) on and, prior to the date of execution the stockholders meeting of such agreement either Party, a C-COR Triggering Event shall have occurred or consummation of an Acquisition Proposal. Any amount that becomes payable (B) pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.9.3(a); or
(ciii) The Company and Parent agree that the agreement contained in paragraph (b) of this by ARRIS pursuant to Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment9.4(a).
Appears in 1 contract
Sources: Merger Agreement (Arris Group Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or affiliates); provided, however, and 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 further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from any willful or intentional material breach of this Section 8.02 and Section 9.01 Agreement and (ii) that the provisions set forth in the second sentence of Section 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if after the date of this Agreement, a bona fide Acquisition Proposal shall have been made to the Company, any of its Subsidiaries or any of its stockholders, 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 prior to (x) with respect to any termination pursuant to Section 8.2(b), the date of the Stockholders Meeting at which the vote on the Merger is held, (y) with respect to any termination pursuant to Section 8.2(a), the Termination Date and (z) with respect to any termination pursuant to clause (B) below, such breach by the Company) and thereafter 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(e8.2(a) and in the case of any termination pursuant to clause (Aor 8.2(b) or (B) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known by Parent pursuant to Section 8.4(b) as a result of a willful and material breach by the Company Board of any of its agreements set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.14(b), 6.15 and/or 6.16 of this Agreement;
(ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or any Person is terminable by Parent pursuant to Section 8.4(a) when otherwise terminated; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a); then the Company shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposalpromptly (but in no event later than five (5) at any time days after the date of this Agreement and prior such termination) pay Parent the Termination Fee (provided, however, that the Termination Fee to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of be paid pursuant to clause (B)iii) of this Section 8.5(b) shall be paid as set forth in Section 6.2(f) payable by wire transfer of same day funds; provided, or the date of terminationfurther, in the case of that no Termination Fee shall be payable to Parent pursuant to clause (A), then i) of this paragraph (xb) the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following such termination, unless and until within twelve (y12) if within 18 months after of such termination the Company or a Subsidiary any of the Company enters into an agreement with respect to, or consummates, its Subsidiaries shall have consummated an Acquisition ProposalProposal (substituting “25%” for “15%” in the definition thereof)). Notwithstanding anything to the contrary in this Agreement, then the Company shall pay to Parent parties hereby acknowledge and agree that in the event that 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 and is paid by the Company pursuant to this Section 8.02(b) 8.5(b), the Termination Fee shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The ’s and Merger Sub’s sole and exclusive remedy against the Company and Parent agree that any of its Subsidiaries and the Company’s and any of its Subsidiaries’ Representatives with respect to any and all breaches of any representation, warranty, covenant or agreement contained in paragraph (b) of this Section 8.02 is an integral part Agreement or otherwise relating to or arising out of this Agreement or the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (Vertrue Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVI, no party to this Agreement Party hereto (or any of its directors or officers) shall have any liability or further obligation to any other party hereunder Party to this Agreement, except as provided in Section 4.5 (iregarding confidentiality) as set forth in and this Section 8.02 6.5 and Section 9.01 and (ii) except that termination will not nothing herein shall relieve a breaching party any Party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum event of: a termination of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
pursuant to Sections 6.1(iv) or (i) if v), or any termination of this Agreement is terminated by the 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 Proposal6.2, then the Company shall , within five (5) business days thereafter, pay to the 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 immediately available funds to an account designated specified by Parentthe Parent up to $1.5 million for all documented out of pocket reasonable fees and expenses incurred by the Parent (including the reasonable fees and expenses of counsel, accountants, consultants and advisors) in connection with this Agreement and the transactions contemplated hereby (subject to such $1.5 million limit, "Parent Documented Expenses").
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in In the event of a breach termination of this Agreement by the Company. If the Company fails pursuant to pay Parent the amounts due under paragraph (bSection 6.1(v) above within the time periods specified therein, the Company shall shall, within five (5) business days thereafter, pay the costs and expenses Parent by wire transfer of immediately available funds to an account specified by the Parent a fee of $2.2 million (including reasonable legal fees and expensesthe "Termination Fee"), less any Parent Documented Expenses paid to Parent.
(d) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken prior to collect payment of such amounts, together with interest on the amount of entering into any such unpaid amounts at definitive agreement or any such Business Combination Transaction being effected, shall, within five (5) business days thereafter, pay the prime lending rate prevailing during such period as published Parent by wire transfer of immediately available funds to an account specified by the Parent the Termination Fee, less any Parent Documented Expenses paid to Parent.
(e) As used in The Wall Street Journalthis Section 6.5, calculated on a daily basis from the date such amounts were required term "Business Combination Transaction" shall mean any of the following involving the Company or any subsidiary of the Company, that is material to be paid until the date business, results of actual payment.operation, prospects or financial condition of the Company :
Appears in 1 contract
Sources: Merger Agreement (Kurzweil Applied Intelligence Inc /De/)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger and the Upstream Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except hereto resulting from any willful 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) Seller shall pay Buyer a termination fee of $27,034,000 (the “Termination Fee”) in the event of the termination of this Agreement pursuant to:
(i) as Section 8.1(c) (other than pursuant to Section 8.1(c)(iv));
(ii) Section 8.1(d)(ii); or
(iii) Section 8.1(b)(iii) or, if the Seller Stockholders’ Approval has not been obtained prior to termination of this Agreement, Section 8.1(b)(i), in either case, if, at or prior to the time of such failure, an Acquisition Proposal shall be publicly disclosed, and within twelve (12) months after such termination a definitive agreement shall have been entered into providing for an Acquisition Proposal which is closed within twenty four (24) months of such termination (provided that, for purposes of this Section 8.2(b)(iii), all references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”).
(iv) Seller acknowledges that the agreements contained in this Section 8.2(b) are an integral part of the Transactions, and that, without these agreements, Buyer, Merger Sub and Merger LLC would not enter into this Agreement; accordingly, if Seller fails to promptly pay the amount due pursuant to this Section 8.2(b), and, in order to obtain such payment, Buyer, Merger Sub or Merger LLC commences a suit that results in a judgment against Seller for the fee set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The Company shall pay Parent the sum of $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(f8.2(b) 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 any portion 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 announcedsuch fee, 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 Seller shall pay to Parent an amount equal to $1.0 million on the second Business Day following such terminationBuyer, and (y) if within 18 months after such termination the Company Merger Sub 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the Merger LLC its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual payment.
(c) 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 Seller, the Termination Fee shall be Buyer’s, Merger Sub’s and Merger LLC’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, no party to this Agreement (other than this Section 7.5 and Sections 5.8(c), 5.19 and Article 8) shall have 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, neither such termination nor the existence of any rights provided for in Section 7.5(b) or Section 7.5(c) shall relieve any party hereto of any liability or further obligation to eliminate or reduce any other party hereunder except damages resulting from (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation representations or warranty of warranties contained in this Agreement giving rise or fraud or (ii) any breach of any covenant or agreement contained in this Agreement; and provided, further, that in the event Parent elects to receive the Company Termination Fee (as defined below) or the Company elects to receive the payments contemplated by Section 7.5(c)(i) or (ii), as the case may be, the receipt of such payments and amounts shall be in full satisfaction of any amount or obligations owed to the recipient by the other party or parties hereto, and shall be such recipient's sole remedy hereunder (except for cases of fraud).
(i) In the event that this Agreement is terminated by the Company pursuant to Section 7.3(a) or by Parent pursuant to Section 7.4(a), then the Company shall pay Parent a termination fee of $30 million in same-day funds (the "Company Termination Fee"), on the date of such termination.
(bii) The In the event that prior to or at the Company Stockholders Meeting a Company Acquisition Proposal shall pay Parent have been made to the sum Company or any of $7.5 million (the "Termination Fee") if its subsidiaries or any of its stockholders, and thereafter 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 (B7.2(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 reimburse 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and for its documented expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.the
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than Sections 5.3(c), 6.12 and 8.5, and Article IX) shall have 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 further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company In the event that (i) a bona fide Acquisition Proposal shall pay have been made or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Acquisition Proposal in respect of Parent the sum or any of $7.5 million (the "Termination Fee") if its subsidiaries and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(b) or 8.2(c) or by the Company pursuant to Section 8.3(d) as follows:
a result of a material breach by Parent of any of the covenants set forth in Section 6.6 hereof (iprovided that within 9 months of the termination of this Agreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by Parent) if or (ii) this Agreement is terminated by Parent pursuant to Section 8.01(f) 8.4(a), or (g); or
(iiiii) 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(e8.3(b)(i), or (iv) and in this Agreement is terminated by the case of any termination Company pursuant to clause Section 8.3(b)(ii) and, within 9 months of such termination, any Acquisition Proposal by any third party is entered into, agreed to or consummated by Parent, then Parent shall pay the Company a termination fee equal to the sum of (A) or $100,000, and (B) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to all reasonable and documented fees and expenses incurred by Company in connection with the Company Board (or any Person shall have publicly announcednegotiation, communicated or made known an intentionpreparation, whether or not conditional, to make an Acquisition Proposal) at any time after the date execution and delivery of this Agreement and prior the other agreements to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meetingbe executed in connection herewith, in the case of clause (B)same-day funds, or on the date of such termination, in the case of clause (Aii) or (iii), then (x) the Company shall pay to Parent an amount equal to $1.0 million or on the second Business Day following such termination, and (y) if within 18 months after such termination the Company or a Subsidiary earlier of the Company enters into date an agreement with is entered into in 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(bProposal or an Acquisition Proposal is consummated in the case of clause (i) shall be paid by wire transfer of immediately available funds to an account designated by Parentor (iv).
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (bSection 8.5(b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not have entered into this Agreement; accordingly, if Parent fails to promptly pay the amount due pursuant to Section 8.5(b), 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 Section 8.5, Parent shall pay to the Company 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 amounts owed at the prime rate of Bank of America, N.A., in effect from time to time during such period.
(d) In the event that (i) a bona fide Acquisition Proposal shall have been made or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Acquisition Proposal in respect of the Company or any of its subsidiaries and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(b) or 8.2(c) or by Parent pursuant to Section 8.4(d) as a result of a material breach by the Company of any of the covenants set forth in Section 6.6 hereof (provided that within 9 months of the termination of this Agreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company) or (ii) this Agreement is terminated by the Company pursuant to Section 8.3(a), or (iii) this Agreement is terminated by Parent pursuant to Section 8.4(b)(i), or (iv) this Agreement is terminated by Parent pursuant to Section 8.4(b)(ii) and, within 9 months of such termination, any Acquisition Proposal by any third party is entered into, agreed to or consummated by the Company, then the Company shall pay Parent a termination fee equal to the sum of (A) $100,000, and (B) all reasonable and documented fees and expenses incurred by Parent in connection with the negotiation, preparation, execution and delivery of this Agreement and the other agreements to be executed in connection herewith, in same-day funds, on the date of such termination, in the case of clause (ii) or (iii), or on the earlier of the date an agreement is entered into in respect of an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (i) or (iv).
(e) The Company acknowledges that the agreements contained in Section 8.5(d) are an integral part of the transactions contemplated by this Agreement, and that, without such agreement these agreements, Parent would not have entered into this 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 Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to Section 8.5(d), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinfee set forth in this Section 8.5, the Company shall pay the to Parent its costs and expenses (including reasonable legal fees and expensesincluding, attorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing of Bank of America, N.A., in effect from time to time during such period period.
(f) Without limiting the terms of this Section 8.5, the parties agree that no termination fee shall be due pursuant to this Section as published a result of the termination of this Agreement by either Parent or the Company solely as a result of the failure of a closing condition set forth in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentArticle VII herein.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in paragraph (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except hereto resulting from any willful and intentional breach of this Agreement and (iii) as the provisions set forth in this Section 8.02 8.5 and the second sentence of Section 9.01 and (ii) that 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its shareholders or any Person shall pay Parent have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the sum Company or any of $7.5 million its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) thirty (30) Business Days prior to, with respect to any termination pursuant to Section 8.2(a), the "Termination Fee"date of termination, and (B) if at least ten (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 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(e8.2(a) and in the case of any termination or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to clause Section 8.4 (Aother than pursuant to Section 8.4(e)) or (B) an Acquisition Proposal by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Shareholders’ Meeting, any event giving rise to Parent’s right to terminate under Section 8.4 shall have been publicly announced occurred or otherwise communicated or made known to (iii) this Agreement is terminated by the Company Board pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal2) at any time days after the date of such termination, pay Parent the Termination Fee (provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3) and shall promptly, but in no event later than two (2) days after being notified of such by Parent, pay up to $1,000,000 of the documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent or Merger Sub in connection with this Agreement and prior to the taking of the vote of the shareholders of the Company transactions contemplated by this Agreement at the Company MeetingAgreement, in the each case payable by wire transfer of same day funds; provided, however, that no Termination Fee shall be payable to Parent pursuant to clause (B), or the date i) of this paragraph (b) unless and until within twelve (12) months of such termination, in the case of clause (A), then (x1) the Company or any of its Subsidiaries 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 have entered into an agreement Alternative Acquisition Agreement with respect to, or consummatesshall have consummated or shall have approved or recommended to the Company’s shareholders or otherwise not opposed, an Acquisition Proposal or (2) there shall have been consummated an Acquisition Proposal (substituting in both instances “50%” for “15%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, then an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall pay have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved or recommended to Parent the Termination Fee (net of any payment Company’s shareholders or otherwise not opposed, an Acquisition Proposal made pursuant to clause (x) above) by or on the date of execution behalf of such agreement Person or consummation any of an Acquisition Proposalits Affiliates. Any amount The Company acknowledges that becomes payable pursuant to the agreements contained in this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 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, Parent or Merger Sub commences a suit that results in a judgment against the amounts due under paragraph (bCompany for the fee set forth in this Section 8.5(b) above within the time periods specified thereinor any portion of such fee, the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period of interest as published in The Wall Street Journal, calculated Journal (changing as and when such rate changes) in effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual 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 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 monetary damages under this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as set forth in otherwise provided herein, no such termination shall relieve any party hereto of any liability to pay the Termination Fee or Parent Fee pursuant to this Section 8.02 and Section 9.01 8.5, and (ii) that the agreements of the Company, Parent and Merger Sub contained in Section 6.10 (Expenses), the indemnification and reimbursement provisions of Section 6.14(b) (Financing), this Section 8.5, Article IX, the Confidentiality Agreement and the Guaranty shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise (in the case of the Confidentiality Agreement and Guaranty, subject to such terminationthe terms thereof).
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 8.2(a) (the section relating to the Termination Date) or Section 8.2(b) (the section relating to failure to receive stockholder approval), (y) any Person shall have made a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination or, with respect to a termination pursuant to Section 8.2(b), prior to the Stockholders Meeting and (z) within twelve (12) months after such termination the Company shall have entered into a definitive agreement with respect to an Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gthe section relating to a Change of Recommendation); or
(iiiii) 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(e8.3(a) and in (the case of any termination pursuant section relating to clause an Alternative Acquisition Agreement); then the Company shall:
(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)i) above, or promptly but in no event later than three (3) business days after the date on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, pay Parent the Termination Fee by wire transfer of termination, immediately available funds;
(B) in the case of clause (A)ii) above, then promptly but in no event later than three (x3) business days after the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following date of 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 by wire transfer of immediately available funds; and
(net C) in the case of any payment made pursuant to clause (xiii) above) on , immediately prior to or substantially concurrently with such termination, pay Parent 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 Termination Fee by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree it being understood that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the no event of a breach of this Agreement by the Company. If shall the Company fails be required to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest Termination Fee on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentmore than one occasion).
Appears in 1 contract
Sources: Merger Agreement (Commscope Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (i) as or of any of its Representatives or Affiliates); provided that the provisions set forth in this Section 8.02 8.5, Section 6.9 (Public Announcements), Section 6.12(c) (with respect to Parent’s and Merger Sub’s reimbursement and indemnification obligations), Section 6.17 (Expenses), Section 9.4 (Notices), Section 9.6 (Entire Agreement; Assignment), Section 9.7 (Parties in Interest), and Section 9.01 9.8 (Governing Law and Arbitration), the Confidentiality Agreement and the Guaranty (iito the extent set forth therein) that shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise and abandonment of the Merger pursuant to such terminationthis ARTICLE VIII.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (A) 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(e8.2(a) and in or Section 8.2(b) or by the case of any termination Parent pursuant to clause (A) or Section 8.4(b)(i), (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 intentionProposal, whether or not conditional, shall have been made public and not withdrawn prior to make an Acquisition Proposalthe termination of this Agreement pursuant to Section 8.2(a) at any time or Section 8.4(b)(i) or, with respect to termination pursuant to Section 8.2(b), prior to the Shareholders’ Meeting, and (C) after the date of this Agreement and prior to the taking date that is twelve (12) months following the termination of the vote of the shareholders of this Agreement, the Company contemplated by this Agreement at enters into, agrees to or consummates an Acquisition Proposal (whether or not such Acquisition Proposal was the Company Meeting, same Acquisition Proposal referred to in the case of clause (B), or the date of termination, in the case of preceding 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 provided that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) for purposes of this Section 8.02 is an integral part 8.5(b)(i), the references to “20%” in the definition of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into Acquisition Proposal shall be deemed to be references to “50%”);
(ii) this Agreement and that such amounts do not constitute a penalty is terminated by Parent pursuant to Section 8.4(a) or liquidated damages in the event of a breach of Section 8.4(b)(ii); or
(iii) this Agreement is terminated by the Company. If the Company fails pursuant to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.Section 8.3(a);
Appears in 1 contract
Sources: Merger Agreement (ShangPharma Corp)
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any Party (or of any of its Representatives or Affiliates); provided, however, that notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided in Section 8.5(d) and Section 8.7, no such termination shall relieve any Party of any liability or further obligation damages to any other party hereunder except Party resulting from any fraud or willful or intentional breach of this Agreement, and (iii) as the provisions set forth in (w) Section 6.10, (x)
(1) Section 6.11(h) and (2) solely to the extent set forth therein with respect to Parent, Section 6.16(a) and Section 6.16(b) relating to costs, fees and expenses incurred by the Company related to the execution and consummation of the Debt Tender Offers and the Change of Control Offers (the provisions set forth in this clause (x), collectively, the “Parent Reimbursement Obligations”), (y) this Section 8.02 and Section 9.01 8.5 and (iiz) that the second sentence of Section 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if an Acquisition Proposal shall have been made to the Company or any of its Subsidiaries 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, in each case after the date of this Agreement (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination) and thereafter this Agreement is terminated (x) by either Parent or the Company pursuant to (A) Section 8.2(a) and, at the time of such termination, all of the conditions set forth in Section 7.1 (other than the condition set forth in Section 7.1(a)) and Section 7.3 have been satisfied or are capable of being satisfied or (B) Section 8.2(b), or (y) by Parent pursuant to Section 8.4(b);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.4(a); or
(iiiii) 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 (B8.3(a), 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 8.5(b) or (c), or in the proviso at the end of this sentence) on the part of any party to this Agreement or of any of its directors, officers, employees, agents, legal or financial advisors or other representatives; provided, however, no such termination shall have relieve any party to this Agreement from any liability or further obligation to for damages resulting from any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that: (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 made to Arch or otherwise communicated have been made directly to Arch' stockholders or made known to the Company Board (noteholders generally or any Person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition ProposalProposal and thereafter: (A) Arch' stockholders do not adopt this Agreement or the other transactions contemplated hereby at any time after the date Arch Stockholders Meeting or Arch' noteholders do not satisfy the Arch Minimum Condition with respect to the Arch Notes; (B) this Agreement is terminated by either Arch or PageNet pursuant to the terms 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 (xC) 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 Arch enters into an agreement with a third party with respect to, or consummates, to an Acquisition ProposalProposal within 12 months of the termination of this Agreement; (ii) this Agreement is terminated by PageNet pursuant to Section 8.3(a) or (b) provided that, with respect to Section 8.3(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to Arch' obligation in accordance with such Section to duly convene and complete the Arch Stockholders Meeting regarding the adoption of this Agreement and the matters set forth in Section 6.5(b) of this Agreement); or (iii) this Agreement is terminated by Arch pursuant to Section 8.4(f), then the Company Arch and its Subsidiaries (jointly and severally) shall pay PageNet a fee equal to Parent $40.0 million (the "PageNet Termination Fee"), which amount shall be in addition to any expenses to be paid pursuant to Section 6.12, payable by wire transfer of same day funds. A PageNet 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(b8.5(b)(i), or (ii) shall be paid by wire transfer no later than two days after the date of immediately available funds termination and a PageNet Termination Fee payable pursuant to an account designated by Parent.
