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 shall become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof. (b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 3 contracts
Sources: Merger Agreement (Visicu Inc), Merger Agreement (Sterling Venture Partners L P), Merger Agreement (Cardinal Health Partners Lp)
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 VIII9, this Agreement shall terminate and 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, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided hereinthe provisions set forth in this Section 9.05, no such Article 10 (Miscellaneous and General) and the agreements of the Company, Parent and Merger Sub contained in Section 7.09 (Expenses), and any confidentiality agreement(s) shall survive the termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) nothing herein shall relieve the provisions Company, Parent or Merger Sub from liability for (x) any Deliberate and material breach of any of its representations, warranties, covenants and agreements set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of occurring prior to such termination shall have been given by nor (y) in the terminating party pursuant to Section 9.6case of Parent or Merger Sub, specifying the provision or provisions any failure of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Parent and Merger Sub to consummate the Offer as provided by this Agreement notwithstanding satisfaction of all the Offer Conditions (other than conditions that by their nature are to be satisfied at the Offer Closing) or to perform their covenants in Section 7.15, and any aggrieved party shall not be entitled to terminate this Agreement all rights and remedies at law or receive any notice thereof.
(b) In in equity, including the event that (i) an Acquisition Proposal shall have been made right of the aggrieved party to seek the Company or any benefit of its stockholders or any Person shall have publicly announced an intention bargain (whether or not conditional) to make an Acquisition Proposal with respect to in the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination case of this Agreementthe Company, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) bargain lost 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 ParentCompany’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(ashareholders), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that in connection with any Deliberate and material breach described in the foregoing clause (x), or any failure described in the foregoing clause (y), in no event shall the Company be entitled to any other rights or remedies at law or in equity in the event that it elects to receive (and does receive) the Parent Termination Fee, and in no event shall the Company be entitled to the Parent Termination Fee in the event that it elects to be paid pursuant to clause receive (iiiand does receive) shall be paid as set forth any other remedies at law or in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement equity with respect to, to such failure or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for breach. For purposes of this Agreement, “Deliberate” means an Acquisition Proposal shall not be deemed action or failure to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made act by or on behalf with the consent of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part executive officer of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into party where the executive officer has actual knowledge that such action or failure to act will constitute a breach of this Agreement; accordinglyprovided however, that failure by Parent to pay the aggregate Offer Price or the aggregate Merger Consideration when and if required by and in accordance with the Company fails to promptly pay terms of this Agreement shall be deemed Deliberate whether or not Financing or any 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 Company for the fee, to which reference other financing is made in this Section 8.5(b), the Company shall pay available to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentSub.
Appears in 3 contracts
Sources: Merger Agreement (Campbell Thomas J), Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b), (c), (d) and (e) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the second sentence of this Section 8.5 and Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have made or publicly announced or otherwise communicated to the Company, the board of directors of the Company or any Representatives of the Company an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business no more than 75 days prior to termination of this Agreementfollowing the date such Acquisition Proposal has been made, with respect to any termination of this Agreement pursuant to Section 8.2(a), or and (B) no fewer than five business days prior to termination of this Agreementto, with respect to termination of this Agreement pursuant to Section 8.2(b), the date of the Stockholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a), 8.2(b) or 8.2(b8.4(b), ;
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Exelon Corp), Agreement and Plan of Merger (Potomac Electric Power Co)
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 VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 the Company of any liability to pay the Termination Fee pursuant to this Section 9.5, (ii) except as otherwise provided herein, no such termination shall will relieve any party hereto of any liability or damages resulting from to the other party hereto for any willful or intentional breach of this Agreement Agreement, (iii) no such termination shall affect the approval of the Continuing Offer by the Board for purposes of Section 203 of the DGCL and such approval shall remain in full force and effect to the extent the Continuing Offer continues to constitute a Continuing Offer, and (iiiv) the provisions set forth in the second sentence of this Section 9.1 9.5 and Article X shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to (x) before obtaining the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this AgreementRequisite Vote, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a9.2(a) or 8.2(b(the section relating to the Termination Date), or Section 9.2(b) (the section relating to failure to receive stockholder approval) and (y) within eighteen (18) months of such termination the Company shall have consummated an Acquisition Proposal (provided that for purposes of this clause (y) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”) as a result of which the holders of Shares shall be entitled to receive, either directly or indirectly, consideration (whether cash or otherwise) having an aggregate value of more than $5.50 per Share;