Section 8.5(b)(iii) shall be paid simultaneously with (cand such payment shall be a condition of) The Company and Parent agree termination pursuant to Section 8.4(f). Arch acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, PageNet would not have entered enter into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If the Company Accordingly, if Arch fails to pay Parent promptly the amounts amount due under pursuant to this Section 8.5(b), and, in order to obtain such payment, PageNet commences a suit which results in a judgment against Arch for the fee set forth in this paragraph (b) above within the time periods specified therein), the Company Arch shall pay the to PageNet its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be made.
(c) In the event that: (i) an Acquisition Proposal shall have been made to PageNet or have been made directly to PageNet's stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) PageNet's stockholders do not adopt this Agreement or the other transactions contemplated hereby at the PageNet Stockholders Meeting or PageNet's noteholders do not satisfy the PageNet Minimum Condition with respect to the PageNet Notes, and the Bankruptcy Court fails to enter the Final Confirmation Order which would otherwise enable the transactions set forth in this Agreement to occur without approval by the holders of PageNet Shares; (B) this Agreement is terminated by either Arch or PageNet pursuant to the terms of this Agreement and (C) either (x) PageNet executes and delivers an agreement with respect to an Acquisition Proposal or (y) an Acquisition Proposal with respect to PageNet is consummated, in either case, within 12 months of the date this Agreement is terminated; (ii) this Agreement is terminated by Arch pursuant to Section 8.4(a) or (b) provided that, with respect to Section 8.4(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to PageNet's obligation in accordance with such Section to duly convene and complete the PageNet Stockholders Meeting (unless the Bankruptcy Case has commenced or PageNet has stipulated to bankruptcy relief after the occurrence of an Involuntary Insolvency Event pursuant to Section 6.19(a)(iv) hereof) regarding the adoption of this Agreement and the approval of the matters set forth in Section 6.5(a) of this Agreement); (iii) the Prepackaged Plan is withdrawn without the prior written consent of Arch, or PageNet files any other plan of reorganization or amends, modifies or adds to any material provision of the Prepackaged Plan in each case without the prior written consent of Arch; (iv) any other plan of reorganization filed by a person other than PageNet is confirmed by the Bankruptcy Court; (v) PageNet files a motion to sell or otherwise transfer all or a substantial portion of its assets as part of a sale pursuant to Section 363 of the Bankruptcy Code without the prior written consent of Arch; or (vi) this Agreement is terminated by PageNet pursuant to Section 8.3(c) or (d), then PageNet and its Subsidiaries (jointly and severally) shall pay Arch a fee equal to $40.0 million (the "Arch Termination Fee"), which amount shall be in addition to any expenses to be paid until pursuant to Section 6.12, payable by wire transfer of same day funds. A Arch Termination Fee payable pursuant to Section 8.5(c)(i), (ii), (iii), (iv) or (v) shall be paid no later than two days after the date of actual termination and a Arch Termination Fee payable pursuant to Section 8.5(c)(vi) shall be paid simultaneously with (and such payment shall be a condition of) termination pursuant to Section 8.3(c) or (d). PageNet 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, Arch and Merger Sub would not enter into this Agreement. Accordingly, if PageNet fails to pay promptly the amount due pursuant to this Section 8.5(c) (and in any case in which the Bankruptcy Case has been commenced, the Initial Merger Order approves this provision), and, in order to obtain such payment, Arch commences a suit which results in a judgment against PageNet for the fee set forth in this paragraph (c), PageNet shall pay to Arch 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.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 and (ii) that termination will not relieve a breaching party from of no effect with no liability for any willful breach on the part of any covenantparty hereto (or of any of its directors, agreementofficers, representation employees, agents, legal and financial advisors or warranty other representatives); provided, however, that no such termination shall relieve any party hereto of any liability or damages resulting from any breach of this Agreement giving rise prior to such termination.
(b) The In the event that this Agreement is terminated by the Company pursuant to Section 8.3(a) or by Parent pursuant to Section 8.4(a), (b) or (c), then the Company shall promptly, but in no event later than two days after the date of such termination (except in the case of a termination pursuant to Section 8.3(a), in which case the payment referred to below shall be made at or prior to the time of such termination), pay Parent the sum a termination fee (as liquidated damages) of $7.5 million 200,000,000 (the "Termination Fee") if by wire transfer of same day funds to an account previously designated in writing by Parent to the Company. In the event that (i) an Acquisition Proposal shall have been made to the Company after the date hereof or any Person (other than Parent or any of its Affiliates) shall have publicly announced after the date hereof an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and thereafter 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(e8.2(b) and (ii) (x) the Person making the Acquisition Proposal which was outstanding at the time of the Shareholders Meeting (the "Acquiring Party") acquires, by purchase, merger, consolidation, sale, assignment, lease, transfer or otherwise, in one transaction or any related series of transactions within twelve months after a termination of this Agreement, a majority of the case voting power of any termination the outstanding securities of the Company or all or substantially all of the assets of the Company and its Subsidiaries taken as a whole or (y) there is consummated a merger, consolidation or similar business combination between the Company or one of its Subsidiaries and the Acquiring Party or one of its Subsidiaries within twelve In the event that this Agreement is terminated by the Company pursuant to clause (ASection 8.3(b)(y) or (B) an Acquisition Proposal shall have been publicly announced by Parent or otherwise communicated or made known to the Company Board (pursuant to 8.2(a) as a result of the failure to meet the condition set forth in Section 7.1(e) or any Person 8.2(c) hereof, then Parent shall, or shall have publicly announcedcause Holdco to, communicated or made known an intentionpromptly, whether or not conditional, to make an Acquisition Proposal) at any time but in no event later than two days 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 pay to the Company or a Subsidiary termination fee (as liquidated damages) of $50,000,000 (the Company enters into an agreement with respect to, or consummates, an Acquisition Proposal, then the Company shall pay to Parent the "Regulatory 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 ProposalFee"). Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements neither Parent nor the Company would not have entered into this 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 Agreement; accordingly, if the Company or Parent fails to promptly pay Parent the any amounts due under paragraph (b) above within pursuant to this Section 8.5(b), and in order to obtain such payment Parent or the time periods specified thereinCompany as the case may be commences a suit which results in a judgment against the Company for payment of all or a portion of the Termination Fee, or against Parent for payment of all or a portion of the Regulatory Termination Fee, the Company shall pay to Parent or Parent shall pay the Company, as the case may be, its costs and expenses (including its reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing of The Chase Manhattan Bank in effect from time to time during such period as published period. The Company's payment of the Termination Fee shall be the sole and exclusive remedy of Parent against the Company and any of its Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until event this Agreement is terminated and the date of actual payment.Termination Fee is payable whether or not there has
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, no party to this Agreement (other than this Section 7.5 and Sections 5.8(c), 5.19 and Article 8) shall have 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, neither such termination nor the existence of any rights provided for in Section 7.5(b) or Section 7.5(c) shall relieve any party hereto of any liability or further obligation to eliminate or reduce any other party hereunder except damages resulting from (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation representations or warranty of warranties contained in this Agreement giving rise or fraud or (ii) any breach of any covenant or agreement contained in this Agreement; and provided, further, that in the event Parent elects to receive the Company Termination Fee (as defined below) or the Company elects to receive the payments contemplated by Section 7.5(c)(i) or (ii), as the case may be, the receipt of such payments and amounts shall be in full satisfaction of any amount or obligations owed to the recipient by the other party or parties hereto, and shall be such recipient's sole remedy hereunder (except for cases of fraud).
(i) In the event that this Agreement is terminated by the Company pursuant to Section 7.3(a) or by Parent pursuant to Section 7.4(a), then the Company shall pay Parent a termination fee of $30 million in same-day funds (the "Company Termination Fee"), on the date of such termination.
(bii) The In the event that prior to or at the Company Stockholders Meeting a Company Acquisition Proposal shall have been made to the Company or any of its subsidiaries or any of its stockholders, and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(b), then the Company shall pay reimburse Parent for its documented expenses incurred in connection with the sum transactions contemplated hereby, up to a maximum reimbursement of $7.5 1.0 million (the "Termination FeeParent Expenses") if this Agreement is terminated as follows:), promptly upon presentment of statements documenting such expenses.
(iiii) if In the event that this Agreement is terminated by Parent pursuant to Section 8.01(f7.4(b) 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 as a result of a willful breach and, within 12 months 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 any Company Acquisition Proposal (y) if within 18 months whether received prior to or after such termination termination) is entered into, agreed to or consummated by the Company or a Subsidiary of the Company enters into an agreement with respect to, or consummates, an Acquisition ProposalCompany, then the Company shall pay to Parent the Company Termination Fee (net of any payment made pursuant to clause (x) above) Fee, on the earlier of the date of execution of such an agreement is entered into with respect to a Company Acquisition Proposal or consummation of an a Company Acquisition Proposal. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by ParentProposal is consummated.
(c) The Company and Parent agree (i) In the event that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement is terminated by the Company. If the Company fails pursuant to pay Section 7.3(b), then Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses Company a fee of $30 million in same-day funds (including reasonable legal fees and expenses) incurred by the "Parent in connection with any action in which Parent prevailsTermination Fee"), including on the filing of any lawsuit, taken to collect payment day of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymenttermination.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the parties hereto agree that the Company shall pay to Parent the sum a termination fee of $7.5 28.0 million (the "Termination Fee") if this Agreement is terminated as followsin the manner set forth below if:
(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(c), or (C) by either Parent or the Company pursuant to Section 8.01(e) (other than by reason of any breach by Parent or the Company, respectively), and in the case of any termination pursuant to clause (A), (B) or (BC) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of the Company or 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 (BC), or the date of terminationtermination of this Agreement, in the case of clause (A) or (B); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.01(h). In the event the Termination Fee shall become payable pursuant to Section 8.02(b)(i) or (ii), then (x) the Company shall pay to Parent an amount equal to $1.0 5.0 million on the second first Business Day following such terminationtermination of this Agreement, and (y) if within 18 months after such termination the Company or a Subsidiary of the Company enters into an any agreement with respect to, or consummates, an any Acquisition ProposalTransaction, 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 the Acquisition ProposalTransaction. In the event the Termination Fee shall become payable pursuant to Section 8.02(b)(iii), the Company shall pay to Parent the entire Termination Fee within two Business Days following the date of termination of this Agreement. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.. ARTICLE IX
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger Transactions are abandoned pursuant to this Article VIIIVII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any member of the Parent Group or the Company Group); provided, that (i) except as set forth in otherwise provided herein, no such termination shall relieve any party hereto of any liability to pay the Company Termination Fee or the Parent Termination Fee, as applicable, pursuant to this Section 8.02 7.5 or, subject to Sections 7.5(e) and Section 9.01 7.5(f), relieve the Company or Parent or Merger Sub of any liability for any Willful Breach of this Agreement prior to such termination, and (ii) that the provisions listed in the second sentence of Section 8.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement. The party desiring to terminate this Agreement giving rise pursuant to Sections 7.2, 7.3 or 7.4 shall give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other parties in accordance with Section 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (A) this Agreement is terminated pursuant to Section 7.2(a), Section 7.2(b) or Section 7.4(b); (B) any Person shall have publicly proposed, announced or made an Acquisition Proposal or, in the case of a termination pursuant to Section 7.4(b), an Acquisition Proposal shall have been provided to the Company’s management, the Company Board or any committee thereof (including the Special Committee), in either case after May 6, 2021 and prior to the Offer Acceptance Time (and such Acquisition Proposal shall not have been withdrawn at least two (2) Business Days prior to the Expiration Date) and, in the case of a termination pursuant to Section 7.4(b), prior to the breach that forms the basis for such termination; and (C) within twelve (12) months of such termination the Company shall have consummated an Acquisition Proposal or entered into a definitive agreement for an Acquisition Proposal that is subsequently consummated (whether consummated within such twelve (12)-month period or thereafter), then the Company shall, on the date such Acquisition Proposal is consummated, pay the Company Termination Fee to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clauses (B) and (C) above the references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) this Agreement is terminated by the Company pursuant to Section 7.3(a), the Company shall, prior to or substantially concurrently with such termination, pay the Company Termination Fee to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; or
(iii) this Agreement is terminated by Parent pursuant to Section 8.01(f7.4(a), the Company shall, no later than three (3) Business Days after the date of such termination, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or (g); ormore accounts designated by Parent. For the avoidance of doubt, in no event shall the Company be required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and upon the occurrence of different events.
(iic) if In the event that 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 (A7.3(c) or Section 7.3(d), then Parent shall, no later than three (B3) 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 Business Days after the date of such termination, pay or cause to be paid the Parent Termination Fee to the Company or its designees by wire transfer of same day funds to one or more accounts designated by the Company (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion); provided, that any purported termination of this Agreement under Section 7.2(a) shall be deemed to be a termination under Section 7.3(c) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 7.3(c).
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, in either case as required pursuant to this Section 7.5 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. The Company and Parent each acknowledge that the fees and the other provisions of this Section 7.5 are an integral part of this Agreement and are not a penalty, but rather liquidated damages in a reasonable amount that will compensate the other party in the circumstances in which such fee is payable, and that, without these provisions, the other party would not enter into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that Parent and Merger Sub fail to effect the Closing or otherwise breach this Agreement or fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the taking termination of this Agreement as permitted by Section 8.7, (i) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) Parent, Merger Sub and the Equity Investors, (B) 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 or assignees of Parent, Merger Sub or any Equity Investor or (C) 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 or assignees of any of the vote of foregoing (collectively, the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of clause (B), “Parent Group”) or the date Lender Related Parties in respect of terminationthis Agreement, any agreement executed in connection herewith, including the case of clause (A)Commitment Letters and the Limited Guarantee, then and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company shall pay Parent Termination Fee pursuant to Section 7.5(c) (including any interest payable pursuant to Section 7.5(d)) and, as applicable, the reimbursements and indemnification contemplated by Section 5.13 from Parent an amount equal or pursuant to $1.0 million on the second Business Day following such terminationLimited Guarantee, and (y) if within 18 months after such following the termination of this Agreement by either party under circumstances in which 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 is not payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds 7.5(c), the Company’s right to an account designated by Parent.
(c) The Company and seek monetary damages from Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach Parent’s or Merger Sub’s Willful Breach of this Agreement by prior to the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified thereintermination of this Agreement and collect, as applicable, the Company reimbursements and indemnification contemplated by Section 5.13 from Parent (provided that in no event shall pay Parent be subject to an aggregate amount for monetary damages for Willful Breach of this Agreement and, as applicable, the costs reimbursements and expenses indemnification contemplated by Section 5.13 in an amount in excess of an amount equal to the Parent Termination Fee (including reasonable legal fees the “Damage Cap”)) and expenses(ii) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect upon payment of such amounts, together with interest on no member of the Parent Group or the Lender Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith, the Commitment Letters or the Limited Guarantee, or the transactions contemplated hereby or thereby; provided, that in no event will the Company be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts in excess of the amount of the Damage Cap, (2) payment of both monetary damages and the Parent Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any such unpaid amounts monetary damages and/or the Parent Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against Parent or Merger Sub that results in the Closing.
(f) Notwithstanding anything to the contrary in this Agreement, in the event that the Company fails to effect the Closing or otherwise breaches this Agreement or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) Parent’s and Merger Sub’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) the prime lending rate prevailing during such period as published Company and its Subsidiaries, (B) 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 or assignees of the Company or its Subsidiaries or (C) 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 or assignees of any of the foregoing (collectively, the “Company Group”) in The Wall Street Journalrespect of this Agreement, calculated on a daily basis any agreement executed in connection herewith and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company Termination Fee pursuant to Section 7.5(b) (including any interest payable pursuant to Section 7.5(d)) from the date Company, and (y) following the termination of this Agreement by either party, Parent’s right to seek monetary damages from the Company in the event of the Company’s Willful Breach of this Agreement prior to the termination of this Agreement (provided that in no event shall the Company be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of the Damage Cap) and (ii) upon payment of such amounts, no member of the Company Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby or thereby; provided, that in no event will Parent and Merger Sub be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts were required to be paid until in excess of the date amount of actual paymentthe Damage Cap, (2) payment of both monetary damages and the Company Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any monetary damages and/or the Company Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against the Company that results in the Closing.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in Section 7.02(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement shall have forthwith become void and of no effect and there shall be no liability or obligation on the part of any party hereto (or of any of its Representatives or Affiliates), except as provided in the last sentence of Section 5.02(c), Section 5.03(b), Section 5.07, Section 5.09(c), this Section 7.02 and Article VIII, which provisions shall survive such termination; provided, however, that subject to Section 7.02(b), Section 7.02(c), and Section 7.02(d), no such termination shall relieve any party hereto (treating Parent and Merger Sub as one party) of any liability or further obligation for damages to any other party hereunder except hereto resulting from any Willful Breach by the party (itreating Parent and Merger Sub as one party) as set forth committing such Willful Breach prior to such termination, and the aggrieved party will be entitled to all rights and remedies available at law or in equity. The parties hereto acknowledge and agree that nothing in this Section 8.02 and 7.02 shall be deemed to affect their right to specific performance under Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination8.12.
(b) The Company shall pay or cause to be paid to Parent the sum or its designee a non-refundable fee of $7.5 million 240,000,000 (the "“Company Termination Fee"”) if this Agreement is terminated as followsif:
(i) if this Agreement is terminated by the Company pursuant to Section 7.01(c)(i);
(ii) (A) this Agreement is terminated (1) by Parent or the Company pursuant to Section 7.01(b)(i) or Section 7.01(b)(ii), or (2) by Parent pursuant to Section 7.01(d)(ii), (B) a bona fide Acquisition Proposal shall have been publicly announced or publicly disclosed and not have been withdrawn (1) in the case of a termination pursuant to Section 7.01(b)(i) or Section 7.01(d)(ii), prior to the date of such termination, and (2) in the case of a termination pursuant to Section 7.01(b)(ii), prior to the Shareholders Meeting, and (C) thereafter during the twelve (12) month period immediately following such termination, (1) the Company enters into an Alternative Acquisition Agreement or (2) an Acquisition Proposal is consummated; or
(iii) this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g7.01(d)(i); or
(ii) if this Agreement is terminated by (A) Parent If the Company Termination Fee becomes due pursuant to this 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 (B7.02(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 or its designee 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 immediately available funds to an account designated (x) in the case of a payment required by Parent.