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or 9.4(a) (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise section relating to Parent’s right to terminate under Section 8.4(afor a Change of Recommendation) shall have occurred, or by Parent or the Company pursuant to another provision of Article IX at a time when Parent had the right to terminate this Agreement pursuant to 9.4(a); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a9.3(a) (the section relating to an Alternative Acquisition Agreement with respect to a Superior Proposal);
(iv) (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 9.2(a) (the section relating to the Termination Date), then or Section 9.2(b) (the Company section relating to failure to receive stockholder approval), (y) any Person shall promptly, but in no event later than two days have made or publicly announced a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, pay Parent and such Acquisition Proposal shall not have been publicly withdrawn without qualification in a manner that would reasonably be expected to adversely affect the receipt of the Company Requisite Vote in any material respect at least ten (10) calendar days prior to, with respect to Section 9.2(a), the date of termination, or at least five (5) business days prior to, with respect to a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause Section 9.2(b), the Stockholders Meeting and (iiiz) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause within eighteen (i18) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (y) of this Section 9.5(b)(iv)) (provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have been be references to “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 8.5(b50%”), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 2 contracts
Sources: Merger Agreement (Icahn Enterprises L.P.), Merger Agreement (Dynegy Inc.)
Effect of Termination and Abandonment. (a) In The Party terminating this Agreement pursuant to Section 8.1 (other than pursuant to Section 8.1(a)) must deliver prompt written notice thereof to the other Parties setting forth in reasonable detail the provision of Section 8.1 pursuant to which this Agreement is being terminated and the facts and circumstances forming the basis for such termination. Except to the extent provided in this Section 8.2, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.1, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, provided that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in this Section 8.2 and the second sentence and third sentences of Section 9.1 shall survive the termination of this Agreement. No Notwithstanding the previous sentence, but subject to Section 8.2(d) and Section 8.2(e), nothing in this Agreement, including the Closing, will relieve any Party from any liability for any fraud or Willful Breach of this Agreement prior to the termination of this Agreement. In addition to the foregoing, no termination of this Agreement shall be effective unless and until notice will affect the rights or obligations of such termination shall have been given by the terminating party any Party pursuant to Section 9.6the Confidentiality Agreement and the Guarantees, specifying which rights, obligations and agreements will survive the provision or provisions termination of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofin accordance with their respective terms.
(b) In Subject to Section 8.2(e), in the event that this Agreement is validly terminated:
(i) an (A) (1) by the Company or Parent pursuant to Section 8.1(b) (Outside Date), (2) by either the Company or Parent pursuant to Section 8.1(c) (Company Stockholder Approvals Not Obtained) or (3) by Parent pursuant to Section 8.1(e) (Company Breach);
(A) a bona fide Acquisition Proposal shall have been made publicly (or otherwise become publicly known), announced or disclosed or otherwise proposed or communicated to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an the Company Board which Acquisition Proposal with respect has not been withdrawn at least five Business Days prior to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on Stockholders Meeting or prior to the date of termination in the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company case of a termination pursuant to Section 8.3(a8.1(e), 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 $12,825,000 ; and
(the “Termination Fee”B) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of after such termination, the Company shall have consummated a transaction contemplated by an Acquisition Proposal or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal; provided that, for purposes of this Section 8.2(b)(i)(C), the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) by Parent pursuant to Section 8.1(g) (Change of Recommendation); or
(iii) by the Company pursuant to Section 8.1(h) (Superior Proposal); then, (1) in the case of Section 8.2(b)(i), concurrently with the earlier of the entry into such Alternative Acquisition Agreement and the consummation of such Acquisition Proposal, (2) 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, and as a condition to, termination of this Agreement, the Company shall pay or shall cause to be paid a termination fee of $4,077,500 (the “Company Termination Fee”) to Parent by wire transfer of immediately available funds to an account designated in writing by Parent.
(c) In the event this Agreement is validly terminated:
(i) by the Company pursuant to Section 8.1(f) (Terminable Breach) or Section 8.1(i) (Parent Failure to Close);
(ii) by the Company or Parent pursuant to Section 8.1(b) or Section 8.1(k) at a time when the Company could have consummated terminated this Agreement pursuant to Section 8.1(f) (Terminable Breach) or shall have approvedSection 8.1(i) (Parent Failure to Close), adopted or recommended (iii) or by Parent pursuant to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of Section 8.1(k) if prior to such Person or termination Parent materially breached any of its Affiliates. obligations in Section 6.3 or Section 6.8, then within two Business Days after termination of this Agreement, Parent shall pay or cause to be paid a termination fee of $5,825,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in writing by the Company.
(d) The Company acknowledges Parties agree that the agreements contained in this Section 8.5(b8.2(b) and Section 8.2(c) are an integral part parts of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no Party would not enter have entered into this Agreement; accordingly, if . The Parties agree that the Company fails Termination Fee and the Parent Termination Fee shall not constitute a penalty but are 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 the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to promptly pay any amount due pursuant calculate with precision. In the event that a party is required to commence litigation as set forth in Section 9.5 to seek all or a portion of the amounts payable to such party under this Section 8.5(b)8.2, andand such party prevails in the litigation, it shall be entitled to receive, in order addition to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, all amounts that it is otherwise entitled to which reference is made in receive under this Section 8.5(b)8.2, the Company shall pay to Parent or Merger Sub its costs and all expenses (including reasonable attorneys’ feesfees of outside counsel)) which it has incurred in connection with such suitenforcing its rights hereunder, together with interest on the such amount of the fee or portion thereof at the prime rate of Citibank N.A. set forth in the Wall Street Journal in effect on the date such payment was required to be made through until but excluding the date of paymentthe payment was actually received or lesser rate that is the maximum permitted by applicable Law; provided that in no event shall costs, expenses and interest set forth herein exceed $1,000,000 in the aggregate.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vacasa, Inc.), Agreement and Plan of Merger (Vacasa, Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them shall have any liability of any nature whatsoever hereunder, or Affiliatesin connection with the transactions contemplated hereby, except that Sections 6.3 (Press Releases), 6.13 (Confidentiality Agreement) and 9.5 (Expenses) and this Section 8.2 and 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 (i) except as otherwise provided that, notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f), the Company shall pay to Buyer an amount equal to $5,320,943 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.1(e) or Section 8.1(b) due to the failure to obtain the approval of the Company’s shareholders required for the consummation of the Merger, and (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on Meeting or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under specified in Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.1(b), then the Company shall promptlyas applicable, but in no event later than two days after the date of such termination, pay Parent a termination fee of $12,825,000 and (the “Termination Fee”ii) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause within twelve (iii12) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have (x) recommended to its shareholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into an Alternative Acquisition Agreement a definitive agreement with respect toto an Acquisition Transaction, or then the Company shall have consummated or shall have approved, adopted or recommended pay to Buyer an amount equal to the Company’s stockholders or otherwise not opposedTermination 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 publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.1(c) and (ii) within twelve (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 8.2(d), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.”
(e) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than two (2) Business Days after the date of the event giving rise to the obligation to make such payment. All payments under this Section 8.2 shall be made by or on behalf wire transfer of such Person or any of its Affiliates. The immediately available funds to an account designated by Buyer.