(c) The Company and Parent agree that Section 7.02(b)(i), on the agreement contained in paragraph (b) date of this Section 8.02 is an integral part termination of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages (y) in the event case of a breach payment required by Section 7.02(b)(ii), within two (2) Business Days after the earlier of this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified thereinwhen an Acquisition Proposal is consummated or an Alternative Acquisition Agreement is executed and (z) in the case of a payment required by Section 7.02(b)(iii), the Company shall pay the costs and expenses within two (including reasonable legal fees and expenses2) incurred by Parent in connection with any action in which Parent prevails, including the filing Business Days of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.termination of this Agreement, it being understood that in no event shall the Company be
Appears in 1 contract
Sources: Merger Agreement (Scana Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no 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 shall have become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives); provided, however, that (i) this Section 8.5, Section 5.3(c), Section 5.4(d), Section 6.8 and Article IX and the Limited Guaranties (in each case, subject to the terms thereof) shall remain in full force and effect and survive termination of this Agreement, (ii) no such termination shall relieve any party hereto of any liability or further obligation to any other party hereunder except damages resulting from (iA) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation representations or warranty of warranties contained in this Agreement giving rise prior to such termination or (B) any breach of any covenant or agreement contained in this Agreement prior to such termination, and (iii) nothing shall relieve any party from liability for fraud.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.4(a); 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 made, proposed or otherwise communicated or made known to the Company Board (or any Person shall have publicly announcedand not withdrawn), communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement hereof and prior to the taking termination of this Agreement, (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company pursuant to Section 8.2(a) and (C) within 12 months of the vote termination of the shareholders of this Agreement, any definitive agreement in connection with an Acquisition Proposal by a third party is entered into or any Acquisition Proposal is consummated by the Company contemplated by (whether or not the Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)), (iii) this Agreement at is terminated by Parent pursuant to Section 8.4(b) or (iv) this Agreement is terminated by the Company Meetingpursuant to Section 8.3(c), then the Company shall (x) pay Parent or its designee a termination fee (the “Termination Fee”) of $3,000,000 in the event of a termination pursuant to Section 8.5(b)(i), or $6,000,000 in the event of a termination pursuant to Section 8.5(b)(ii), (iii) or (iv) (and the applicable Termination Fee shall be paid in same-day funds (1) within two business days after such termination in the case of clause a termination referred to in Section 8.5(b)(i) or (Biii), (2) on the earlier of the date an agreement is entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the case of a termination referred to in Section 8.5(b) (ii), or the date (3) contemporaneously, and as a condition of such termination, in the case of clause a termination referred to in Section 8.5(b)(iv)) and (Ay) pay Parent in same-day funds, as promptly as possible (but in any event within two business days) following the delivery by Parent of an invoice therefor, all Expenses incurred by Parent, Merger Sub and their respective Affiliates (other than the Company) in connection with the transactions contemplated by this Agreement, including the Equity Financing; it being understood that in no event shall the Company be required to pay the applicable Termination Fee on more than one occasion. In the event that Parent or its designee shall receive full payment of the Termination Fee and reimbursement of any applicable Expenses pursuant to this Section 8.5(b), then the receipt of the Termination Fee together with such Expenses shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub or any other Person arising out of or in connection with this Agreement, the Subscription Agreement, any of the transactions contemplated hereby and thereby (xand the abandonment or termination hereof or thereof) or any matter forming the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following basis for such termination, and none of Parent, Merger Sub or any other Person shall be entitled to bring or maintain any claim, action or proceeding against any Company Related Party arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (yand the abandonment or termination hereof or thereof) if within 18 months after or any matters forming the basis for such termination termination; provided, however, that nothing in this Section 8.5(b) shall limit the rights of Parent and Merger Sub under Section 9.8. For the avoidance of doubt, subject to Section 9.8, in the event Parent or its designee shall receive payment from the Company of the Termination Fee and the Expenses referred to in this Section 8.5(b), the receipt of such Termination Fee and Expenses shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any loss or a Subsidiary damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Company enters into an agreement Related Parties shall have any further liability or obligation arising out of or in connection with respect tothis Agreement, the Subscription Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or consummatestermination hereof or thereof) or any matter forming the basis for such termination. Each of Parent and Merger Sub acknowledges and agrees that it has no right of recovery against, an Acquisition Proposaland in no event shall any of the Parent Related Parties seek to recover any damages from or make any claim against, then any Company Related Party (other than its rights against 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 under this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by ParentAgreement).
(c) In the event that this Agreement is terminated by the Company pursuant to Section 8.3(a) or Section 8.3(b), then Parent shall (x) pay, or cause to be paid, to the Company or its designee a termination fee of $6,000,000 (the “Parent Termination Fee”) in same-day funds, within two business days after such termination and (y) pay, or cause to be paid, to the Company in same-day funds, as promptly as possible (but in any event within two business days) following the delivery by the Company of an invoice therefor, all Expenses incurred by the Company and its Affiliates (other than Parent, Merger Sub or any members of the Consortium) in connection with the transactions contemplated by this Agreement; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. In the event that the Company or its designee shall receive full payment of the Parent Termination Fee and the Expenses reimbursement payment pursuant to this Section 8.5(c), the receipt of the Parent Termination Fee together with such Expenses and Expenses under Section 5.4(d) shall be the sole and exclusive remedy of the Company and any Company Related Party, and shall deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company, its Subsidiaries or any other Person arising out of or in connection with this Agreement, the Subscription Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and none of the Company, any Company Related Party or any other Person shall be entitled to bring or maintain any claim, action or proceeding against any Parent Related Party arising out of or in connection with this Agreement, the Subscription Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matters forming the basis for such termination. For the avoidance of doubt, the right of the Company and its designees to receive payment from Parent of the Parent Termination Fee and the Expenses referred to in this Section 8.5(c) shall be the sole and exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement or the Subscription Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Parent Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement or the Subscription Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. The Company acknowledges and agrees that it has no right of recovery against, and in no event shall any of the Company Related Parties seek to recover any damages from or make any claim against, any Parent agree Related Party (other than its rights against Parent or Merger Sub under this Agreement or against the Guarantors under their respective Limited Guaranties).
(d) Each of the parties hereto acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, the other parties would not have entered into this Agreement and that Agreement; accordingly, if the Company or Parent, as the case may be, fails to promptly pay the amount due pursuant to this Section 8.5, and, in order to obtain such amounts do not constitute a penalty payment, Parent or liquidated damages in the event of a breach of this Agreement by the Company. If , as the base may be, commences a suit which results in a judgment against the other party, with respect to Parent or Merger Sub, or parties, with respect to the Company fails to pay Parent the for amounts due under paragraph (b) above within the time periods specified thereinset forth in this Section 8.5, the Company such paying party shall pay the other party or parties, as applicable, its reasonable and documented costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentsuit.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, no party to this Agreement hereto (or any of its directors or officers) shall have any liability or further obligation to any other party hereunder to this Agreement, except (i) as set forth provided in this Section 8.02 9.05 and Section 9.01 and (ii) except that termination will not nothing herein shall relieve a breaching any party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
If (i) if Parent shall have terminated 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 (Aa) or (Bb) an Acquisition Proposal of Section 9.02 hereof or (ii) the Company shall have been publicly announced or otherwise communicated or made known terminated this Agreement pursuant to Section 9.03(b) hereof, then in any such case the Company Board (or any Person shall have publicly announcedpromptly, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time but in no event later than two days after the date of such termination or event, pay Parent in the manner set forth in the last sentence of this paragraph a termination fee of $9,000,000. If Parent shall have terminated 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 (xc) above) on of Section 9.02 hereof and, within one year after such termination, the Company shall have entered into a definitive agreement providing for an Acquisition Transaction, the Company shall promptly, but in no event later than two days after the date of execution such definitive agreement, pay Parent in the manner set forth in the last sentence of such agreement or consummation this paragraph a termination fee of an Acquisition Proposal$9,000,000. Any amount that becomes termination fee payable pursuant to under this Section 8.02(b) paragraph shall be paid by wire transfer the issuance to Parent of immediately available funds to an account designated by Parentshares of preferred stock of the Company having the terms set forth in Annex III.
(c) The Company and Parent agree that the agreement contained in paragraph (b) Upon termination of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages will return to the Company all copies in the event Parent's possession of a breach of this Agreement all non-public information supplied to Parent by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (Norand Corp /De/)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE IX, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from any willful breach of this Section 8.02 and Section 9.01 Agreement, and (ii) that the provisions set forth in the second sentence of Section 10.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent the sum a termination fee of $7.5 million 23,000,000 (the "“Termination Fee"”) if in the event of the termination of this Agreement is terminated as followspursuant to:
(i) if this Agreement is terminated by Parent Section 9.1(c) (other than pursuant to Section 8.01(f9.1(c)(v) or Section 9.1(c)(vi));
(gii) Section 9.1(d)(ii); or
(iiiii) Section 9.1(b)(iii) or, if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent or the Company pursuant Requisite Vote has not been obtained prior to termination of this Agreement, Section 8.01(e) and 9.1(b)(i), in either case, if, at or prior to the case time of any termination pursuant to clause (A) or (B) an Acquisition Proposal such failure, there shall have been publicly announced or otherwise communicated or made known an Acquisition Proposal relating to the Company, and within twelve (12) months after such termination there shall have been consummated, or a definitive agreement shall have been entered into providing for, an Acquisition Proposal (provided that, for purposes of this Section 9.2(b)(iii), all references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”). The Company Board (acknowledges that the agreements contained in this Section 9.2(b) are an integral part of the Transactions, and that, without these agreements, 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 9.2(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 9.2(b) or any Person shall have publicly announcedportion of such fee, 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual 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 and accepted by Parent pursuant to this Section 9.2(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Stride Rite Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE IX, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from any willful breach of this Section 8.02 and Section 9.01 Agreement, and (ii) that the provisions set forth in the second sentence of Section 10.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent the sum a termination fee of $7.5 million 23,000,000 (the "“Termination Fee"”) if in the event of the termination of this Agreement is terminated as followspursuant to:
(i) if this Agreement is terminated by Parent Section 9.1(c) (other than pursuant to Section 8.01(f9.1(c)(v) or Section 9.1(c)(vi));
(gii) Section 9.1(d)(ii); or
(iiiii) Section 9.1(b)(iii) or, if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent or the Company pursuant Requisite Vote has not been obtained prior to termination of this Agreement, Section 8.01(e) and 9.1(b)(i), in either case, if, at or prior to the case time of any termination pursuant to clause (A) or (B) an Acquisition Proposal such failure, there shall have been publicly announced or otherwise communicated or made known an Acquisition Proposal relating to the Company, and within twelve (12) months after such termination there shall have been consummated, or a definitive agreement shall have been entered into providing for, an Acquisition Proposal (provided that, for purposes of this Section 9.2(b)(iii), all references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”). The Company Board (acknowledges that the agreements contained in this Section 9.2(b) are an integral part of the Transactions, and that, without these agreements, 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 9.2(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 9.2(b) or any Person shall have publicly announcedportion of such fee, 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of J▇ ▇▇▇▇▇▇ C▇▇▇▇ & Co. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until made through the date of actual 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 and accepted by Parent pursuant to this Section 9.2(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and (ii) that financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) an Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall pay Parent have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the sum Company or any of $7.5 million (the "Termination Fee") if its Subsidiaries and thereafter this Agreement is terminated as follows:
by either Parent or the Company pursuant to Section 8.2(ii)or (iii) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.4(i); 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 promptly, but in no event later than two days after the date of execution such termination, pay Parent a termination fee of $1,600,000 and shall promptly, but in no event later than two days after being notified of such agreement by Parent, pay all of the charges and expenses, including those of the Exchange Agent, incurred by Parent or consummation Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of an Acquisition Proposal. Any amount that becomes $400,000, in each case payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) same day funds. The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered enter into this 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 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, Parent or Merger Sub commences a suit which results in a judgment against the amounts due under Company for the fee set forth in this paragraph (b) above within the time periods specified therein), the Company shall pay the to Parent or Merger Sub its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the prime lending rate prevailing during such period as published of The Chase Manhattan Bank, N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Sources: Merger Agreement (CSC Holdings Inc)
Effect of Termination and Abandonment. (a) In Except as provided in Section 8.5(b), in the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary but subject to Section 8.5(d), that (i) as no such termination shall relieve any party hereto of any liability for damages to the other party hereto resulting from any breach of this Agreement or fraud and (ii) the provisions set forth in this Section 8.02 8.5 and Section 9.01 and (ii) that 9.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement. In no event shall any party be liable for punitive damages.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (x) this Agreement is terminated pursuant to Section 8.2(a), Section 8.2(c) (and, in the case of Section 8.2(c), at the time of the expiration of the Offer referenced in Section 8.2(c), the sole unsatisfied Tender Offer Condition (other than those conditions that by their nature are to be satisfied at the Acceptance Time and the condition with respect to the delivery of certificates referenced in clause (6) of Exhibit A) is the Minimum Condition) or Section 8.4(b), (y) any Person shall have made a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination and (z) within twelve (12) months of such termination the Company shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal and such Acquisition Proposal is consummated at any time (provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “75%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.4(a); or
(iiiii) 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 (B8.3(a), 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Consolidation pursuant to this Article VIII, no party to this Agreement shall have any liability or further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Consolidation, the parties hereto agree that the Company shall pay to Parent the sum a termination fee of $7.5 4.0 million (the "“Termination Fee"”) if this Agreement is terminated as followsin the manner set forth below if:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.01(g); or
(ii) if (A) this Agreement is terminated by (A1) Parent pursuant to Section 8.01(b8.01(e) or (B2) by either Parent or the Company pursuant to Section 8.01(e8.01(c) and in the case of any termination pursuant to clause (A1) or (B2) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of the Company or 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 (B2), or the date of terminationtermination of this Agreement, in the case of clause (A1), then (x) the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following such termination, and (yB) if within 18 eighteen (18) months after such termination of this Agreement, the Company or a Subsidiary of the Company enters into an any 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 ProposalTransaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by ParentParent on the date of termination of this Agreement in the case of clause (i) above and on the date the Company enters into any agreement with respect to, or consummates, an Acquisition Transaction in the case of clause (ii) above.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Banknorth Group Inc/Me)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other person on the part of any party hereunder except hereto (or of any of its representatives or affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein and subject to Section 8.5(d) (including the limitation on liability set forth therein), no such termination shall relieve any party hereto of any liability for damages to the other party hereto resulting from a knowing or intentional breach of this Agreement or fraud and (ii) the provisions set forth in this Section 8.02 8.5, Section 6.14(b) (with respect to Parent’s reimbursement and indemnification obligations), Section 6.14(d), Section 8.6, Section 9.1, Section 9.3, Section 9.4, Section 9.5, Section 9.6, Section 9.7, Section 9.10, Section 9.11, Section 9.12, Section 9.13 and Section 9.01 9.14, the Confidentiality Agreement and the Guarantees (iito the extent set forth therein) that shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (x) (1) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 8.2(a) or Section 8.4(e) and any person shall have made and publicly disclosed a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination or (2) this Agreement is terminated pursuant to Section 8.4(b) and (y) within nine (9) months of such termination the Company shall have entered into a definitive agreement with respect to such Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (y) the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a), (c) or (gd); or
(iiiii) 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 (B8.3(a), 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.;
Appears in 1 contract
Sources: Merger Agreement (Primedia Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party written notice thereof shall be given to the other Parties, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement shall have become void and of no effect with no liability on the part of any liability Party (or further obligation to of any other party hereunder of its Subsidiaries or their respective Representatives), except (i) as set forth in with respect of this Section 8.02 8.5 and Section 9.01 Sections 6.3(b) (Parent and Merger Sub’s Confidentiality Obligation), 6.6 (Public Announcement), 6.9 (Fees and Expenses) and Article IX (Miscellaneous) which shall remain in full force and effect and (ii) that termination will not subject to Section 8.5(e), nothing in this Section 8.5(a) shall relieve a breaching party any Party from liability for any willful willful, or intentional breach of any covenantof, agreement, representation or warranty of fraud in connection with this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (i) if this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gSection 8.4(b); 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(e8.3(b) and in the case of any termination pursuant to clause or 8.3(c), or (iii) if (A) or (B) an Acquisition Proposal shall have been publicly announced made, proposed or otherwise communicated or made known (and not withdrawn) after the date hereof and prior to the Company Board Stockholders Meeting (or prior to the termination of this Agreement if there has been no Company Stockholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.2(a) or Section 8.2(b), and (C) at any Person shall have publicly announcedtime prior to the date that is 12 months after the date of such termination, communicated (x) the Company enters into any definitive acquisition agreement providing for an Acquisition Proposal, or made known (y) an intentionAcquisition Proposal is consummated (in each case of the foregoing clauses (x) and (y), whether or not conditionalthe Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)); provided, that for purposes of this Section 8.5(b)(iii), all references to make an “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”, then the Company shall pay or cause to be paid to Parent or its designee a termination fee of US$1,250,000 (the “Company Termination Fee”), within two (2) at any time Business Days after the date of this Agreement and such termination in the case of a termination referred to in clause (i), or immediately prior to or substantially concurrently with such termination in the taking case of a termination referred to in clause (ii), or substantially concurrently with the vote first of the shareholders of the Company contemplated by this Agreement at the Company Meeting, such events shall have occurred in the case of clause (Biii), in each case by wire transfer of same day funds to one or more accounts designated in writing by Parent. In the event that Parent or its designee shall receive full payment of the Company Termination Fee pursuant to this Section 8.5(b), the receipt of such Company Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub or any other Person arising out of or in connection with this Agreement or the date Financing Documents, any of termination, in the case of clause transactions contemplated hereby or thereby (A), then (xand the abandonment or termination hereof or thereof) or any matter forming the Company shall pay to Parent an amount equal to $1.0 million on the second Business Day following basis for such termination, and none of Parent, Merger Sub or any other Person shall be entitled to bring or maintain any Proceeding against any Company Related Party arising out of or in connection with this Agreement or the Financing Documents, any of transactions contemplated hereby or thereby (yand the abandonment or termination hereof or thereof) if within 18 months after or any matters forming the basis for such termination termination; provided, however, that nothing in this Section 8.5(b) shall limit the rights of Parent and Merger Sub under Section 9.8. In no event shall the Company or a Subsidiary be required to pay the Company Termination Fee on more than one occasion. For the avoidance of doubt, subject to Section 9.8, the right of Parent and its designees to receive payment from the Company of the Company enters into an agreement with respect to, or consummates, an Acquisition Proposal, then Termination Fee shall be the sole and exclusive remedy of the Parent Related Parties against the Company shall pay to Parent Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement or the Termination Fee (net of Financing Documents, 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreementhereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 upon payment of such amounts, together none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with interest on this Agreement or the amount Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such unpaid amounts at the prime lending rate prevailing during such period as published in termination. The Wall Street Journal, calculated on a daily basis from the date such amounts were required provisions of this Section 8.5(b) are intended to be paid until for the date benefit of, and shall be enforceable by, each Parent Related Party. For purposes of actual paymentthis Agreement, “Company Related Party” means the Company and its Subsidiaries and any of their respective former, current and future officers, employees, directors, partners, stockholders, management members or Affiliates; and “Parent Related Party” means Parent, Merger Sub, the equity providers and lenders that are parties to the Financing Documents, or any of their respective former, current and future general or limited partners, shareholders, financing sources, managers, members, agents, directors, officers, employees or Affiliates.
Appears in 1 contract
Sources: Merger Agreement (Trunkbow International Holdings LTD)
Effect of Termination and Abandonment. (a) In Subject to the following subsections (b) and (c), in the event of 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 (i) than as set forth in Section 9.1 and this Section 8.02 8.5) shall become void and of no effect without any liability other than Section 9.01 6.6, Section 6.8, this Section 8.5 and (ii) that Article IX, which shall survive such termination; provided, however, no such termination will not shall relieve a breaching any party from hereto of any liability for any willful or intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as follows:
(i) if this Agreement is terminated by the Company pursuant to Section 8.3(b), (ii) by Parent pursuant to Section 8.01(f8.4(d)(i), Section 8.4(d)(ii), Section 8.4(b) or Section 8.4(c), or (g); or
(iiiii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b8.4(e) or (BSection 8.4(d)(iii) 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 Meetingand, in the case of this clause (B)iii) of this Section 8.5(b) only, at the time of such termination a person shall have made an Acquisition Proposal that was publicly disclosed and not withdrawn and within nine (9) months following such termination the Company shall have entered into a definitive agreement providing for, or the date of terminationconsummated, in the case of clause (A)any Acquisition Proposal, then (x) then, the Company shall pay to Parent an amount equal to $1.0 million on 4,250,000 (the second Business Day following such termination, and (y“Break-Up Fee”) 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 in cash by wire transfer of immediately available funds to an account designated by Parent, no later than the same day as the date of termination of this Agreement or, with respect to a termination pursuant to clause (iii) above of this Section 8.5(b), the date entering into such definitive agreement or, if earlier, consummation of such transaction; provided that, in the case of a termination pursuant to clause (iii) above of this Section 8.5(b), the applicable Acquisition Proposal relates to a transaction or series of transactions involving, directly or indirectly, the sale of fifty percent (50%) or more of the outstanding shares of voting stock, capital stock or consolidated assets of the Company. It is acknowledged and agreed that (x) in no event shall the Company be obligated to pay the Break-Up Fee on more than one occasion and (y) payment by the Company of the Break-Up Fee (under circumstances where the Company is obligated to pay the Break-Up Fee) shall constitute conclusive evidence that this Agreement has been properly terminated and shall, notwithstanding anything to the contrary herein, relieve the Company of any further liability pursuant to this Agreement.
(c) The Company In the event that a court of competent jurisdiction makes a final and Parent agree non-appealable determination that (i) the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions Break-Up Fee payments contemplated by this Agreement, that without such agreement Parent would Section 8.5 were not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement paid by the Company. If the Company fails when due, in addition to being obligated to pay Parent the amounts due under paragraph (b) above within the time periods specified thereinsuch amounts, the Company shall pay the or reimburse Parent’s costs and expenses (including but not limited to reasonable and documented legal fees and expensesexpenses (other than allocated costs of internal legal counsel)) solely to the extent incurred by Parent in connection with any action in which Action by Parent prevails, including the filing of any lawsuit, taken or its Affiliates to collect payment of such amountsthe Break-Up Fee or (ii) the Company was not obligated to pay the Break-Up Fee under the circumstances of the termination of this Agreement, together then Parent shall pay or reimburse the Company’s costs and expenses (including but not limited to reasonable and documented legal fees and expenses (other than allocated costs of internal legal counsel)) solely to the extent incurred in connection with interest on the amount defense by the Company against any Action by Parent or its Affiliates to attempt to collect payment of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentBreak-Up Fee.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than as set forth in Section 9.01) shall have any become void and of no effect with no liability or further obligation to 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, except as otherwise provided herein, no such termination shall relieve any party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (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 of its stockholders or any Person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition Proposal) at any time after Proposal with respect to the date of Company and thereafter this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated is terminated 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 either the Company or a Subsidiary of Parent pursuant to Section 8.02(a)(ii)(B), (ii) this Agreement is terminated by the Company enters into an agreement with respect to, pursuant to Section 8.03 or consummates, an Acquisition Proposal(iii) this Agreement is terminated by the Parent pursuant to Section 8.04, then the Company shall pay to Parent the Termination Fee promptly, but in no event later than five (net of any payment made pursuant to clause (x5) above) on Business Days after the date of execution such termination, pay a termination fee, representing liquidated damages, of such agreement or consummation of an Acquisition Proposal. Any amount that becomes $3,000,000 (the “ParentTermination Fee”) payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated specified by Parent.
(c) In the event that this Agreement is terminated by the Company pursuant to (i) Section 8.02(a)(i) due to the failure of Parent (A) to have sufficient funds to deliver the aggregate Merger Consideration in connection with the consummation of the Merger or (B) to have sold, by September 30, 2005 (the “Equity Sale Date”), common equity in an amount not less than $54,000,000, or (ii) Section 8.02(b)(ii) due to Parent’s breach of Section 6.20 (after giving effect to the cure period specified therein), then Parent shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay a termination fee, representing liquidated damages, of $3,000,000 (the “Company Termination Fee”) payable by wire transfer in immediately available funds to an account specified by the Company. Notwithstanding the foregoing, the Company Termination Fee shall not be payable pursuant to clause (i) (B) above unless Parent shall have received, at any time upon Parent’s request prior to the Equity Sale Date, written confirmation from the Company that it is not in material breach of any representation, warranty or covenant in this Agreement and that it believes, reasonably and in good faith, that all of the conditions to Parent’s obligation to effect the Merger will be satisfied on or prior to December 31, 2005.
(d) The Company and Parent agree that the agreement agreements contained in paragraph paragraphs (b) of this Section 8.02 is and (c) above are an integral part of the transactions contemplated by this Agreement, that without such agreement agreements Parent and the Company would not have entered into this Agreement Agreement, and that such amounts specified therein do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Companypenalty. If the Company applicable party fails to promptly pay Parent to the other party the amounts due under paragraph (b) or (c) above within the time periods period specified therein, the Company party required to make payment thereunder shall pay the all costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent the other party in connection with any action in which Parent prevailsaction, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis of Bank of America from the date such amounts were required to be paid until the date of actual paymentpaid.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 and (ii) that termination will not relieve a breaching party from of no effect with no liability for any willful breach on the part of any covenantparty hereto (or of any of its directors, agreementofficers, representation employees, agents, legal and financial advisors or warranty other representatives); provided, however, that no such termination shall relieve any party hereto of any liability or damages resulting from any breach of this Agreement giving rise prior to such termination.
(b) The In the event that this Agreement is terminated by the Company pursuant to Section 8.3(a) or by Parent pursuant to Section 8.4(a), (b) or (c), then the Company shall promptly, but in no event later than two days after the date of such termination (except in the case of a termination pursuant to Section 8.3(a), in which case the payment referred to below shall be made at or prior to the time of such termination), pay Parent the sum a termination fee (as liquidated damages) of $7.5 million 200,000,000 (the "Termination Fee") if by wire transfer of same day funds to an account previously designated in writing by Parent to the Company. In the event that (i) an Acquisition Proposal shall have been made to the Company after the date hereof or any Person (other than Parent or any of its Affiliates) shall have publicly announced after the date hereof an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and thereafter 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(e8.2(b) and (ii) (x) the Person making the Acquisition Proposal which was outstanding at the time of the Shareholders Meeting (the "Acquiring Party") acquires, by purchase, merger, consolidation, sale, assignment, lease, transfer or otherwise, in one transaction or any related series of transactions within twelve months after a termination of this Agreement, a majority of the case voting power of any termination pursuant to clause (A) the outstanding securities of the Company or all or substantially all of the assets of the Company and its Subsidiaries taken as a whole or (By) there is consummated a merger, consolidation or similar business combination between the Company or one of its Subsidiaries and the Acquiring Party or one of its Subsidiaries within twelve months after the relevant termination of this Agreement, or (z) within twelve months after termination of this Agreement, the Company or one of its Subsidiaries enters into a binding agreement with the Acquiring Party for such an Acquisition Proposal acquisition, merger, consolidation or similar business combination then the Company shall have been publicly announced promptly, but in no event later than two days after the earlier of consummation of the transaction or otherwise communicated transactions with the Acquiring Party or made known one of its Subsidiaries or the execution of a binding agreement between the Company and the Acquiring Party, pay Parent the Termination Fee in same day funds to an account previously designated by Parent to the Company Board (in writing. In the event that this Agreement is terminated by the Company pursuant to Section 8.3(b)(y) or any Person by Parent or the Company pursuant to 8.2(a) as a result of the failure to meet the condition set forth in Section 7.1(e) or 8.2(c) hereof, then Parent shall, or shall have publicly announcedcause Holdco to, communicated or made known an intentionpromptly, whether or not conditional, to make an Acquisition Proposal) at any time but in no event later than two days 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 pay to the Company or a Subsidiary termination fee (as liquidated damages) of $50,000,000 (the Company enters into an agreement with respect to, or consummates, an Acquisition Proposal, then the Company shall pay to Parent the "Regulatory 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 ProposalFee"). Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5(b) are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements neither Parent nor the Company would not have entered into this 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 Agreement; accordingly, if the Company or Parent fails to promptly pay Parent the any amounts due under paragraph (b) above within pursuant to this Section 8.5(b), and in order to obtain such payment Parent or the time periods specified thereinCompany as the case may be commences a suit which results in a judgment against the Company for payment of all or a portion of the Termination Fee, or against Parent for payment of all or a portion of the Regulatory Termination Fee, the Company shall pay to Parent or Parent shall pay the Company, as the case may be, its costs and expenses (including its reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing of The Chase Manhattan Bank in effect from time to time during such period as published period. The Company's payment of the Termination Fee shall be the sole and exclusive remedy of Parent against the Company and any of its Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives in The Wall Street Journal, calculated on the event this Agreement is terminated and the Termination Fee is payable whether or not there has been a daily basis from the date such amounts were required to be paid until the date breach of actual paymentthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Nisource Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVIII (Termination; Amendment; Waiver), no party written notice thereof shall be given to the other Parties, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement (other than this Section 8.5 (Effect of Termination and Abandonment) and Sections 6.3(c) (Parent's and Merger Sub's Confidentiality Obligation), 6.6 (Public Announcement), 6.9 (Fees and Expenses) and Article IX (Miscellaneous)) shall have become void and of no effect with no liability on the part of any Party (or of any of its Subsidiaries or their respective Representatives); provided, that nothing in this Section 8.5 (Effect of Termination and Abandonment) shall relieve any Party from liability for fraud committed prior to such termination or further obligation for any intentional breach prior to such termination of any other party hereunder except (i) as of its representations, warranties, covenants or agreements set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (i) if this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gb); or
, (ii) if this Agreement is terminated by (A) Parent the Company pursuant to Section 8.01(b) 8.3(c), or (Biii) this Agreement is terminated by either Parent or the Company pursuant to Section 8.01(e8.2(a) without the Company Shareholder Approval having been obtained or 8.2(b) and, after the date hereof and in prior to the case termination of any termination pursuant to clause (A) or (B) an this Agreement, a bona fide Acquisition Proposal shall have been publicly announced or otherwise communicated or publicly made known to known, and not withdrawn, and within twelve (12) months after such termination the Company Board (or any Person shall have publicly announced, communicated or made known of the Subsidiaries consummates an intentionAcquisition Proposal, whether or not conditionalit was the same Acquisition Proposal (provided, that for purposes of this Section 8.5(b), all references to make an "20%" in the definition of "Acquisition Proposal" shall be deemed to be references to "50%"), then the Company shall (x) at any time after pay or cause to be paid to Parent or its designee a termination fee of US$3,000,000 (the "Company Termination Fee"), on 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 reimburse Parent as promptly as possible (but in any event within 18 months after such termination five (5) Business Days) following the Company delivery by Parent of an invoice therefor, all Expenses, up to a maximum of US$1,000,000, incurred by Parent, Merger Sub and their Affiliates (other than the Company) in connection with the transactions contemplated hereby, in each case, by wire transfer of same day funds to one or a Subsidiary more accounts designated in writing by Parent. In the event that Parent or its designee shall receive full payment 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 and Expenses reimbursement pursuant to this Section 8.02(b) 8.5(b), the receipt of such Company Termination Fee and Expenses shall be paid by wire transfer of immediately available funds deemed to an account designated be liquidated damages for any and all losses or damages suffered or incurred by Parent.
(c) The Company and Parent agree that , Merger Sub or any other Person arising out of or in connection with this Agreement or the agreement contained in paragraph (b) of this Section 8.02 is an integral part Financing Documents, any of the transactions contemplated by this Agreementhereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty none of Parent, Merger Sub or liquidated damages in the event any other Person shall be entitled to bring or maintain any Proceeding against any Company Related Party arising out of a breach of this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent or in connection with this Agreement or the Financing Documents, any action of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matters forming the basis for such termination; provided, however, that nothing in which this Section 8.5(b) shall limit the rights of Parent prevailsand Merger Sub under Section 9.8 (Specific Performance). For the avoidance of doubt, including subject to Section 9.8 (Specific Performance), the filing right of Parent and its designees to receive payment from the Company of the Company Termination Fee and the Expenses referred to in this Section 8.5(b) shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any lawsuitloss or damage suffered or incurred arising out of or in connection with this Agreement or the Financing Documents, taken to collect any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amounts, together none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with interest on this Agreement or the amount Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such unpaid amounts at termination. For purposes of this Agreement, "Company Related Party" means the prime lending rate prevailing during such period as published in Company and its Subsidiaries and any of their respective former, current and future officers, employees, directors, partners, stockholders, management members or Affiliates; and "Parent Related Party" means Parent, Merger Sub, their Subsidiaries and any of their respective former, current and future officers, employees, directors, partners, stockholders, management members or Affiliates. The Wall Street Journal, calculated on a daily basis from the date such amounts were required provisions of this Section 8.5(b) are intended to be paid until for the date of actual paymentbenefit of, and shall be enforceable by, each Company Related Party.
Appears in 1 contract
Sources: Merger Agreement (3SBio Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, no party to this Agreement shall have any become void and of no effect (except for Section 6.7(b), this Section 8.6 and ARTICLE IX) with no liability or further obligation to any other Person on the part of any party hereunder except hereto (i) as set forth in this or of any of its stockholders, Representatives or Affiliates), provided that, subject to the Reverse Termination Fee being paid pursuant to Section 8.02 and Section 9.01 and (ii) that termination will not 8.6(g), nothing herein shall relieve a breaching party the Company, Parent or Merger Sub from liability for any willful intentional breach of any covenant, agreement, representation hereof or warranty of this Agreement giving rise fraud prior to such termination.
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if If this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (gSection 8.4(b); 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 immediately available funds funds), within two (2) business days after such termination, a non-refundable fee in an amount equal to an account designated by Parent$250,000,000 (“Termination Fee”).
(c) The If this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall pay to Parent (by wire transfer of immediately available funds), at or prior to such termination, the Termination Fee.
(d) If this Agreement is terminated (i) by Parent pursuant to Section 8.4(c) or (ii) by the Company or Parent pursuant to Section 8.2(a) (and the conditions set forth in Section 7.1(b) and Section 7.1(c) shall have been satisfied as of the End Date) or Section 8.2(c) hereof and, in the case of clauses (i) and (ii) immediately above, (A) prior to such termination (in the case of termination pursuant to Section 8.2(a) or 8.4(c)) or the Stockholders Meeting (in the case of termination pursuant to Section 8.2(c)), a Takeover Proposal shall have been publicly disclosed and not withdrawn (in the case of Section 8.2(c)) or communicated to the Company, the Company Board or been publicly disclosed and not withdrawn (in the case of Sections 8.2(a) or 8.4(c)), and (B) within twelve (12) months following the date of such termination of this Agreement the Company shall have (x) entered into a definitive agreement with respect to, (y) approved or recommended to the Company’s stockholders, or (z) consummated, a Takeover Proposal (in each case, whether or not such Takeover Proposal is the same as the original Takeover Proposal made, communicated or publicly announced), then the Company shall pay to Parent agree that (by wire transfer of immediately available funds), upon the earlier of the Company entering into the agreement contained in paragraph (b) with respect to such Takeover Proposal or the consummation of such transaction, the Termination Fee. For purposes of this Section 8.02 is 8.6(d), all references in the definition of Takeover Proposal to 20% shall be deemed to be references to “a majority.” The parties acknowledge and agree that in no event shall the Company be obligated to pay the Termination Fee on more than one occasion. The provisions of this Section 8.6(d) shall not apply if the provisions of Section 8.6(g) are applicable.
(e) The Company acknowledges and hereby agrees that the provisions of this Section 8.6 are an integral part of the transactions contemplated by this AgreementAgreement (including the Merger), that and that, without such agreement provisions, Parent and Merger Sub would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If the Company fails shall fail to pay Parent in a timely manner the amounts due under paragraph (b) above within pursuant to this Section 8.6, and, in order to obtain such payment, Parent makes a claim against the time periods specified thereinCompany that results in a judgment against the Company, the Company shall pay to Parent the reasonable and documented out-of-pocket costs and expenses of Parent (including its reasonable legal attorneys’ 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 amountssuit, together with interest on the amount of any such unpaid amounts set forth in this Section 8.6 at the prime lending rate prevailing during of Citibank, N.A. in effect on the date such period as published in The Wall Street Journal, payment was required to be made plus 1% per annum. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, and on the basis of a 360-day year.
(f) If this Agreement is terminated and the Termination Fee is payable to Parent as a result thereof, in addition to the payment of the Termination Fee, the Company shall reimburse Parent and Merger Sub for all expenses in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $10,000,000 incurred by Parent and Merger Sub (the “Expense Fee”) which Expense Fee shall be payable at the same time as the Termination Fee. For purposes of the preceding sentence, expenses means all reasonable and documented out-of-pocket expenses (including all reasonable fees and expenses of outside counsel, accountants, financing sources, investment bankers, experts and consultants) incurred in connection with or related to the due diligence, authorization, preparation, negotiation, execution and performance of this Agreement, the obtaining of the financing for the Merger, and all other matters related to the consummation of the Merger.
(g) In the event that (i) this Agreement is terminated by Parent or (ii) the Merger has not been consummated by the End Date, except in either case under circumstances where the Board of Directors of Parent has determined in accordance with its good faith business judgment that Parent is permitted under this Agreement to terminate this Agreement or is not required to consummate the Merger prior to the End Date, then Parent shall promptly following receipt of written notice from the Company requesting such payment, pay the Company a non-refundable fee equal to $200,000,000 (the “Reverse Termination Fee”), payable by wire transfer of same day funds to an account designated in writing to Parent by the Company. The Reverse Termination Fee shall be the Company’s exclusive remedy for damages in circumstances where it is applicable (unless in any such circumstance it is requested in accordance with the preceding sentence but not paid, in which event the Company shall be entitled to elect to seek either the Reverse Termination Fee or, subject to the last sentence of Section 9.8, damages (but not both)); and, once paid, the Company shall have no right to specific performance under Section 9.9, it being understood that if the Merger is not consummated because Parent has not obtained the Requisite Transaction Funds or under circumstances where the Board of Directors of Parent has not made the foregoing determination, the Company may elect to seek specific performance under Section 9.9 in lieu of requesting payment of the Reverse Termination Fee or seeking damages if the Reverse Termination Fee is requested but not paid. For the avoidance of doubt, (i) the Reverse Termination Fee will not be payable if the Merger is not consummated as a result of antitrust related matters, including Parent’s breach of its obligations under Section 6.5 with respect to using its reasonable best efforts to obtain antitrust clearance for the Merger, but, in the event of such breach, the Company shall be entitled to seek damages or specific performance under Section 9.9, and (ii) if a determination by the Board of Directors of Parent referred to in the first sentence of this paragraph is shown by final judicial determination to not have been a good faith business judgment (including, for example, if made under circumstances where the Merger is not consummated because Parent has not obtained the Requisite Transaction Funds), the Company shall be entitled to elect to be paid the Reverse Termination Fee in accordance with the first sentence of this paragraph.
(h) Parent and Merger Sub acknowledge and hereby agree that the provisions of this Section 8.6 are an integral part of the transactions contemplated by this Agreement (including the Merger), and that, without such provisions, the Company would not have entered into this Agreement. If Parent shall fail to pay in a timely manner the amounts due pursuant to this Section 8.6, and, in order to obtain such payment, the Company makes a claim against Parent that results in a judgment against Parent, Parent shall pay to the Company the reasonable and documented out-of-pocket costs and expenses of the Company (including its reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amounts set forth in this Section 8.6 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made plus 1% per annum. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, and on the basis of a 360-day year.
(i) If this Agreement is terminated and the Reverse Termination Fee is payable to the Company as a result thereof, in addition to the payment of the Termination Fee, the Parent shall reimburse the Company for all expenses in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $10,000,000 incurred by the Company (the “Company Expense Fee”) which Company Expense Fee shall be payable at the same time as the Reverse Termination Fee. For purposes of the preceding sentence, expenses means all reasonable and documented out-of-pocket expenses (including all reasonable fees and expenses of outside counsel, accountants, financing sources, investment bankers, experts and consultants) incurred in connection with or related to the due diligence, authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of the Requisite Company Vote, and all other matters related to the consummation of the Merger.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement by either Buyer or the Company as provided in Section 8.01, this Agreement shall forthwith become void and have no effect, and none of Buyer, the abandonment Company, any of their respective Subsidiaries or any of the Merger pursuant to this Article VIII, no party to this Agreement officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or further obligation to any other party hereunder in connection with the transactions contemplated hereby, except that Section 6.03 (iPress Releases), Section 6.13 (Confidentiality Agreement), Section 9.05 (Expenses) as set forth in and this Section 8.02 and Section 9.01 and (ii) that all other obligations of the parties specifically intended to be performed after the termination will not relieve a breaching party of this Agreement shall survive any termination of this Agreement; provided, however, that, notwithstanding anything to the contrary herein, neither Buyer nor the Company shall be relieved or released from liability for any liabilities or damages arising out of its willful breach of any covenant, agreement, representation or warranty provision of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event this Agreement is terminated by Parent Buyer pursuant to Section 8.01(f) and 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 (gy) entered into a definitive agreement with respect to an Acquisition Transaction, the Company shall pay to Buyer an amount equal to $1,600,000 (the “Termination Fee”); or
(ii) if . In the event this Agreement is terminated by (A) Parent Buyer pursuant to Section 8.01(b8.01(f) or and neither of the other conditions of the preceding sentence are satisfied, the Company shall pay to Buyer an amount equal to $800,000 and all references herein to “Termination Fee” shall mean such amount.
(Bc) In the event that this Agreement is terminated by either Parent Buyer or the Company pursuant to Section 8.01(e) or Section 8.01(b) due to the failure to obtain the approval of the Company’s shareholders required for the consummation of the Merger, and in the case of any termination pursuant to clause (A) or (Bi) an Acquisition Proposal with respect to the Company shall have been publicly announced announced, disclosed 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 senior management of the date of this Agreement and Company prior to the taking Company Meeting or prior to the date specified in Section 8.01(b), as applicable, and (ii) within 12 months of the vote of the shareholders of such termination, 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 shall have (x) the Company shall pay recommended to Parent its shareholders or consummated a transaction qualifying as an amount equal to $1.0 million on the second Business Day following such termination, and Acquisition Transaction or (y) if within 18 months after such termination the Company or entered into a Subsidiary of the Company enters into an definitive agreement with respect to, or consummates, to an Acquisition ProposalTransaction, then the Company shall pay to Parent Buyer an amount equal to the Termination Fee. For purposes of this Section 8.02(c), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%.”
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.01(c) 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 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 8.01(c) 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 pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.02(d), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%.” Notwithstanding the foregoing, for purposes of this Section 8.02(d) only, the Termination Fee shall not be payable to Buyer if the Acquisition Transaction referred to in the immediately preceding sentence shall be for an aggregate consideration (net whether payable to Company shareholders, the Company or the Company Bank) equal to or less than $20 million (whether payable in cash, stock or other consideration).