(f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub Buyer would not enter have entered into this Agreement; accordingly. Accordingly, if the Company fails promptly to promptly pay any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Parent or Merger Sub Buyer commences a suit which results in a judgment against the Company for the fee, to which reference is made amount set forth in this Section 8.5(b)8.2, the Company shall pay to Parent or Merger Sub Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank N.A. (as reported in effect The Wall Street Journal or, if not reported therein, in another authoritative source) on the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (DCB Financial Corp), Merger Agreement (First Commonwealth Financial Corp /Pa/)
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b), (c), (d) and (e) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the second sentence of this Section 8.5 and Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have made or publicly announced or otherwise communicated to the Company, the board of directors of the Company or any Representatives of the Company an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business no more than 75 days prior to termination of this Agreementfollowing the date such Acquisition Proposal has been made, with respect to any termination of this Agreement pursuant to Section 8.2(a), or and (B) no fewer than five business days prior to termination of this Agreementto, with respect to termination of this Agreement pursuant to Section 8.2(b), the date of the Stockholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a), 8.2(b) or 8.2(b8.4(b), ;
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), ; then the Company shall promptly, but in no event later than two days after the date of such termination, promptly pay Parent a termination fee of $12,825,000 (the “Termination Fee”) , payable by wire transfer of same day immediately available funds; provided, however, that (A) in the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to case of clause (i) of this Section 8.5(b) unless and until within 12 months of such termination ), immediately prior to or substantially concurrent with the entry by the Company shall have entered or any of its Subsidiaries into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated upon consummation or shall have approved approval or recommended recommendation to the Company’s stockholders or otherwise not opposedof, an Acquisition Proposal (substituting “50%” for “2015%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall thereof) (whether or not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.Acquisition
Appears in 2 contracts
Sources: Merger Agreement (Potomac Electric Power Co), Merger Agreement (Exelon 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 VIIIIX, written notice thereof shall be given to the other Party or Parties and Tencent specifying the provision hereof pursuant to which such termination is made, and this Agreement shall become void and of no effect with no liability on the part of any party Party hereto or Tencent (or of any of its Representatives or Affiliatestheir respective Representatives); provided, however, that (i) except as otherwise provided hereinthis Section 9.5, no such Section 7.8 and Article X (in each case, subject to the terms thereof) shall remain in full force and effect and survive termination of this Agreement, (ii) nothing herein shall relieve any party hereto Party or Tencent of any liability or damages resulting from any willful or intentional and material breach of any representations, warranties, covenant or agreement contained in this Agreement prior to such termination and (iiiii) the provisions set forth in the second sentence of Section 9.1 nothing herein shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision relieve any Party or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofTencent from liability for fraud.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent DouYu, Huya or Tencent pursuant to Section 8.4(a), 9.2(c) or (B) by DouYu, Huya or Tencent if the Company pursuant to Section 8.2(b) and, on or Required DouYu Vote is not obtained prior to the date Outside Date, in each case of (A) and (B) other than as a result of Tencent’s breach of Section 7.17, (ii) the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or DouYu Board has effected a DouYu Change of Recommendation and (iii) this Agreement is not at such time able to be terminated by the Company Huya or Tencent pursuant to Section 8.3(a)9.3, then DouYu shall pay Huya the Company No Vote Termination Fee in cash in same day funds (x) in the event this Agreement is terminated by Huya or Tencent, as promptly as possible (but in any event within two (2) Business Days) after such termination, (y) in the event this Agreement is terminated by DouYu, prior to such termination.
(c) In the event that this Agreement is terminated by Huya or Tencent pursuant to Section 9.3, DouYu shall promptly, pay Huya in cash in same-day funds as promptly as possible (but in any event within two (2) Business Days) after such termination the Termination Fee. The Parties acknowledge and agree that in no event later than two days after shall DouYu be required to pay the date of such termination, pay Parent a termination fee of $12,825,000 (the “No Vote Termination Fee”) by wire transfer of same day funds; provided, however, that Fee or the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; providedon more than one occasion, further, that no whether or not the No Vote Termination Fee shall or the Termination Fee may be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes under more than one provision of this Agreement, an Acquisition Proposal at the same or at different times or upon the occurrence of different events.
(d) In the event that this Agreement is terminated by DouYu or Tencent pursuant to Section 9.4, Huya shall pay DouYu in cash in same-day funds as promptly as possible (but in any event within two (2) Business Days) after such termination the Termination Fee. The Parties acknowledge and agree that in no event shall Huya be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be deemed payable under more than one provision of this Agreement, at the same or at different times or upon the occurrence of different events.
(i) Subject to have been “publicly withdrawn” by Section 9.5(g) and Section 10.9, Huya’s receipt of the No Vote Termination Fee or the Termination Fee from DouYu pursuant to Section 9.5(b) and Section 9.5(c) shall be the sole and exclusive remedy of Huya and its Subsidiaries against the DouYu Related Parties (other than the DouYu Voting Shareholders pursuant to the terms of the DouYu Voting Agreements) for any Person ifloss suffered as a result of any breach of any covenant or agreement or the failure of the Merger to be consummated, within 12 months and upon payment of such terminationamount, none of the DouYu Related Parties (other than the DouYu Voting Shareholders pursuant to the terms of the DouYu Voting Agreements) shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement and, (ii) subject to Section 9.5(g) and Section 10.9, DouYu’s receipt of the Termination Fee from Huya pursuant to Section 9.5(d) shall be the sole and exclusive remedy of DouYu and its Subsidiaries against the Huya Related Parties for any loss suffered as a result of any breach of any covenant or agreement or the failure of the Merger to be consummated, and upon payment of such amount, none of the Huya Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, subject to Section 9.5(g), (A) under no circumstances will Huya be entitled to monetary damages in excess of the amount of the No Vote Termination Fee or the Termination Fee, as applicable, and (B) under no circumstances will DouYu be entitled to monetary damages in excess of the amount of the Termination Fee.
(f) The Parties expressly acknowledge and agree that, with respect to any termination of this Agreement under circumstances in which the No Vote Termination Fee or the Termination Fee is payable pursuant to this Section 9.5, payment of the No Vote Termination Fee or the Termination Fee, as required hereunder, shall constitute liquidated damages with respect to any claim for damages or any other claim which DouYu or Huya, as the case may be, would otherwise be entitled to assert against the other party or its assets, employees or equity holders (without limiting any claims otherwise available to Huya against the DouYu Voting Shareholders pursuant to the DouYu Voting Agreements) or any other DouYu Related Party or Huya Related Party, as the case may be, with respect to any such termination of this Agreement. The Parties expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement under circumstances in which the No Vote Termination Fee or the Termination Fee is payable pursuant to this Section 9.5, the Company or right to such payment (A) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination of its Subsidiaries this Agreement, and (B) shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to be in full and complete satisfaction of any and all damages arising as a result of any such termination of this Agreement.
(g) Each of the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company Parties and Tencent acknowledges that the agreements contained in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the other parties would not enter have entered into this Agreement; accordingly, if DouYu or Huya, as the Company case may be, fails to promptly pay any the amount due pursuant to this Section 8.5(b)9.5, and, in order to obtain such payment, Parent Huya or Merger Sub DouYu, as the case may be, commences a suit which results in a judgment against the Company other party for the fee, to which reference is made amounts set forth in this Section 8.5(b)9.5, the Company such paying party shall pay to Parent or Merger Sub the other party its reasonable and documented costs and expenses (including attorneys’ fees) in connection with such suit.
(h) For the avoidance of doubt, together with interest on if this Agreement is terminated pursuant to Section 9.2(b) or Section 9.2(a) due to failure to satisfy the amount closing condition under Section 8.1(d), neither Huya nor DouYu is under any obligation to pay the Termination Fee.
(i) For the avoidance of doubt, Tencent is not entitled to receive the fee at No Vote Termination Fee or the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentTermination Fee from either Huya or DouYu.