(e) Any payment of any payment the Termination Fee required to be 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) 8.02 shall be paid made within two (2) Business Days after the date of the event giving rise to the obligation to make such payment. All payments under this Section 8.02 shall be made by wire transfer of immediately available funds to an account designated by ParentBuyer.
(cf) The Buyer and the Company and Parent agree acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this AgreementAgreement and that, that without such agreement Parent these agreements, Buyer would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If Accordingly, if the Company fails promptly to pay Parent any amount due pursuant to this Section 8.02 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinamount set forth in this Section 8.02, the Company shall pay the to Buyer its costs and expenses (including reasonable legal attorneys’ 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 amountssuit, together with interest on the amount of any such unpaid amounts the Termination Fee at the prime lending rate prevailing during such period (as published reported in The Wall Street JournalJournal or, calculated if not reported therein, in another authoritative source) on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 8.5 or Sections 5.2(c), 5.4, 6.11, 9.4 and Section 9.01 9.8) shall become void and of no effect with no liability on the part of any party hereto (ii) or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, that no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that this Agreement is terminated pursuant to (i) Section 8.3(a) or Section 8.4(a), (ii) Section 8.4(b) arising out of a breach of a representation or warranty of the Company or an action by the Company or failure to take an action by the Company which results in a breach of a covenant by the Company; or (iv) Section 8.4(c), (d) or (e)[(other than termination by Parent under Section 8.4(e) if the Dissenting Shares of Company Common Stock exceed ten percent (10%) of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time)]; then the parties acknowledge that Parent will suffer direct and substantial damages, which damages cannot be determined with reasonable certainty. To compensate Parent for such damages, and in addition to any other remedies that Parent, Merger Sub or their affiliates may have with respect to this Agreement, the Company shall pay Parent the sum a termination fee of $7.5 million (1,200,000 and reimburse Parent for reasonable expenses incurred in connection with 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 transactions contemplated by this Agreement at (collectively, the Company Meeting, "TERMINATION FEE") in the case of clause (B), or the date of termination, in the case of clause (A), then (x) the Company shall pay immediately available funds prior 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 . It is specifically agreed that 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 amount 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 be paid pursuant to this Section 8.02(b8.5(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) represents liquidated damages and is not a penalty. The Company and Parent agree hereby waives any right to set-off or counterclaim against such amount. The Company acknowledges that the agreement contained in paragraph (b) of this Section 8.02 8.5(b) is an integral part of the transactions contemplated by this Agreement, that and that, without such agreement agreement, the Company, Parent and Merger Sub would not have entered into this 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 Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the amounts due under paragraph (b) above within the time periods specified thereinCompany for any amount required to be paid pursuant to this Section 8.5, the Company shall pay the Parent its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing during of Morgan Guaranty Trust Company of New York in effect from time to time ▇▇▇▇▇g such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentplus two percent.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other person on the part of any party hereunder except hereto (i) as or of any of its Representatives or affiliates); provided, that the provisions set forth in this Section 8.02 8.5, Section 6.9 (Public Announcements), Section 6.13(b) (with respect to Parent’s reimbursement and indemnification obligations), Section 9.01 8.6 (Expenses), Section 9.1 (Non-Survival of Representations, Warranties, Covenants and Agreements), Section 9.2 (iiNotices), Section 9.5 (Entire Agreement; Assignment), Section 9.6 (Parties in Interest), Section 9.7 (Governing Law), Section 9.11 (Jurisdiction), Section 9.13 (Waiver of Jury Trial), the Confidentiality Agreements and the Guarantees (to the extent set forth therein) that shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise and abandonment of the Merger pursuant to such terminationthis ARTICLE VIII.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (A) 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 (A8.2(a) or Section 8.2(b), (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 intentionProposal, whether or not conditional, shall have been made public and not withdrawn after the date hereof but prior to make an Acquisition Proposalthe termination of this Agreement pursuant to Section 8.2(a) at any time or, with respect to termination pursuant to Section 8.2(b), prior to the Stockholders Meeting, and (C) after the date of this Agreement and prior to the taking date that is twelve (12) months following the termination of the vote of the shareholders of this Agreement, the Company contemplated by this Agreement at consummates an Acquisition Proposal (whether or not such Acquisition Proposal was the Company Meeting, same Acquisition Proposal referred to in the case of preceding 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 provided that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) for purposes of this Section 8.02 is an integral part 8.5(b)(i), the references to “15%” in the definition of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into Acquisition Proposal shall be deemed to be references to “50%”);
(ii) this Agreement and that such amounts do not constitute a penalty is terminated by Parent pursuant to Section 8.4(a) or liquidated damages in the event of a breach of Section 8.4(b); or
(iii) this Agreement is terminated by the Company. If the Company fails pursuant to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.Section 8.3(a);
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any of its Representatives or Affiliates); provided, however, that (i) as subject to the limitations set forth in Section 8.5(b) and (c), no such termination shall relieve any party hereto of any liability for damages to the other party hereto resulting from any willful and material breach of this Agreement or fraud and (ii) the provisions set forth in this Section 8.02 8.5, Section 6.10, the indemnification and reimbursement obligations of Parent pursuant to Section 9.01 6.14(b), Sections 9.2 through 9.14, the Confidentiality Agreements, the Equity Financing Commitment Letter (to the extent set forth therein) and the Termination Equity Commitment Letter (iito the extent set forth therein) that shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (x) this Agreement is terminated (1) before obtaining the Company Stockholder Approvals, by either Parent or the Company pursuant to Section 8.01(f8.2(a) (the section relating to the Termination Date) or (g); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B2) by either Parent or the Company pursuant to Section 8.01(e8.2(b) and in (the case of any termination pursuant section relating to clause (Afailure to receive the Company Stockholder Approvals) or (B3) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known by Parent pursuant to Section 8.4(b) (the Company Board section relating to breach of representations and covenants), (or y) any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time Proposal after the date of this Agreement but prior to such termination (and such Acquisition Proposal, if public, shall not have been publicly withdrawn prior to such termination or, with respect to a termination pursuant to Section 8.2(b), prior to the taking Stockholders Meeting) and (z) within 12 months of such termination the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or consummated any Acquisition Proposal (provided that for purposes of this clause (z) the references to “20%” in subsections (B)(1) and (B)(2) of the vote definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (the shareholders of section relating to a Company Adverse Recommendation Change); or
(iii) this Agreement is terminated by the Company contemplated by this pursuant to Section 8.3(a) (the section relating to termination to enter into an Alternative Acquisition Agreement at that constitutes a Superior Proposal); then the Company Meeting, shall (A) in the case of clause (B)i) above, or concurrently with the date of terminationthe applicable event referred to in sub-clause (i)(z),, (B) 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 (xii) above) on , no later than two Business Days after the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable pursuant to this Section 8.02(btermination and (C) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event case of a breach of this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph clause (biii) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.above,
Appears in 1 contract
Sources: Merger Agreement (Rue21, Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than as set forth in Section 9.01) shall have any become void and of no effect with no liability or further obligation to 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, except as otherwise provided herein, no such termination shall relieve any party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent:
(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) that an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known after the date of this Agreement to the Company Board (or any Person shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition Proposal) at any time after Proposal with respect to the date of Company and thereafter, this Agreement and prior to the taking of the vote of the shareholders of is terminated (A) by the Company contemplated pursuant to Section 8.03(a), (B) by this Agreement at the Company Meeting, in the case of clause (Bor Parent pursuant to Section 8.02(b)(ii), or the date of termination, in the case of clause (A), then C) by Parent pursuant to Section 8.04; and within twelve (x12) 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 shall have entered into an agreement with respect to, or consummates, relating to an Acquisition ProposalProposal or any Acquisition Proposal shall have been consummated, then the Company shall pay to Parent the Termination Fee promptly, but in no event later than two (net of any payment made pursuant to clause (x2) above) on Business Days after the date of execution such event, pay the a termination fee representing liquidated damages, of such agreement or consummation of an Acquisition Proposal. Any amount that becomes $4,000,000 (the “Termination Fee”) payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated specified by Parent.
(c) The In the event that:
(i) the Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into terminates this Agreement and that such amounts do not constitute pursuant to Section 8.03(b) as a penalty or liquidated damages in the event result of a Parent’s breach of this Agreement by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.Section 5.03(g); or
Appears in 1 contract
Sources: Merger Agreement (Metrocorp Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIII, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 8.5 and in Section 9.01 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its respective Representatives); provided that no such termination shall relieve any party hereto (i) from any liability for damages to any other party resulting from fraud or any Intentional Breach prior to such termination by such party in any material respect of its covenants or agreements set forth in this Agreement that shall have resulted in the failure of the Mergers to be consummated, and the aggrieved party shall be entitled to all rights and remedies available at Law or in equity or (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenantobligation to pay, agreementif applicable, representation the Company Termination Fee or warranty of the Parent Termination Fee pursuant to this Agreement giving rise to such terminationSection 8.5.
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if If this Agreement is terminated as follows:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) 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 8.3(c), then the Company Board shall, within two (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal2) at any time Business Days 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, such termination in the case of clause (B), i) or the date of termination, concurrently with such termination in the case of clause (Aii), then (x) the Company shall pay to Parent an amount a fee equal to $1.0 million on 35,000,000 (the second Business Day following such termination, and (y“Company Termination Fee”) 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 immediately available funds to an account designated in writing by Parent.
(c) The If this Agreement is terminated by the Company pursuant to Section 8.3(a) then Parent shall, within two (2) Business Days after such termination, pay the Company a fee equal to the $128,000,000 (the “Parent Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by the Company.
(d) If (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) or 8.2(b) or (B) by Parent pursuant to Section 8.4(b), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement, a bona fide Company Acquisition Proposal shall have been made to the Company or any of its Subsidiaries, or the Company’s board of directors, or shall have been made directly to the Company’s shareholders and, in each case, not withdrawn, (iii) in the case of a termination pursuant to Section 8.2(a), the conditions set forth in Sections 7.1(b) and Parent agree that 7.1(c) shall have been satisfied, and (iv) within twelve (12) months after the agreement contained date of a termination in paragraph either of the cases referred to in clauses (bi)(A) and (i)(B) of this Section 8.02 8.5(d), the Company consummates or enters into a definitive agreement with respect to any Company Acquisition Proposal (that is eventually consummated), then the Company shall pay the Company Termination Fee concurrently with such consummation by wire transfer of immediately available funds to an account designated in writing by Parent; provided that solely for purposes of this Section 8.5(d), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “twenty (20%) or more” shall be deemed to be references to “fifty percent (50%) or more”.
(e) If (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) or 8.2(c) or (B) by the Company pursuant to Section 8.3(b), (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 made to Parent or any of its Subsidiaries, or Parent’s board of directors, or shall have been made directly to Parent’s shareholders and, in each case, not withdrawn, (iii) the board of directors of Parent shall not have made a Parent Change in Recommendation prior to such termination referred to in clause (i) of this sentence, ((iv) in the case of a termination pursuant to Section 8.2(a), the conditions set forth in Sections 7.1(b) and 7.1(c) shall have been satisfied, and (v) within twelve (12) months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this Section 8.5(e), Parent consummates or enters into a definitive agreement with respect to any Parent Acquisition Proposal (that is eventually consummated), then Parent shall pay the Parent Termination Fee concurrently with such consummation by wire transfer of immediately available funds to an account designated in writing by the Company; provided that solely for purposes of this Section 8.5(e), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 6.3(d), except that the references to “twenty (20%) or more” shall be deemed to be references to “fifty percent (50%) or more”.
(f) If this Agreement is terminated by Parent or the Company (i) pursuant to Section 8.2(d), but only if the applicable Law or Order permanently restraining, enjoining or otherwise prohibiting consummation of the Mergers arises under an Antitrust Law, or (ii) pursuant to Section 8.2(a) and, in the case of this clause (ii), at the time of such termination, all of the conditions set forth in Article VII shall have been satisfied or, to the extent permitted by Law, waived in accordance with the terms hereof (other than (A) the conditions set forth in Section 7.1(b) or Section 7.1(c) (but for purposes of Section 7.1(c), only if the failure to be satisfied is due to a Law or Order arising under an Antitrust Law) or (B) those conditions that by their nature are to be satisfied at the Closing or on the Closing Date, provided that such conditions were capable of being satisfied if the Closing and the Closing Date had occurred on the date of such termination), then Parent shall, within two (2) Business Days after such termination, pay the Company a fee equal to $35,000,000 (the “Reverse Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by the Company; provided, however, that no amount shall be payable by Parent pursuant to this Section 8.5(f) in the event that a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or that any such representation and warranty becoming untrue after the date of this Agreement, is a proximate cause of the failure of the condition set forth in Section 7.1(b) or Section 7.1(c) to be satisfied.
(g) Each party acknowledges that the agreements contained in this Section 8.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, no party would not have entered into this 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 Agreement; accordingly, (i) if the Company fails to pay promptly the amount due pursuant to Section 8.5(b) or Section 8.5(d) (any such amount due, a “Company Payment”), and, in order to obtain such Company Payment, Parent commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinapplicable Company Payment, or any portion thereof, the Company shall pay the to Parent its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the Company Payment at the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were Company Payment was required to be paid until from such date through the date of actual paymentfull payment thereof, and (ii) if Parent fails to pay promptly the amount due pursuant to Section 8.5(c), Section 8.5(e) or Section 8.5(f) (any such amount due, a “Parent Payment”), and, in order to obtain such Parent Payment, the Company commences a suit which results in a judgment against Parent for the applicable Parent Payment, or any portion thereof, 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 Parent Payment at the prime rate of Citibank N.A. in effect on the date such Parent Payment was required to be paid from such date through the date of full payment thereof. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion, and in no event shall Parent be required to pay the Parent Termination Fee or the Reverse Termination Fee on more than one occasion. Notwithstanding anything herein to the contrary, in no event shall Parent be required to pay the Reverse Termination Fee if the Parent Termination Fee is payable.
Appears in 1 contract
Sources: Merger Agreement (Univar Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE X, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 10.5 and Section 9.01 11.1) shall become void and (ii) that termination will not relieve a breaching party from of no effect with no liability for any willful breach on the part of any covenantparty hereto (or of any of its directors, agreementofficers, representation employees, agents, legal and financial advisors or warranty 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 fraud or Willful Breach of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event that this Agreement is terminated by Parent Theta or Kappa 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 (B10.2(c), or the date then, Kappa shall reimburse Theta for all of terminationits reasonable Expenses, up to a maximum amount of $20,000,000. The fees provided for 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(b10.5(b) shall be paid by wire transfer of immediately available same day funds to an account designated by ParentTheta within two (2) Business Days after such termination.
(c) In the event that this Agreement is terminated by Theta or Kappa pursuant to Section 10.2(b), then, Theta shall reimburse Kappa for all of their reasonable Expenses, up to a maximum amount of $20,000,000. The Company fees provided for in this Section 10.5(c) shall be paid by wire transfer of same day funds to an account designated by Kappa within two (2) Business Days after such termination.
(d) In the event that this Agreement is terminated by Theta pursuant to Section 10.3, then, Kappa shall pay Theta a fee equal to $37,000,000, by wire transfer of same day funds to an account designated by Theta, within two (2) Business Days after such termination.
(e) In the event that this Agreement is terminated by Kappa pursuant to Section 10.4, then, Theta shall pay Kappa a fee equal to $37,000,000, by wire transfer of same day funds to an account designated by Kappa, within two (2) Business Days after such termination.
(f) Each of Theta and Parent agree Kappa acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 10.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, the other party would not have entered enter into this 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 Agreement; accordingly, if either party fails to promptly pay Parent or cause to be paid the amounts amount due under paragraph (b) above within the time periods specified thereinpursuant to this Section 10.5, and, in order to obtain such payment, the Company other party commences a suit that results in a judgment against such party for the payment set forth in this Section 10.5 or any portion of such payment, such party shall pay the other party its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the payment at the prime lending rate prevailing during of Citibank, N.A., in effect on the date such period as published in The Wall Street Journalpayment was required to be paid, calculated on a daily basis from the date on which such amounts were payment was required to be paid until through the date of actual payment.
(g) In the event that legal action is taken by any party (including any of the Parties) against Kappa, the Kappa Board, Theta or the Theta Board in relation to the legality of the decision by the Kappa Board or the Theta Board to enter into or perform the agreements between Kappa and Theta set forth in Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as the case may be, and, despite the party subject to the legal action having vigorously defended against such legal action, it is concluded by a final non-appealable judgment or decision of a court of competent jurisdiction that the decision by the Kappa Board or the Theta Board, as applicable, to enter into the agreements under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable, is unlawful or unenforceable, then the Party that would be entitled to the termination payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable (referred to as the "Recipient" for the purposes of this Section 10.5(g) and Section 10.5(h)), shall promptly remit to the Party that would be obligated to pay the termination payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable, the portion of such termination payment (to the extent already paid) that such court has determined to be unlawful or unenforceable, net of any reasonable costs and expenses of the Recipient.
(h) At the Recipient's option, the Recipient shall be entitled to assume and control the defense of any legal action referred to in Section 10.5(g) subject to the Recipient assuming all the costs relating to such defense. In the event that the Recipient assumes such defense, the other Party shall fully cooperate with the Recipient's defense of such legal action, including by providing to the Recipient all such information regarding the other Party and its Board of Directors, and making available to Recipient such employees, officers and directors of such other Party, as the Recipient shall reasonably request.
(i) Notwithstanding, anything to the contrary in this Agreement, any payments made pursuant to Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e) shall constitute liquidated damages, and from and after the termination giving rise to such payment, neither Party shall have any further liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 10.5. In no event shall any Party be entitled to payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e) on more than one occasion.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.02(b), 8.02(c), 8.02(c) and 8.02(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.01, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any Party (or of any of its Representatives or Affiliates); provided that (x) subject to Sections 8.02(c) and 8.02(e), no such termination shall relieve any Party of any liability or further obligation damages to the other Party resulting from any other party hereunder except fraud or Willful and Material Breach of its obligations set forth in this Agreement and (iy) as the provisions set forth in this Section 8.02 and the second and third sentences of Section 9.01 and (ii) that shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenantthis Agreement. In addition to the foregoing, agreement, representation or warranty no termination of this Agreement giving rise will affect the rights or obligations of any Party pursuant to such terminationthe Guarantee, which rights, obligations and agreements set forth in the Guarantee will survive the termination of this Agreement in accordance with their respective terms.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as followsterminated:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (gChange of Recommendation); or
then, within two (ii2) 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 Business Days after 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 or cause to be paid a termination fee of $24,000,000 (the “Company Termination Fee”) 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 immediately available funds to an account designated in writing by Parent.
(c) The Subject to Section 8.02(e), if this Agreement is terminated by the Company pursuant to Section 8.01(e) or Section 8.01(g), or by Parent pursuant to Section 8.01(b) if at such time the Company could have validly terminated this Agreement pursuant to Section 8.01(e) or Section 8.01(g), then within two (2) Business Days after termination of this Agreement, Parent shall pay or cause to be paid a termination fee of $50,000,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in writing by the Company. In the event this Agreement is terminated by the Company pursuant to Section 8.01(h), Parent shall pay to the Company, by wire transfer of immediately available funds, an amount equal to that required to reimburse the Company and Parent agree its Subsidiaries for all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby at or prior to the time of such termination, up to $10,000,000 in the aggregate.
(d) Each Party acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, no Party would not have entered into this 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 Agreement; accordingly, if the Company or Parent fails to timely pay Parent the amounts or Company any amount due under paragraph pursuant to Section 8.02(b) or Section 8.02(c), as applicable (b) above within the time periods specified thereinany such amount due, a “Termination Payment”), and, to obtain such payment, the Company Party owed a Termination Payment commences a suit that results in a judgment against the Party owing the applicable Termination Payment, the owing Party shall pay to the owed Party its reasonable, documented and out-of-pocket costs and expenses (including reasonable legal attorneys’ fees and expensesof outside counsel) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts thereon at the prime lending rate prevailing during such period as published in The Wall Street JournalJournal (or if not reported therein, calculated as reported in another authoritative source reasonably selected by the owed Party) in effect on a daily basis from the date such amounts were Termination Payment was required to be paid until from such date through the date of actual paymentfull payment thereof (any such amounts of costs, expenses and interest, the “Enforcement Costs”); provided, that in no event shall any Party be required to pay Enforcement Costs in an aggregate amount exceeding $2,000,000.
Appears in 1 contract
Sources: Merger Agreement (Convey Health Solutions Holdings, Inc.)
Effect of Termination and Abandonment. (a) Any termination by the Company under this Article VIII shall not require any approval of the Stockholders, regardless of whether before or after the Requisite Stockholder Approval shall have been executed by the Stockholders. This Agreement may only be terminated pursuant to this Article VIII.
(b) In the event of the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability on the part of any liability party hereto (or further obligation to of any of its directors, officers, employees, consultants, contractors, agents, attorneys or other party hereunder except Representatives); provided, however, notwithstanding the foregoing, (i) as set forth in the liabilities and obligations under (A) this Section 8.02 8.5, Section 5.2, Section 6.2, Section 6.7(e), and Section 9.01 Article IX and (B) the Confidentiality Agreement shall continue in full force and effect and (ii) that no such termination will not shall relieve a breaching any party from liability for any willful breach hereto of any covenant, agreement, representation liability or warranty damages resulting from any Willful Breach of this Agreement giving rise by such party (including the failure of such party to consummate the Contemplated Transactions following the satisfaction of all the conditions to the obligations of such termination.
(b) The Company shall pay Parent party set forth in Article VII other than those conditions that by their terms are to be satisfied at the sum of $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) Closing and in the case of any termination pursuant to clause (A) or (B) an Acquisition Proposal shall could have been publicly announced satisfied or otherwise communicated or made known to the Company Board (or any Person shall would 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 (Bbeen waived assuming a Closing would have occurred), 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 immediately available funds to an account designated by Parent.
(c) The Company Parent and Parent Mergers Subs acknowledge and agree that that, without in any way limiting the agreement contained in paragraph (b) of this Company’s rights under Section 8.02 is an integral part 9.8, recoverable damages of the transactions contemplated Company under this Agreement shall not be limited to reimbursement of expenses or out-of-pocket costs but shall also include the benefit of the bargain lost by this Agreementthe Stockholders (including “lost premium”), that without such agreement Parent would not have entered taking into consideration relevant matters, including the total amount payable to the Stockholders under this Agreement and that the time value of money, which, in each case, shall be deemed in such amounts do not constitute a penalty or liquidated event to be damages in of the event of a breach of this Agreement Company and shall be recoverable by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevails, including the filing on behalf of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentits stockholders.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than this Section 8.5, Sections 5.2(c) and 6.13, and Article IX) shall have 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 further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) a bona fide Acquisition Proposal shall have been made or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Acquisition Proposal in respect of the Company shall pay Parent the sum or any of $7.5 million (the "Termination Fee") if its subsidiaries and thereafter this Agreement is terminated as follows:
by either Parent or the Company pursuant to Section 8.2(b) (iprovided that within 9 months of the termination of this Agreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company) if or (ii) this Agreement is terminated by the Company pursuant to Section 8.3(a), or (iii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (g); or
(iiSection 8.4(b) if this Agreement is terminated as a result of a material breach 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 of the covenants set forth in Section 6.5 hereof, then the Company Board (or any Person shall have publicly announcedpay Parent a termination fee of $41,700,000 in same-day funds, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after on 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 such termination, in the case of clause (Aii) or (iii), then (x) the Company shall pay to Parent an amount equal to $1.0 million or on the second Business Day following such termination, and (y) if within 18 months after such termination the Company or a Subsidiary earlier of the Company enters into date an agreement with is entered into in respect to, or consummates, of an Acquisition ProposalProposal or an Acquisition Proposal is consummated in the case of clause (i), then provided, however, that notwithstanding the Company shall pay foregoing, Parent will not be entitled to Parent the Termination Fee (net of any payment made a termination fee pursuant to clause (xi) aboveabove in the event the Acquisition Proposal entered into, agreed to or consummated after such termination is an Acquisition Proposal whereby (A) on the date Company or any of execution its subsidiaries acquires a third party (the "EXEMPT ACQUIRED PERSON") pursuant to a merger, consolidation, recapitalization, share exchange or similar transaction in which the Company survives and the shareholders of the Exempt Acquired Person receive shares of Company Common Stock which, immediately following consummation of such agreement merger, consolidation, recapitalization, share exchange or consummation similar transaction, will represent no more than 45% of the issued and outstanding shares of Company Common Stock (or securities convertible or exchangeable into, or exercisable for Company Common Stock, whether upon the passage of time or otherwise) and (B) such Exempt Acquired Person, or any affiliate or affiliates thereof, was or were not the subject of an Acquisition Proposal. Any amount that becomes payable pursuant Proposal at any time after the date hereof prior to the termination of this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by ParentAgreement.
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (bSection 8.5(b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered into this 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 Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinfee set forth in this Section 8.5, the Company shall pay the to Parent its costs and expenses (including reasonable legal fees and expensesincluding, attorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing of Bank of America, N.A., in effect from time to time during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentperiod.
Appears in 1 contract
Sources: Merger Agreement (Unitrode Corp)
Effect of Termination and Abandonment. (a) If this Agreement is terminated by the Company or Parent pursuant to Section 7.2(b), 7.3(a) or 7.4(a), and (x) prior to such termination, a proposal with respect to a Transaction shall have been made, and (y) within six (6) months after such termination, either the Company enters into any agreement with respect to a Transaction, or any third party shall acquire beneficial ownership of 50.1% or more of the Company's outstanding shares of voting stock, then the Company shall pay Parent, by wire transfer of immediately available funds, a fee (the "Termination Fee") of Two Million Dollars ($2,000,000) within two (2) business days after the execution of such agreement or the consummation of such acquisition (whichever shall first occur).
(b) The Company acknowledges that the agreements contained in this Section 7.5 are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Termination Fee when due and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company, the Company shall reimburse Parent for its costs and expenses (including reasonable attorneys' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee at the prime rate, as then quoted in The Wall Street Journal, from the date the Termination Fee was required to be paid.
(c) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, no party to this Agreement all obligations of the parties hereto shall have any liability or further obligation to any other party hereunder terminate, except (i) as the obligations of the parties set forth in this Section 8.02 7.5 and Section 9.01 and 5.12, (ii) that the provisions of Sections 8.3, 8.6, 8.9 and 8.13, and (iii) the Confidentiality Agreement previously executed between the Company and Parent (the "Confidentiality Agreement"). Moreover, in the event of termination will not relieve a breaching of this Agreement pursuant to Section 7.3 or 7.4, nothing herein shall prejudice the ability of the nonbreaching party from liability seeking damages, after taking into account payment of the Termination Fee, if such fee has been paid, from any other party for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The Company shall pay Parent the sum of $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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that including without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified thereinlimitation, the Company shall pay the costs and expenses (including reasonable legal attorneys' fees and expenses) incurred by Parent the right to pursue any remedy at law or in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentequity.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the parties hereto agree that the Company shall pay to Parent the sum a termination fee of $7.5 28.0 million (the "Termination Fee") if this Agreement is terminated as followsin the manner set forth below if:
(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(c), or (C) by either Parent or the Company pursuant to Section 8.01(e) (other than by reason of any breach by Parent or the Company, respectively), and in the case of any termination pursuant to clause (A), (B) or (BC) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of the Company or 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 (BC), or the date of terminationtermination of this Agreement, in the case of clause (A) or (B); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.01(h). In the event the Termination Fee shall become payable pursuant to Section 8.02(b)(i) or (ii), then (x) the Company shall pay to Parent an amount equal to $1.0 5.0 million on the second first Business Day following such terminationtermination of this Agreement, and (y) if within 18 months after such termination the Company or a Subsidiary of the Company enters into an any agreement with respect to, or consummates, an any Acquisition ProposalTransaction, 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 the Acquisition ProposalTransaction. In the event the Termination Fee shall become payable pursuant to Section 8.02(b)(iii), the Company shall pay to Parent the entire Termination Fee within two Business Days following the date of termination of this Agreement. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (other than this Section 8.5, Sections 5.2(c) and 6.13, and Article IX) shall have 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 further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The In the event that (i) a bona fide Acquisition Proposal shall have been made or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Acquisition Proposal in respect of the Company shall pay Parent the sum or any of $7.5 million (the "Termination Fee") if its subsidiaries and thereafter this Agreement is terminated as follows:
by either Parent or the Company pursuant to Section 8.2(b) (iprovided that within 9 months of the termination of this Agreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company) if or (ii) this Agreement is terminated by the Company pursuant to Section 8.3(a), or (iii) this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a) or (g); or
(iiSection 8.4(b) if this Agreement is terminated as a result of a material breach 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 of the covenants set forth in Section 6.5 hereof, then the Company Board (or any Person shall have publicly announcedpay Parent a termination fee of $41,700,000 in same-day funds, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after on 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 such termination, in the case of clause (Aii) or (iii), then (x) the Company shall pay to Parent an amount equal to $1.0 million or on the second Business Day following such termination, and (y) if within 18 months after such termination the Company or a Subsidiary earlier of the Company enters into date an agreement with is entered into in respect to, or consummates, of an Acquisition ProposalProposal or an Acquisition Proposal is consummated in the case of clause (i), then provided, however, that notwithstanding the Company shall pay foregoing, Parent will not be entitled to Parent the Termination Fee (net of any payment made a termination fee pursuant to clause (xi) aboveabove in the event the Acquisition Proposal entered into, agreed to or consummated after such termination is an Acquisition Proposal whereby (A) on the date Company or any of execution its subsidiaries acquires a third party (the "EXEMPT ACQUIRED PERSON") pursuant to a merger, consolidation, recapitalization, share exchange or similar transaction in which the Company survives and the shareholders of the Exempt Acquired Person receive shares of Company Common Stock which, immediately following consummation of such agreement merger, consolidation, recapitalization, share exchange or consummation similar transaction, will represent no more than 45% of the issued and outstanding shares of Company Common Stock (or securities convertible or exchangeable into, or exercisable for Company Common Stock, whether upon the passage of time or otherwise) and (B) such Exempt Acquired Person, or any affiliate or affiliates thereof, was or were not the subject of an Acquisition Proposal. Any amount that becomes payable pursuant Proposal at any time after the date hereof prior to the termination of this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by ParentAgreement.
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (bSection 8.5(b) of this Section 8.02 is are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement these agreements, Parent and Merger Sub would not have entered into this 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 Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinfee set forth in this Section 8.5, the Company shall pay the to Parent its costs and expenses (including reasonable legal fees and expensesincluding, attorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of 50 59 termination of this Agreement on the amount of any such unpaid amounts owed at the prime lending rate prevailing of Bank of America, N.A., in effect from time to time during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentperiod.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Amalgamation pursuant to this Article VIII, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and (ii) that financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful or intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Without limiting Parent’s rights under Section 8.5(c) or 8.5(d), the Company shall pay Parent the sum a termination fee of $7.5 million 6,940,764 (the "“Termination Fee"”), plus up to an aggregate amount of $1,500,000 of all out-of-pocket expenses of Parent and its Affiliates, including fees and expenses of financial advisors, outside legal counsel, accountants, experts and consultants incurred by Parent and its Affiliates or on their respective behalf in connection with or related to this Agreement and the transactions contemplated hereby (the “Parent Expenses”) if in the event that this Agreement is terminated as follows:
(i) if by the Company pursuant to Section 8.3(a), or (ii) by Parent pursuant to Section 8.4(b), if, solely with respect to the foregoing clause (ii), (A) an Acquisition Proposal shall have been made to the Company or its shareholders or any Person shall have publicly announced an intention to make an Acquisition Proposal with respect to the Company prior to such termination and (B) within 12 months of such termination, the Company consummates a definitive agreement with respect to an Acquisition Proposal (with all percentages in the definition of Acquisition Proposal increased to fifty percent (50%)). In the event of a Termination Fee and Parent Expenses payable pursuant to Section 8.5(b)(i), such fee and expenses shall be paid to Parent upon termination of this Agreement, and in the event of a Termination Fee and Parent Expenses payable pursuant to Section 8.5(b)(ii), such fee and expenses shall be paid to Parent upon the consummation of the definitive agreement in connection with the applicable Acquisition Proposal.
(c) If this Agreement is terminated by Parent pursuant to Section 8.01(f8.4(a), then, without limiting Parent’s rights under Section 8.5(b) or (g8.5(d); 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 , upon 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 MeetingAgreement, 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 Parent Expenses; provided, however, that if within 12 months of such termination, and (y) if within 18 months after such termination the Company or a Subsidiary of the Company enters into an or consummates a definitive agreement with respect to, or consummates, to an Acquisition ProposalProposal (with all percentages in the definition of Acquisition Proposal increased to fifty percent (50%)), then the Company shall also pay to Parent an amount equal to the Termination Fee upon consummation of such definitive agreement (even if such consummation occurs following such 12 month period).
(d) If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(b), then, without limiting Parent’s rights under Section 8.5(b) or 8.5(c), upon termination of this Agreement, the Company shall pay to Parent an amount equal to the Parent Expenses; provided, however, that if (A) an Acquisition Proposal shall have been made to the Company or its shareholders or any Person shall have publicly announced an intention to make an Acquisition Proposal with respect to the Company prior to such termination and (B) within 12 months of such termination, the Company enters into or consummates a definitive agreement with respect to an Acquisition Proposal (with all percentages in the definition of Acquisition Proposal increased to fifty percent (50%)), then upon the earlier of the execution or consummation of such definitive agreement, the Company shall also pay to Parent an amount equal to the Termination Fee.
(e) The Company’s payment of the Termination Fee (net and Parent Expenses, as applicable, shall be the sole and exclusive remedy of Parent and Amalgamation Sub against the Company and its Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives with respect to the breach of any payment made pursuant covenant or agreement giving rise to clause (x) above) on such payment. Parent and the date of execution of such agreement or consummation of an Acquisition Proposal. Any amount Company acknowledge that becomes payable pursuant to the agreements contained in this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is 8.5 are an integral part of the transactions contemplated by this AgreementAgreement and that, that without such agreement these agreements, Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If Accordingly, if the Company fails to pay promptly any amount due pursuant to this Section 8.5 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinamount set forth in this Section 8.5, the Company non-prevailing party shall pay the prevailing party’s costs and expenses (including reasonable legal attorneys’ 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentsuit.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger is abandoned pursuant to this Article VIIIVII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other party hereunder except Person on the part of any Party (or of any member of the Parent Group or the Company Group); provided, that (i) except as set forth in otherwise provided herein, no such termination shall relieve any Party of any liability to pay the Company Termination Fee or the Parent Termination Fee, as applicable, pursuant to this Section 8.02 and 7.5 or, subject to Section 9.01 7.5(e), relieve the Company or Parent or Merger Sub of any liability for any Willful Breach of this Agreement prior to such termination, and (ii) that the provisions listed in the second sentence of Section 8.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement. The Party desiring to terminate this Agreement giving rise pursuant to Section 7.2, 7.3 or 7.4 shall give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other Parties in accordance with Section 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (A) this Agreement is terminated pursuant to Section 7.2(a), Section 7.2(b), Section 7.4(b) or Section 7.4(c); (B) any Person shall have proposed, announced or made a bona fide Acquisition Proposal after the date of this Agreement (which announcement must have been publicly made in the case of Section 7.2(b)) and prior to the Stockholders Meeting (in the case of Section 7.2(b)), prior to the breach giving rise to the right of termination (in the case of Section 7.4(b) and Section 7.4(c)) and prior to such termination (in the case of Section 7.2(a)) (and in the case of Section 7.2(b) such Acquisition Proposal shall not have been withdrawn at least five (5) Business Days prior to the Stockholders Meeting); and (C) within twelve (12) months of such termination the Company shall have consummated an Acquisition Proposal or entered into a definitive agreement for, and thereafter consummated (whether or not such consummation occurs within such twelve (12) month period), an Acquisition Proposal (whether or not involving the same Acquisition Proposal as that referred to in clause (B) above), then the Company shall, on the date on which such Acquisition Proposal is consummated, pay the Company Termination Fee to Parent (or its designees) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clause (C) above the references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) this Agreement is terminated by the Company pursuant to Section 7.3(a), the Company shall, prior to or substantially concurrently with such termination, pay the Company Termination Fee to Parent (or its designees) by wire transfer of same day funds to one or more accounts designated by Parent; or
(iii) this Agreement is terminated by Parent pursuant to Section 8.01(f7.4(a), the Company shall, no later than three (3) Business Days after the date of such termination, pay the Company Termination Fee to Parent (or (g)its designees) by wire transfer of same day funds to one or more accounts designated by Parent; or
(iiiv) 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 7.2 at a time when Parent was permitted to terminate this Agreement pursuant to clause (A) or (B) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to Section 7.4(a), the Company Board shall, prior to or substantially concurrently with such termination, pay the Company Termination Fee to Parent (or any Person its designees) by wire transfer of same day funds to one or more accounts designated by Parent. For the avoidance of doubt, in no event shall have publicly announcedthe Company be required to pay the Company Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 7.3(c), communicated or made known an intentionthen Parent shall, whether or not conditional, to make an Acquisition Proposalno later than three (3) at any time Business Days after the date of such termination, pay or cause to be paid the Parent Termination Fee to the Company or its designees by wire transfer of same day funds to one or more accounts designated by the Company (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion).
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, in either case as required pursuant to this Section 7.5 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. The Company and Parent each acknowledge that the fees and the other provisions of this Section 7.5 are an integral part of this Agreement and are not a penalty, but rather liquidated damages in a reasonable amount that will compensate the other Party in the circumstances in which such fee is payable, and that, without these provisions, the other Party would not enter into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that Parent and Merger Sub fail to effect the Closing or otherwise breach this Agreement or fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the taking termination of this Agreement as permitted by Section 8.7, (i) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) Parent, Merger Sub and the Equity Investors, (B) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, financing sources (including the Financing Parties), Affiliates, members, managers, general or limited partners, stockholders or assignees of Parent, Merger Sub or any Equity Investor or (C) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, financing sources (including the Financing Parties), Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the vote foregoing (collectively, the “Parent Group”) in respect of this Agreement, any agreement executed in connection herewith, including the shareholders of Commitment Letters and the Company Limited Guarantee, and the transactions 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 hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company shall pay Parent Termination Fee pursuant to Section 7.5(c) (including any interest payable pursuant to Section 7.5(d)) from Parent an amount equal or pursuant to $1.0 million on the second Business Day following such terminationLimited Guarantee and, as applicable, the reimbursements contemplated by Sections 5.9 and 5.13, and (y) if within 18 months after such following the 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of Agreement by either Party, the transactions contemplated by this Agreement, that without such agreement Company’s right to seek monetary damages from Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach Parent’s or Merger Sub’s Willful Breach of this Agreement by prior to the Company. If termination of this Agreement (provided that in no event shall Parent be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of an amount equal to the Company fails to pay Parent Termination Fee (the amounts due under paragraph “Damage Cap”)) and (bii) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 upon payment of such amounts, together with interest on no member of the Parent Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith, the Commitment Letters or the Limited Guarantee, or the transactions contemplated hereby or thereby; provided that in no event will the Company be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts in excess of the amount of the Damage Cap, (2) payment of both monetary damages and the Parent Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any such unpaid amounts at monetary damages and/or the prime lending rate prevailing during such period as published Parent Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against Parent or Merger Sub that results in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentClosing.
Appears in 1 contract
Sources: Merger Agreement (ORBCOMM Inc.)
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 8.5 and in Section 9.01 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its respective Related Parties); provided that no such termination shall relieve any party hereto from any liability (i) for damages resulting from the Willful Breach prior to such termination by any party hereto or (ii) that termination will not relieve a breaching party as provided in this Section 8.5 (including, from liability for any willful breach of any covenantobligation to pay, agreementif applicable, representation the Company Termination Fee pursuant to Section 8.5(b) or warranty of this Agreement giving rise to such terminationSection 8.5(d)).
(b) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if If this Agreement is terminated as follows:
(i) if by Parent pursuant to Section 8.4(b) (Change in Recommendation) or (ii) by the Company pursuant to Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two (2) Business Days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii), pay to Parent, by wire transfer of immediately available funds, a fee equal to $8,803,499 (the “Company Termination Fee”).
(c) If this Agreement is terminated by Parent the Company pursuant to Section 8.01(f) 8.3(c), Parent shall pay to the Company, by wire transfer of immediately available funds, an amount equal to that required to reimburse the Company and its Subsidiaries for all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby at or (g); orprior to the time of such termination, up to $2,000,000 in the aggregate.