Appears in 2 contracts
Sources: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(d) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither TriCo nor FNBB shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The parties hereto agree that FNBB shall pay TriCo the sum of $12.0 million (the “Termination Fee”) as follows:
(i) if this Agreement is terminated by TriCo pursuant to Section 8.01(f) (Failure to Recommend, etc.), FNBB shall pay the Termination Fee to TriCo on the second sentence of Section 9.1 shall survive (2nd) Business Day following the termination of this Agreement. No ;
(ii) if this Agreement is terminated by FNBB pursuant to Section 8.01(h) (Superior Proposal), FNBB shall pay the Termination Fee to TriCo on the date of the termination of this Agreement; or
(iii) if this Agreement shall be effective unless is terminated by (A) TriCo pursuant to Section 8.01(b) (Breach), or (B) by either TriCo or FNBB pursuant to Section 8.01(c) (Delay) and until notice at the time of such termination no vote of the FNBB shareholders contemplated by this Agreement at the FNBB Meeting shall have been given occurred, or (C) by the terminating party TriCo or FNBB pursuant to Section 9.68.01(e)(i) (No Shareholder Approval), specifying and in the provision or provisions case of Section 8.1, 8.2, 8.3 or 8.4 any termination pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement clause (A), (B) or receive any notice thereof.
(b) In the event that (i) C), an Acquisition Proposal shall have been publicly announced and communicated or made known to the Company executive officers of FNBB or any of its stockholders the FNBB Board (or any Person shall have publicly announced and communicated or made known an intention (intention, whether or not conditional) , to make an Acquisition Proposal with respect Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination date of this Agreement pursuant and prior to Section 8.2(athe taking of the vote of the shareholders of FNBB contemplated by this Agreement at the FNBB Meeting, in the case of clause (C), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of termination, in the Stockholders Meetingcase of clause (A) or (B), then (1) if within twelve (12) months after such termination FNBB enters into an agreement with respect to a Control Transaction, then FNBB shall pay to TriCo the Termination Fee on the date of execution of such agreement and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with FNBB within twelve (12) months after such termination, then FNBB shall pay to TriCo the Termination Fee on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “Control Transaction” means (i) the acquisition by any event giving rise to Parent’s right to terminate under Section 8.4(aPerson whether by purchase, merger, consolidation, sale, transfer or otherwise, in one transaction or any series of transactions, of a majority of the voting power of the outstanding securities of FNBB or First National Bank or a majority of the assets of FNBB or First National Bank, (ii) shall have occurred, any issuance of securities resulting in the ownership by any Person of more than twenty-five percent (25%) of the voting power of FNBB or by any Person other than FNBB or First National Bank of more than ten percent (10%) of the voting power of First National Bank or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a)any merger, 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, consolidation or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company other business combination transaction involving FNBB or any of its Subsidiaries as a result of which the shareholders of FNBB cease to own, in the aggregate, at least fifty percent (50%) of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect toaccount designated by TriCo. Under no circumstances shall FNBB be obligated to pay the Termination Fee on more than one occasion, or and the parties hereby acknowledge and agree that in the event the Termination Fee becomes payable and is paid by FNBB pursuant to this Section 8.02, the Termination Fee shall have consummated or shall have approved, adopted or recommended to the Companybe TriCo’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges sole and exclusive remedy under this Agreement.
(c) FNBB and TriCo agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions Transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement TriCo would not enter have entered into this Agreement; accordingly, if and that such amount does not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by FNBB. If FNBB fails to promptly pay any TriCo the amount due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company FNBB shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by TriCo in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamount, provided TriCo prevails on the merits, together with interest on the amount of the fee any such unpaid amount at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment amount was required to be made through paid until the date of actual payment.
Appears in 2 contracts
Sources: Merger Agreement (FNB Bancorp/Ca/), Merger Agreement (Trico Bancshares /)
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, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any willful or intentional and material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this , and the Confidentiality Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofsurvive in accordance with its terms.