(iid) if If (i) 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(e8.2(a) and in (Termination Date) prior to the case receipt of any termination pursuant to clause the Company Requisite Approval or Section 8.2(a) (ACompany Requisite Approval) or (B) an by Parent pursuant to Section 8.4(a) (Company Breach) as a result of a material breach of Section 6.2 (Acquisition Proposals), (ii) prior to such termination referred to in clause (i) of this sentence, a bona fide Acquisition Proposal shall have been publicly made or publicly announced or otherwise communicated or made known to the Company Board or its board of directors (or any Person committee thereof, including the Special Committee), publicly announced or shall have publicly announcedbeen made directly to the Company’s stockholders generally and, communicated or made known an intentionin each case, whether or not conditional, to make an withdrawn (a “Company Acquisition Proposal”) at any time and (iii) within twelve (12) months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this Agreement and Section 8.5(d), the Company consummates a transaction the proposal of which would have constituted an Acquisition Proposal if made prior to the taking termination 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 a definitive agreement with respect to, or consummates, for any transaction the proposal of which would have constituted an Acquisition ProposalProposal if made prior to the termination of this Agreement (which transaction is subsequently consummated), then the Company shall pay the Company Termination Fee to Parent concurrently upon the Termination Fee (net of any payment made pursuant to clause (x) above) on the date of execution consummation of such agreement transaction; provided that solely for purposes of this Section 8.5(d), references to “fifteen percent (15%) or consummation more” in the definition of an Acquisition Proposal. Any amount Proposal shall be deemed to be references to “fifty percent (50%) or more”.
(e) The parties acknowledge and hereby agree that becomes payable the Company Termination Fee, if, as and when required pursuant to this Section 8.02(b) 8.5, shall not constitute a penalty but will be paid by wire transfer liquidated damages, in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it 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 immediately available funds the consummation of the Merger, which amount would otherwise be impossible to an account designated by Parentcalculate with precision. The parties acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(cf) The Company and Parent agree Each party acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.5 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, no party would not have entered into this Agreement 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 accordingly, if the Company or Parent fails to pay promptly any amount that may become due pursuant to Section 8.5(a), Section 8.5(b), or Section 8.5(d) (any such amount due, a “Payment”), and, in order to obtain such Payment, Parent or the amounts due under paragraph (b) above within Company commences a suit which results in a judgment against the time periods specified thereinCompany or Parent, respectively, for the applicable Payment, or any portion thereof, the Company party with such judgment against them shall pay to the other party its costs and expenses (including reasonable legal fees and expensesattorneys’ fees) actually incurred by Parent in connection with such suit and any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountsappeal relating thereto, together with interest on the amount of any such unpaid amounts the Payment, which shall accrue at the prime lending rate prevailing during such period as published in The the Wall Street Journal, calculated Eastern Edition, in effect on a daily basis from the date such amounts were Payment was first required to be paid until from such date through the date of actual paymentfull payment thereof.
(g) Notwithstanding anything to the contrary in this Agreement, but subject to the proviso in Section 8.5(a) and Section 9.13, in any circumstance in which this Agreement is terminated and Parent has the right to receive payment of the Company Termination Fee in accordance herewith, the payment of the Company Termination Fee and, if applicable, the costs and expenses of Parent pursuant to Section 8.5(f) shall be the sole and exclusive remedy of Parent, its Subsidiaries and Affiliates and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives, agents or any of their respective assignees or successors or 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 (the “Parent Related Parties”) against the Company, its Subsidiaries and Affiliates and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives, agents or any of their respective assignees or successors or 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”) for any loss or damage suffered as a result of the failure of the Merger and the other transactions contemplated by this Agreement to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any representation made or alleged to have been made in connection herewith or therewith, and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (except that the Company shall remain obligated to pay to Parent any amount due and payable pursuant to Section 8.5(f)), whether in equity or at Law, in contract, in tort or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Agiliti, Inc. \De)
Effect of Termination and Abandonment. (a) In the event of 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 (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The Company shall pay Parent the sum of $7.5 million 1,500,000 (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 (gby the Company pursuant to Section 8.01(g), in either of which case payment shall be made to Parent concurrently with the termination of this Agreement; or
or (ii) if (x) 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) as a result of the failure to obtain the required vote at the Company Meeting contemplated by Section 7.01(a) this Agreement 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, to an Acquisition Proposal or consummates, consummates a transaction which is the subject of 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 a transaction which is the subject of an Acquisition Proposal, provided that if the date of execution of such agreement is after 12 months but within 18 months after such termination of this Agreement, the Termination Fee shall be payable by the Company to Parent only upon consummation of a transaction which is the subject of an Acquisition Proposal, regardless whether such consummation occurs within 18 months after termination of this Agreement. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.Page 45 ARTICLE IX
Appears in 1 contract
Sources: Merger Agreement (First National Lincoln Corp /Me/)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Transaction pursuant to this Article VIII8, no party to this Agreement (other than Sections 6.07 (Fees and Expenses), 8.05 (Effect of Termination and Abandonment) and Article 9 (Miscellaneous)) shall have become void and of no effect with no liability on the part of any Party (or of any of its Representatives); provided that no such termination shall relieve any Party of any liability or further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party for damages resulting from liability for any willful and material breach of any covenantrepresentations, agreementwarranties, representation covenants or warranty of agreements contained in this Agreement.
(b) Notwithstanding Section 6.07, if this Agreement giving rise is terminated by the Company pursuant to Section 8.03 or by Parent pursuant to Section 8.04(b)(i) or (b)(ii), the Company shall pay to Parent the 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.
(bc) The Company shall pay Parent the sum of $7.5 million (the "Termination Fee") if If this Agreement is terminated as follows:
(i) by the Company or Parent pursuant to Section 8.02(b), or (ii) by Parent pursuant to Section 8.04(b)(iii), then (A) the Company shall reimburse Parent and its Affiliates for all Expenses incurred in connection with the execution of this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $350,000 and (B) if within twelve (12) months after such termination, the Company enters into or consummates a definitive agreement with respect to any Acquisition Proposal (with all percentages in the definition of Acquisition Proposal increased to fifty percent (50%)), then upon the earlier of the execution or consummation of such definitive agreement, the Company shall also make a payment to Parent of an amount that, when added to the amount paid by the Company pursuant to Section 8.05(c)(A), equals the Company Termination Fee.
(d) If this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g8.02(c); 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) shall reimburse Parent and its Affiliates for all Expenses incurred in connection with 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 execution 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this AgreementAgreement up to a maximum amount of $350,000.
(e) Except as contemplated by Section 6.07, that without such agreement Parent would not have entered into agrees that, to the fullest extent permitted by Law, Parent’s right to payment of the amounts provided in Section 8.05(b), (c) or (d), as the case may be, 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 Section 8.05(b), (c) or (d), respectively, and that such amounts shall constitute liquidated damages for such Losses. The Parties agree that the liquidated damages provided for in this Section 8.05 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 and 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentpenalty.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) as set forth in this Section 8.02 and Section 9.01 subsections (b), (c) and (iid) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationbelow and in Section 9.01.
(b) The Nortel and the Company agree that the Company shall pay Parent to Nortel the sum of $7.5 million sums described below (the "Termination Fee") if this Agreement is terminated solely as follows:
(i) the sum of $15,000,000 either if (x) the Company shall terminate this Agreement is terminated by Parent pursuant to Section 8.01(f8.01(c) (unless the failure to consummate the Merger by the relevant date results primarily from the action or inaction of Nortel or from Nortel's or Sub's inability to obtain consent or approval of, or make any filing or registration with, any Governmental Authority), (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 Proposaly) at any time after the date of this Agreement and prior at or before the time of the event giving rise to such termination there shall exist 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 with respect to an Acquisition Proposal or an Acquisition Proposal is consummated, or if (A) the Company or Nortel shall terminate this Agreement pursuant to Section 8.01(d)(iv) due to the taking failure of the vote of the shareholders of the Company contemplated by Company's stockholders to approve and adopt this Agreement at the Company MeetingAgreement, in the case of clause (B), or ) at any time after the date of terminationthis Agreement and at or before the time of the event giving rise to such termination there shall exist an Acquisition Proposal which has been publicly announced or the existence of which is a matter of public knowledge and (C) within 12 months of the termination of this Agreement, in the case Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated;
(ii) the sum of clause (A)$4,000,000 if Nortel shall terminate this Agreement pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii) following a willful breach of any of the representations, then covenants or agreements contained herein, and an additional sum of $11,000,000 if (x) at any time after the Company date of this Agreement and at or before the time of the event giving rise to such termination there shall pay to Parent exist an amount equal to $1.0 million on the second Business Day following such termination, Acquisition Proposal and (y) if within 18 12 months after such of the termination the Company or a Subsidiary of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated;
(iii) the sum of $15,000,000 if Nortel shall terminate this Agreement pursuant to Section 8.01(e)(i); or
(iv) the sum of $15,000,000 if the Company shall terminate this Agreement pursuant to Section 8.01(e)(ii).
(c) Any Termination Fee required to be paid pursuant to subsection (b)(i) above shall be payable by the Company to Nortel not later than two Business Days after the date the Company enters into a definitive agreement with respect to, or consummatesthe date of consummation of, an Acquisition Proposal, then whichever is earlier. The sum of $4,000,000 required to be paid upon termination pursuant to subsection (b)(ii) above shall be payable by the Company to Nortel not later than two Business Days after the termination referred to therein, and any additional sum of $11,000,000 required to be paid thereafter pursuant to subsection (b)(ii) above shall pay be payable by the Company to Parent Nortel not later than two Business Days after the date the Company enters into a definitive agreement with respect to, or the date of consummation of, an Acquisition Proposal, whichever is earlier. Any Termination Fee required to be paid pursuant to subsection (b)(iii) above shall be payable by the Company to Nortel not later than two Business Days after the termination referred to therein. Any Termination Fee required to be paid pursuant to subsection (b)(iv) shall be payable as set forth in clause (z) of Section 8.01(e)(ii). In no event shall more than $15,000,000 be payable in respect of the Termination Fee. Notwithstanding the foregoing, (i) Nortel may elect, by notice to the Company, to defer the payment of the Termination Fee from time to time for a period or periods of up to an aggregate of twelve months after the date such fee would otherwise be payable and (ii) the Termination Fee (net of including any payment made portion thereof pursuant to clause (xSection 8.02(b)(ii)) above) on shall cease to be payable immediately following any exercise by Nortel of the date of execution of such agreement or consummation of an Acquisition ProposalOption under the Option Agreement. Any amount that becomes payable pursuant to All payments under this Section 8.02(b) 8.02 shall be paid made by wire transfer of immediately available funds to an account designated by Parentthe party entitled to receive payment.
(cd) If the Company shall terminate this Agreement pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii) following a willful breach of any of the representations, covenants or agreements contained herein, Nortel shall pay to the Company the sum of $4,000,000 (the "Company Termination Fee"). The Company and Parent agree Termination Fee shall be payable by Nortel to the Company not later than two Business Days after the termination by the Company pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii); provided that the agreement contained in paragraph (b) of no event shall more than one Company Termination Fee be payable. All payments under this Section 8.02 is 8.02(d) shall be made by wire transfer of immediately available funds to an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement account designated by the Company. If the Company fails to pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (Periphonics Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to of any kind on the part of any Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other party hereunder representatives), except (i) as set forth provided in this Section 8.02 and Section 9.01 7.02(b) and (ii) that no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful and intentional breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(bi) The Company shall pay Parent the sum a termination fee of $7.5 million 8,500,000 (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 immediately available funds to an account designated specified by ParentParent in the event of any of the following: (A) in the event that (1) a bona fide Acquisition Proposal shall have been made to the Company or its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company; (2) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 7.01(b) for failure of the Merger to be consummated by the End Date or (y) Section 7.01(c)(ii), and, in either case, the Company Shareholder Approval has not been obtained; and (3) within twelve (12) months of the termination of this Agreement, the Company enters into a definitive agreement with respect to or consummates an Acquisition Proposal; provided, that for purposes of this Section 7.02(b)(i)(A), the references to “15%” in the definition of “Acquisition Proposal” shall instead refer to “50%”; or (B) this Agreement is terminated by Parent pursuant to Section 7.01(f).
(ii) Any Termination Fee required by this Section 7.02 shall be paid promptly, but in no event later than two (2) Business Days after the date of termination; provided that with respect to clause (A) above, the Termination Fee shall be paid immediately prior to the Company’s entering into a definitive agreement with respect to, or consummation of, an Acquisition Proposal.
(c) The Company and Parent agree acknowledges that the agreement agreements contained in paragraph (b) of this Section 8.02 is above are an integral part of the transactions contemplated by this Agreement, and that without such agreement agreements Parent would not have entered into this Agreement Agreement, and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Companypenalty. If the Company fails to promptly pay Parent the any amounts due under paragraph (b) above within the time periods period specified therein, the Company shall pay the all costs and expenses (including reasonable legal fees and expensesattorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action in which Parent prevailsaction, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending rate prevailing during such period as published of interest printed in The Wall Street Journal, calculated Journal on a daily basis from the date such amounts were payment was required to be paid until the date of actual payment.made. ARTICLE 8 MISCELLANEOUS 8.01
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Offer and the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from any willful and material breach of this Section 8.02 and Section 9.01 Agreement and (ii) that the provisions set forth in Section 6.10 (Expenses), this Section 8.5, Article IX and the Confidentiality Agreement shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as follows:
terminated: (i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g); or
(ii) if this Agreement is terminated by (Ax) Parent pursuant to Section 8.01(b) or (B) by either Parent or the Company pursuant to Section 8.01(e8.2(a) or (y) Parent pursuant to Section 8.4(d) and in the case of any termination pursuant to connection with either clause (Ax) or (By):
(A) 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 disclosed after the date of this Agreement hereof and not clearly withdrawn in good faith prior to the taking Termination Date; and
(B) within 12 months after termination of the vote of the shareholders of this Agreement, the Company or any of its Subsidiaries enters into a definitive agreement with respect to any Acquisition Proposal or consummates a transaction contemplated by any Acquisition Proposal (provided that for purposes of this Agreement at the Company Meeting, in the case of clause (B), the references to “10%” and “15%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”) (any such agreement or the date of terminationconsummation, an “Acquisition Event”), in each case whether or not such Acquisition Proposal is the case of same as the original Acquisition Proposal referred to in 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 Proposalabove, then the Company shall pay to Parent the Termination Fee (net within two business days of any payment made pursuant to clause (x) above) on the date of execution consummation 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.Event;
Appears in 1 contract
Sources: Merger Agreement (Einstein Noah Restaurant Group Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement by either Buyer or the Company as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of Buyer, the abandonment Company, any of their respective Subsidiaries or any of the Merger pursuant to this Article VIII, no party to this Agreement officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or further obligation to any other party hereunder in connection with the transactions contemplated hereby, except that Section 6.3 (iPress Releases), 6.13 (Confidentiality Agreement) as set forth in and 9.5 (Expenses) and this Section 8.02 8.2 and Section 9.01 all other 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, notwithstanding anything to the contrary herein, neither Buyer nor the Company shall be relieved or released from any liabilities or damages arising out of its willful and (ii) that termination will not relieve a breaching party from liability for any willful material breach of any covenant, agreement, representation or warranty provision of this Agreement giving rise to such terminationor fraud.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event this Agreement is terminated by Parent Buyer pursuant to Section 8.01(f) or 8.1(f), the Company shall pay to Buyer an amount equal to $12,000,000 (gthe “Termination Fee”); or.
(iic) if In the event that this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent Buyer or the Company pursuant to Section 8.01(e) and in the case of any termination pursuant to clause (A8.1(e) or Section 8.1(b) due to the failure to obtain the approval of the Company’s stockholders required for the consummation of the Merger, and (Bi) an Acquisition Proposal with respect to the Company shall have been publicly announced announced, disclosed 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 senior management of the date of this Agreement and Company prior to the taking Company Meeting (including any adjournment or postponement thereof) or prior to the date specified in Section 8.1(b), as applicable, and (ii) within 12 months of the vote of the shareholders of such termination, 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 shall have (x) the Company shall pay to Parent consummated a transaction qualifying as an amount equal to $1.0 million on the second Business Day following such termination, and Acquisition Transaction or (y) if within 18 months after such termination the Company or entered into a Subsidiary of the Company enters into an definitive agreement with respect to, or consummates, to an Acquisition ProposalTransaction, then the Company shall pay to Parent Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%.”
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(c) as a result of an intentional breach by the Company 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 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 8.2(c) and (ii) within 12 months of such termination, the Company shall have (x) 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 pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%.”
(e) Any payment of the Termination Fee (net of any payment required to be 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) 8.2 shall be paid made not more than two Business Days after the date of the event giving rise to the obligation to make such payment. Any payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account designated by ParentBuyer. Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall constitute liquidated damages and not a penalty and shall be the sole remedy of Buyer in the event of a termination of this Agreement pursuant to this Section 8.2; provided, however, that, notwithstanding anything to the contrary herein, the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of any provision of this Agreement or fraud.
(cf) The Buyer and the Company and Parent agree acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.2 are an integral part of the transactions contemplated by this AgreementAgreement and that, that without such agreement Parent these agreements, Buyer would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If Accordingly, if the Company fails promptly to pay Parent any amount due pursuant to this Section 8.2 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinamount set forth in this Section 8.2, the Company shall pay the Buyer its costs and expenses (including reasonable legal attorneys’ 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 amountssuit, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period (as published reported in The Wall Street JournalJournal or, calculated if not reported therein, in another authoritative source) on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement by either Buyer or the Company as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of Buyer, the abandonment Company, any of their respective Subsidiaries or any of the Merger pursuant to this Article VIII, no party to this Agreement officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or further obligation to any other party hereunder in connection with the transactions contemplated hereby, except (i) as set forth in that Sections 6.11 and 9.4 and this Section 8.02 8.2; provided, however, that, notwithstanding anything to the contrary herein (including Section 8.2(e)), neither Buyer nor the Company shall be relieved or released from any liabilities or damages arising out of its willful and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful material breach of any covenant, agreement, representation or warranty provision of this Agreement giving rise to Agreement; provided, that in no event shall any party hereto be liable for punitive damages. For purposes of this Agreement, “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 terminationact would, or would reasonably be expected to, cause a breach of this Agreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event this Agreement is terminated by Parent Buyer pursuant to Section 8.01(f8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay to Buyer an amount equal to $3,500,000 (gthe “Termination Fee”); or.
(iic) if In the event (i) this Agreement is terminated by (A) Parent the Company or Buyer pursuant to Section 8.01(b8.1(e) or (B8.1(c) by either Parent or the Company Buyer pursuant to Section 8.01(e8.1(b), and (ii) on or before the date of any such termination, (x) an Acquisition Proposal with respect to the Company shall have been publicly disclosed or announced and not withdrawn (x) in the case of any a termination pursuant to clause (Ax) 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 announcedof Section 8.1(e), 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, (y) in the case of clause (Ba termination pursuant to Section 8.1(b), before the applicable breach by the Company, or the date of termination, (z) in the case of a termination pursuant to Section 8.1(c) or clause (Ay) of Section 8.1(e), before the date specified therein, then (x) the Company shall pay to Parent Buyer (A) an amount equal to $1.0 million 15% of the Termination Fee on the second Business Day following such termination, termination and (yB) if within 18 eighteen (18) months after of such termination termination, the Company shall consummate a transaction or have entered into a Subsidiary definitive agreement for a transaction with any third party that involves the consummation of a transaction described in the Company enters into an agreement definition of Acquisition Transaction (but replacing references to “15% or more” with respect to, “50% or consummates, an Acquisition Proposalmore”), then the Company shall pay to Parent Buyer, upon consummation of such transaction, the remaining 85% of the Termination Fee less the Expense Amount if previously paid.
(d) If this Agreement is terminated pursuant to Section 8.1(e) or by Buyer pursuant to Section 8.1(b), but the Termination Fee (net or any portion thereof) has not been paid and is not then payable, the Company shall pay at the direction of Buyer as promptly as practicable (but in any payment made pursuant to clause event within two (x2) aboveBusiness Days after receipt of Buyer’s request therefor), $250,000 (the “Expense Amount”) on account of the date expenses and opportunity costs incurred by Buyer and its Subsidiaries in connection with this Agreement and the transactions contemplated by this Agreement.
(e) Any payment of execution of such agreement or consummation of an Acquisition Proposal. Any amount that becomes payable the Termination Fee required to be made pursuant to this Section 8.02(b) 8.2 shall be paid made not more than two (2) Business Days after the date 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 be payable concurrently with such termination. All payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account designated by ParentBuyer. The payment of the Termination Fee and/or Expense Amount by the Company pursuant to Sections 8.2(b), 8.2(c) or 8.2(d) shall be the sole and exclusive remedy of Buyer, Buyer Bank and Merger Sub in connection with the termination of this Agreement under the circumstances described thereunder, except as otherwise provided in the proviso to Section 8.2(a).
(cf) The Company and Parent agree Company Bank acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.2 are an integral part of the transactions contemplated by this AgreementAgreement and that, that without such agreement Parent these agreements, Buyer, Buyer Bank and Merger Sub would not have entered enter into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If Accordingly, if the Company fails promptly to pay Parent any amount due pursuant to this Section 8.2 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for all or a portion of the time periods specified thereinamount set forth in this Section 8.2, the Company shall pay the to Buyer its costs and expenses (including reasonable legal attorneys’ 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 amounts44 suit, together with interest on the amount of any such unpaid all amounts due pursuant to this Section 8.2 at an interest rate equal to the prime lending rate prevailing during such period as published of Citibank N.A. in The Wall Street Journal, calculated effect on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade plus 200 basis points.
Appears in 1 contract
Sources: Merger Agreement (LSB Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall have become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or further obligation damages to any the other party hereunder except (i) as set forth in hereto resulting from any willful and material breach of this Section 8.02 and Section 9.01 Agreement and (ii) that the provisions set forth in Section 6.10 (Expenses), this Section 8.5, Article IX and the Confidentiality Agreement shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if event that this Agreement is terminated as followsterminated:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g); or
(ii) if this Agreement is terminated by (Ax) Parent pursuant to Section 8.01(b) or (B) by either Parent JAB or the Company pursuant to Section 8.01(e8.2(a) and (in the case of any termination Section 8.2(a), if at such time the Shareholders Meeting has not been held and JAB is not in breach of its obligations under Section 6.5 and Section 6.9) or Section 8.2(b), or (y) JAB pursuant to clause Section 8.4(d) and in connection with either (Ax) or (By) therewith:
(A) 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 disclosed after the date of this Agreement hereof and not clearly withdrawn in good faith prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, Termination Date (in the case of clause (Btermination pursuant to Section 8.2(a) or Section 8.4(d), ) or the date of termination, Shareholders Meeting (in the case of clause termination pursuant to Section 8.2(b)); and
(A), then B) within twelve (x12) 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 of this Agreement, the Company or a Subsidiary any of the Company its Subsidiaries enters into an a definitive agreement with respect toto any Acquisition Proposal or consummates a transaction contemplated by any Acquisition Proposal (provided that for purposes of this clause (C), the references to “10%” and “15%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”) (any such agreement or consummatesconsummation, an “Acquisition ProposalEvent”), then the Company shall pay to Parent JAB the Termination Fee within two (net 2) business days of any payment made consummation of such Acquisition Event;
(ii) by the Company 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement8.3(b), that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, then the Company shall pay to JAB the costs and expenses Termination Fee prior to or concurrently with such termination; and
(including reasonable legal fees and expensesiii) incurred by Parent in connection with any action in which Parent prevailsJAB pursuant to Section 8.4 (other than Section 8.4(d)), including then the filing of any lawsuit, taken Company shall pay to collect payment JAB the Termination Fee within two (2) business days of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymenttermination.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event that this Agreement is terminated by the Company pursuant to Sections 7.3(a) or 7.3(b) or by Watson pursuant to Section 7.4(a) and the Company enters into an agreement or an understanding with respect to an Alternative Proposal within nine (9) months of the date of such termination and thereafter, consummates such transaction, then the Company shall promptly pay Watson a fee in an amount equal to $3,000,000. If (x) the Company terminates this Agreement pursuant to Section 7.3(a) or Watson terminates 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 termination of this Agreement or does not consummate such transaction within eighteen (18) months after the termination of this Agreement, the Company shall reimburse Watson for all actual out-of-pocket costs and expenses incurred by Watson in connection with this Agreement and the consummation and negotiation of the transactions contemplated hereby, including, without limitation, legal, professional and service fees and expenses, which amount shall be payable by wire transfer of same day funds within twelve months from the date of termination of this Agreement. The Company acknowledges that the agreements contained in this Section 7.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Watson and Watson Sub would not enter into this Agreement. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 7.5(a), and, in order to obtain such payment, Watson or Watson Sub commences a suit which results in a final, non-appealable judgment against the Company for the fee set forth in this Section 7.5(a), the Company shall pay to Watson its costs and expenses (including attorneys' fees) incurred by Watson in connection with such suit, together with interest on the amount of the fee at the rate of 12% per annum.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, no party to this Agreement shall have any liability or further obligation to any other party hereunder except (i) as set forth in this Section 8.02 and Section 9.01 and (ii) that termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such termination.
(b) The Company shall pay Parent the sum of $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 all obligations of the vote parties hereto shall terminate, except the obligations 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 parties pursuant to this Section 8.02(b) 7.5 and the provisions of Sections 5.6 and 5.10, which obligations shall be paid by wire transfer of immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that survive the agreement contained in paragraph (b) termination of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, that without such agreement Parent would not have entered into this 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 pay Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) V.5.1. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIV, no party to this Agreement shall have any liability or further obligation to any (other party hereunder except (i) than as set forth in this Section 8.02 6.1) shall become void and Section 9.01 and of no effect with no liability on the part of either Party (ii) or of any of its Representatives); provided, however, that no such termination will not shall relieve a breaching party from -------- ------- either Party of any liability for damages resulting from any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise or from any obligation to such terminationpay, if applicable, the amounts payable pursuant to Section 5.5.2 or 5.5.3.
(b) The Company shall pay Parent V.5.2. In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
event that (i) if this Agreement is terminated by Parent either BP Amoco or ARCO pursuant to Section 8.01(f5.2(iii) and at the time of the ARCO Stockholders Meeting (or (g); or
at any adjournment thereof) an ARCO Acquisition Proposal exists or (ii) if (A) this Agreement is terminated by (A) Parent either BP Amoco or ARCO pursuant to Section 8.01(b5.2(iii) and prior to such termination ARCO's board of directors shall have withdrawn its approval or favorable recommendation to its stockholders of this Agreement, (B) this Agreement is terminated by either Parent or the Company BP Amoco pursuant to Section 8.01(e5.3(i), Section 5.3(ii) 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 solely with respect to the Company Board (recommendation by ARCO or any Person shall have publicly announced, communicated or made known the board of directors of ARCO of an intention, whether or not conditional, to make an ARCO Acquisition Proposal) at any time or Section 5.3(iii) (solely with respect to a willful breach of Section 3.2), or (C) this Agreement is terminated by ARCO in accordance with Section 5.4(ii), then ARCO shall promptly, but in no event later than two business days 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 Meetingsuch termination or, in the case of termination pursuant to Section 5.4(ii), at the time provided therein, pay to BP Amoco as compensation for the Merger not becoming effective a termination payment equal to the ARCO Termination Amount (as defined below), which amount shall be exclusive of any expenses to be paid pursuant to Section 3.9, payable by wire transfer of same day funds. The term "ARCO Termination Amount" shall mean, in the ----------------------- case of termination by BP Amoco pursuant to clause (Bii) of the preceding sentence, $450,000,000 (inclusive of value added tax, if any) or, in the case of termination by BP Amoco or ARCO pursuant to clause (i) of the preceding sentence, "ARCO Termination Amount" shall mean $250,000,000 (inclusive of value added tax, if any), plus, if (x) ARCO executes and ---- delivers an agreement with respect to any ARCO Acquisition Proposal (an "ARCO Alternative Agreement") or (y) an ARCO Acquisition Proposal with --------------------------- respect to ARCO is consummated, in any such case, within 12 months from the date of termination, in the case an additional $200,000,000 (inclusive of clause value added tax, if any) (A), then (x) the Company shall pay to Parent an which additional 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 promptly by wire transfer of immediately available funds in same day funds, and in no event later than two business days after the earliest date on which the event requiring ARCO to an account designated by Parent.
(c) The Company and Parent agree pay such additional sum occurs). In the event that the agreement contained in paragraph (b) board of directors of ARCO recommends the acceptance by ARCO stockholders of a third-party tender or exchange offer for the ARCO Common Shares, such recommendation shall be treated for purposes of this Section 8.02 is as though an ARCO Alternative Agreement had been executed. ARCO acknowledges that the agreements contained in this Section 5.5.2 are an integral part of the transactions contemplated by this Agreement, that and that, without such agreement Parent these agreements, BP Amoco would not have entered enter into this 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 Agreement; accordingly, if ARCO fails promptly to pay Parent any amount due pursuant to this Section 5.5.2, and, in order to obtain such payment, BP Amoco commences a suit which results in a judgment against ARCO for the amounts due under paragraph (b) above within the time periods specified thereinpayment set forth in this Section 5.5.2, the Company ARCO shall pay the to BP Amoco its costs and expenses (including reasonable legal fees and expensesattorneys' fees) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis ARCO Termination Amount from the each date such amounts were required to be paid for payment until the date of actual paymentsuch payment at the prime rate of Citibank N.A. in effect on the date such payment was required to be made plus 2 percent.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger is abandoned pursuant to this Article VIIIVII, no party to this Agreement shall have any become void and of no effect with no liability or further obligation to any other Person on the part of any party hereunder except hereto (or of any member of the Parent Group or the Company Group); provided, that (i) except as set forth in otherwise provided herein, no such termination shall relieve any party hereto of any liability to pay the Company Termination Fee or the Parent Termination Fee, as applicable, pursuant to this Section 8.02 7.5 or, subject to Sections 7.5(e) and Section 9.01 7.5(f), relieve the Company or Parent or Merger Sub of any liability for any Willful Breach of this Agreement prior to such termination, and (ii) that the provisions listed in the second sentence of Section 8.1 shall survive the termination will not relieve a breaching party from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement. The party desiring to terminate this Agreement giving rise pursuant to Section 7.2, 7.3 or 7.4 shall give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other parties in accordance with Section 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as followsevent that:
(i) if (A) this Agreement is terminated by Parent pursuant to Section 8.01(f7.2(a), Section 7.2(b) or Section 7.4(b) (gprovided that with respect to Section 7.2(a) and Section 7.4(b), the Stockholder Approval has not been obtained); or
(ii) if this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent any Person shall have publicly proposed, announced or the Company pursuant to Section 8.01(e) and made an Acquisition Proposal or, in the case of any a termination pursuant to clause (A) or (B) Section 7.4(b), an Acquisition Proposal shall have been publicly announced provided to the Company’s management or otherwise communicated or made known to the Company Board (or any Person shall have publicly announcedcommittee thereof), communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time in either case after the date of this Agreement and prior to the taking of Stockholders Meeting (and such Acquisition Proposal shall not have been withdrawn at least two (2) Business Days prior to the vote of the shareholders of the Company contemplated by this Agreement at the Company Stockholders Meeting) and, in the case of clause a termination pursuant to Section 7.4(b), prior to the breach that forms the basis for such termination; and (C) within twelve (12) months of such termination the Company shall have consummated an Acquisition Proposal or entered into a definitive agreement for an Acquisition Proposal that is subsequently consummated (whether consummated within such twelve (12)-month period or thereafter), then the Company shall, on the date such Acquisition Proposal is consummated, pay the Company Termination Fee to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clauses (B) and (C) above the references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) this Agreement is terminated by the Company pursuant to Section 7.3(a), the Company shall, prior to or substantially concurrently with such termination, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or more accounts designated by Parent; provided, that if (A) this Agreement is terminated by the Company pursuant to Section 7.3(a) prior to the No-Shop Period Start Date and (B) the Company has entered into a definitive Alternative Acquisition Agreement with an Excluded Party to consummate an Acquisition Proposal at the time of such termination, then the Company Termination Fee shall equal $110,000,000; or
(iii) this Agreement is terminated by Parent pursuant to Section 7.4(a), the Company shall, no later than three (3) Business Days after the date of such termination, pay the Company Termination Fee to Parent 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 Company Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 7.3(c), then Parent shall, no later than three (3) Business Days after the date of such termination, pay or cause to be paid the Parent Termination Fee to the Company or its designees by wire transfer of same day funds to one or more accounts designated by the Company (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion); provided, that any purported termination of this Agreement under Section 7.2(a) shall be deemed to be a termination under Section 7.3(c) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 7.3(c).
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, in either case as required pursuant to this Section 7.5 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the case City of clause New York from time to time during such period, as such bank’s prime lending rate. The Company and Parent each acknowledge that the fees and the other provisions of this Section 7.5 are an integral part of this Agreement and are not a penalty, but rather liquidated damages in a reasonable amount that will compensate the other party in the circumstances in which such fee is payable, and that, without these provisions, the other party would not enter into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that Parent and Merger Sub fail to effect the Closing or otherwise breach this Agreement or fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A)) Parent, then Merger Sub, the Financing Parties and the Equity Investors, (B) 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 or assignees of Parent Merger Sub or any Equity Investor or (C) 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 or assignees of any of the foregoing (collectively, the “Parent Group”) in respect of this Agreement, any agreement executed in connection herewith, including the Commitment Letters and each Limited Guarantee, and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company shall pay Parent Termination Fee pursuant to Section 7.5(c) (including any interest payable pursuant to Section 7.5(d)) from Parent an amount equal or pursuant to $1.0 million on each Limited Guarantee and, as applicable, the second Business Day following such terminationreimbursements contemplated by Sections 5.9 and 5.13, and (y) if within 18 months after such following the 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 immediately available funds to an account designated by Parent.
(c) The Company and Parent agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of Agreement by either party, the transactions contemplated by this Agreement, that without such agreement Company’s right to seek monetary damages from Parent would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach Parent’s or Merger Sub’s Willful Breach of this Agreement by prior to the Company. If termination of this Agreement (provided that in no event shall Parent be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of an amount equal to the Company fails to pay Parent Termination Fee (the amounts due under paragraph “Damage Cap”)) and (bii) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable 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 upon payment of such amounts, together with interest on no member of the Parent Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith, the Commitment Letters or each Limited Guarantee, or the transactions contemplated hereby or thereby; provided, that in no event will the Company be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts in excess of the amount of the Damage Cap, (2) payment of both monetary damages and the Parent Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any such unpaid amounts monetary damages and/or the Parent Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against Parent or Merger Sub that results in the Closing.
(f) Notwithstanding anything to the contrary in this Agreement, in the event that the Company fails to effect the Closing or otherwise breaches this Agreement or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) Parent’s and Merger Sub’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) the prime lending rate prevailing during such period as published Company and its Subsidiaries, (B) 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 or assignees of the Company or its Subsidiaries or (C) 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 or assignees of any of the foregoing (collectively, the “Company Group”) in The Wall Street Journalrespect of this Agreement, calculated on a daily basis any agreement executed in connection herewith and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company Termination Fee pursuant to Section 7.5(b) (including any interest payable pursuant to Section 7.5(d)) from the date Company, and (y) following the termination of this Agreement by either party, Parent’s right to seek monetary damages from the Company in the event of the Company’s Willful Breach of this Agreement prior to the termination of this Agreement (provided that in no event shall the Company be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of the Damage Cap) and (ii) upon payment of such amounts, no member of the Company Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby or thereby; provided, that in no event will Parent and Merger Sub be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts were required to be paid until in excess of the date amount of actual paymentthe Damage Cap, (2) payment of both monetary damages and the Company Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any monetary damages and/or the Company Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against the Company that results in the Closing.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement by either Buyer or the Company as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of Buyer, the abandonment Company, any of their respective Subsidiaries or any of the Merger pursuant to this Article VIII, no party to this Agreement officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or further obligation to any other party hereunder in connection with the transactions contemplated hereby, except that Sections 6.3 (iPress Releases), 6.13 (Confidentiality Agreement) as set forth in and 9.5 (Expenses) and this Section 8.02 8.2 and Section 9.01 and (ii) that all other obligations of the parties specifically intended to be performed after the termination will not relieve a breaching party of this Agreement shall survive any termination of this Agreement; provided, however, that, notwithstanding anything to the contrary herein, none of Buyer or the Company shall be relieved or released from liability for any liabilities or damages arising out of its willful breach of any covenant, agreement, representation or warranty provision of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event this Agreement is terminated by Parent Buyer pursuant to Section 8.01(f) or 8.1(f), the Company shall pay to Buyer an amount equal to $2,212,500 (gthe “Termination Fee”); or.
(iic) if In the event that this Agreement is terminated by (A) Parent pursuant to Section 8.01(b) or (B) by either Parent Buyer or the Company pursuant to Section 8.01(e) and in the case of any termination pursuant to clause (A8.1(b) or (BSection 8.1(e) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known due to the Company Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, failure to make an Acquisition Proposal) at any time after obtain the date of this Agreement and prior to the taking approval of the vote of the shareholders of the Company contemplated by this Agreement Company’s stockholders at the Company Meeting, and (i) an Acquisition Proposal with respect to the Company shall have been 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 the case of clause (BSection 8.1(b), or the date as applicable, and (ii) within 12 months of such termination, in the case of clause (A), then Company shall have (x) the Company shall pay recommended to Parent its stockholders or consummated a transaction qualifying as an amount equal to $1.0 million on the second Business Day following such termination, and Acquisition Transaction or (y) if within 18 months after such termination the Company or entered into a Subsidiary of the Company enters into an definitive agreement with respect to, or consummates, to an Acquisition ProposalTransaction, then the Company shall pay to Parent Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.”
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(c) and (i) an Acquisition Proposal with respect to the Company shall have been 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, the Company shall have (x) recommended to its stockholders 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 pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.”
(e) Any payment of the Termination Fee (net of any payment required to be 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) 8.2 shall be paid made not more than two Business Days after the date of the event giving rise to the obligation to make such payment. All payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account designated by ParentBuyer.
(cf) The Buyer and the Company and Parent agree acknowledge that the agreement agreements contained in paragraph (b) of this Section 8.02 is 8.2 are an integral part of the transactions contemplated by this AgreementAgreement and that, that without such agreement Parent these agreements, Buyer would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the CompanyAgreement. If Accordingly, if the Company fails promptly to pay Parent any amount due pursuant to this Section 8.2 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the amounts due under paragraph (b) above within Company for the time periods specified thereinamount set forth in this Section 8.2, the Company shall pay the to Buyer its costs and expenses (including reasonable legal attorneys’ 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 amountssuit, together with interest on the amount of any such unpaid amounts the Termination Fee at the prime lending rate prevailing during such period (as published reported in The Wall Street JournalJournal or, calculated if not reported therein, in another authoritative source) on a daily basis from the date such amounts were payment was required to be paid until the date of actual paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of 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 (i) than as set forth in this Section 8.02 9.1) shall become void and Section 9.01 of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and (ii) that financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination will not shall relieve a breaching any party hereto of any liability or damages resulting from liability for any willful breach of any covenant, agreement, representation or warranty of this Agreement giving rise to such terminationAgreement.
(b) The Company shall pay Parent In the sum of $7.5 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if event that 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 (A8.2(i), Section 8.2(ii) or Section 8.3 and, prior to the date of such termination, any Person (Bother than Parent) an Acquisition Proposal shall have been publicly announced or otherwise communicated or has made known to the Company Board (or any Person of its Subsidiaries a bona fide Acquisition Proposal or shall have publicly announced, communicated or made known announced an intention, intention (whether or not conditional, ) to make an Acquisition Proposal) at any time after the date of this Agreement and prior a proposal or offer relating 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 Parent, no later than two days after the earlier to Parent the Termination Fee occur of (net of any payment made pursuant to clause (xi) above) on the date of execution entrance by the Company or any of such its Subsidiaries into an agreement or consummation of concerning a transaction that constitutes an Acquisition Proposal. Any amount that becomes payable pursuant to this Section 8.02(bProposal or (ii) shall be paid by wire transfer the date any Person (other than Parent) purchases 50% or more of immediately available funds to an account designated by Parent.
(c) The the assets or any voting securities of the Company and Parent agree its Subsidiaries (provided that the entering of any definitive agreement contained referred to in paragraph clauses (bi) and (ii) of this Section 8.02 sentence is an integral part entered into by the Company or any of the transactions its Subsidiaries, or if there is no such agreement with respect to a purchase contemplated by clause (ii), any tender, exchange or other offer or arrangement for the Company's voting securities is first publicly disclosed, within 18 months of such termination of this Agreement), a termination fee of $500 million. In the event that without such agreement Parent would not have entered into this Agreement and that such amounts do not constitute a penalty is terminated by Parent or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails pursuant to pay Section 8.2(iii), then Parent the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevailsCompany, including the filing no later than two days after this Agreement has been terminated, a termination fee of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment$500 million.
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Sources: Merger Agreement (American International Group Inc)