(b) In the event that (i) an 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 have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least ten (A10) 10 business days prior to termination of this Agreementto, with respect to any termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination the date of this Agreementtermination, and with respect to termination of this Agreement pursuant to Section 8.2(b), ) the date of the Stockholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) (Drop Dead) or 8.2(b) (No Stockholder Approval), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), (b) or (Bc) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a) (Fiduciary Out), then the Company shall promptly, but in no event later than two (2) days after the date of such termination, pay Parent a termination fee of $12,825,000 85,000,000 (the “Termination Fee”) and reimburse reasonable documented out-of-pocket expenses actually incurred by wire transfer Parent or Merger Sub up to a maximum of same day funds; $7,500,000 in the aggregate (provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3), in each case payable by wire transfer of same day funds; provided, furtherhowever, that no Termination Fee and reimbursement of expenses shall be payable to Parent pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until within 12 months of such termination termination, (I) the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal or (II) 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 Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any 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 that results in a judgment against the Company for the fee, to which reference is made fee set forth in this Section 8.5(b)) or any portion of such fee, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank Citibank, N.A. in effect on the date such payment was required to be made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee and any reimbursement of expenses pursuant to this Section 8.5(b) becomes payable and is paid by the Company and accepted by Parent pursuant to this Section 8.5(b), the Termination Fee and such reimbursement of expenses shall be Parent’s and Merger Sub’s sole and exclusive remedy.
Appears in 2 contracts
Sources: Merger Agreement (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals International, 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 pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliatesaffiliates); provided, however, and notwithstanding anything herein to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or and intentional material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an 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 have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 thirty (30) business days prior to termination of this Agreementto, with respect to any termination of this Agreement pursuant to Section 8.2(a), or the date of termination, and (B) five at least ten (10) business days prior to termination of this Agreementto, with respect to termination of this Agreement pursuant to Section 8.2(b8.2(c), the date of the termination or expiration of the Offer) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a8.(2)(a) [Drop Dead] or 8.2(b)8.2
(c) [No Stockholder Approval], (ii) this Agreement is terminated either (A) by Parent pursuant to Section 8.4(a)8.4, or (B) by the Company pursuant to Section 8.2(bSections 8.2(a) or 8.2(c) and, on or prior to the date of the Stockholders Meetingsuch termination, any event giving rise to Parent’s right to terminate under Section 8.4(a) 8.4 shall have occurred, occurred or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a)8.3(b) [Fiduciary Out], then the Company shall promptly, but in no event later than two ten (10) days after the date of such termination, pay to Parent a termination fee of $12,825,000 900,000 (the “Termination Fee”); and the Company shall, promptly, but in no event later than ten (10) business days after being notified of such by wire transfer Parent, pay all of same day fundsthe documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent or Merger Sub in connection with this Agreement, the Ancillary Agreements and the Transactions up to a maximum amount of $225,000; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable paid to Parent pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until within 12 months of such termination (1) the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal or (2) there shall have been consummated an Acquisition Proposal (substituting in both instances “50%” for “2015%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality or standstill agreement) with respect to, or shall have consummated or shall have approved, adopted approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentaffiliates.
Appears in 2 contracts
Sources: Merger Agreement (Viking Systems Inc), Agreement and Plan of Merger (Conmed 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, 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 become void and of no effect with no liability on the part of any party Party hereto (or of any of its Representatives or AffiliatesRepresentatives); provided, however, that (i) this Section 8.5, Section 6.8 and Article IX (in each case, subject to the terms thereof) shall remain in full force and effect and survive termination of this Agreement, (ii) except as otherwise provided herein, specifically set forth in this Section 8.5 no such termination shall relieve any party Party hereto of any liability or damages resulting from (A) any willful or intentional breach of any representations or warranties contained in this Agreement prior to such termination or (B) any breach of any covenant or agreement contained in this Agreement prior to such termination, and (iiiii) the provisions set forth in the second sentence of Section 9.1 nothing shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive relieve any notice thereofParty from liability for fraud.
(b) In the event that (i) an Acquisition Proposal shall have been made this Agreement is terminated by Parent pursuant to Section 8.4 or the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of terminates this Agreement pursuant to Section 8.2(a8.3(c), then the Company shall pay Parent in cash in same-day funds as promptly as possible (but in any event within two business days) after such termination the Termination Fee. For the avoidance of doubt, subject to Section 9.8, the right of Parent to receive payment from the Company of the Termination Fee 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 loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (Band the abandonment or termination hereof or thereof) five business days prior or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Company Related Parties shall have any further liability or obligation 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. The Parties acknowledge and agree that in no event shall the Company be required to termination pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this Agreement, with respect to termination at the same or at different times or upon the occurrence of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or different events.
(c) In the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) that this Agreement is terminated by the Company pursuant to Section 8.3(a) or Section 8.3(b), then Parent shall pay the Company in cash in same-day funds as promptly as possible (but in any event within two business days) after such termination the Termination Fee. For the avoidance of doubt, subject to Section 9.8, the right of the Company to receive payment from Parent of the Termination Fee referred to in this Section 8.5(c) shall promptlybe 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, but 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, 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 Parties acknowledge and agree that in no event later than two days after the date of such termination, shall Parent be required to pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; providedon more than one occasion, further, that no whether or not the Termination Fee shall may be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes under more than one provision of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months at the same or at different times or upon the occurrence of such termination, different events.
(d) Each of the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company Parties acknowledges that the agreements contained in this Section 8.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the other Parties would not enter have entered into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to promptly pay any the amount due pursuant to this Section 8.5(b)8.5, and, in order to obtain such payment, Parent or Merger Sub the Company, as the case may be, commences a suit which results in a judgment against the Company for the feeother Party, to which reference is made in this Section 8.5(b), the Company shall pay with respect to Parent or Merger Sub Sub, or Parties, with respect to the Company for amounts set forth in this Section 8.5, such paying Party shall pay the other Party or Parties, as applicable, its reasonable and documented costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 2 contracts
Sources: Merger Agreement (E-House (China) Holdings LTD), Merger Agreement (China Real Estate Information 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, 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 become void and of no effect with no liability on the part of any party Party hereto (or of any of its Representatives or AffiliatesRepresentatives); provided, however, that (i) except as otherwise provided hereinthis Section 8.5, no such Section 6.9 and Article IX (in each case, subject to the terms thereof) shall remain in full force and effect and survive termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement Agreement, and (ii) the provisions set forth in the second sentence of Section 9.1 nothing herein shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive relieve any notice thereofParty from liability for fraud.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company Y pursuant to Section 8.2(a8.3, Company T shall pay Company Y in cash in same-day funds as promptly as possible (but in any event within two business days) after such termination the Termination Fee. The Parties acknowledge and agree that in no event shall Company T be required to pay the Termination Fee on more than one occasion, whether or 8.2(b)not the Termination Fee may be payable under more than one provision of this Agreement, at the same or at different times or upon the occurrence of different events.
(iic) In the event that this Agreement is terminated (Ai) by Parent Company Y or Company T pursuant to Section 8.4(a8.2(d), or Company Y shall pay Company T the No Vote Termination Fee in cash in same day funds (Bx) by in 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) shall have occurred, or (iii) this Agreement is terminated by Company T, as promptly as possible (but in any event within two business days) after such termination or (y) in the event this Agreement is terminated by Company Y, prior to such termination or (ii) by Company T pursuant to Section 8.3(a)8.4, then Company Y shall pay Company T in cash in same-day funds as promptly as possible (but in any event within two business days) after such termination the Company shall promptly, but Termination Fee. The Parties acknowledge and agree that in no event later than two days after shall Company Y be required to pay the date of such termination, pay Parent a termination fee of $12,825,000 (the “No Vote Termination Fee”) by wire transfer of same day funds; provided, however, that Fee or the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; providedon more than one occasion, further, that no whether or not the No Vote Termination Fee shall or the Termination Fee may be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes under more than one provision of this Agreement, an Acquisition Proposal shall not be deemed at the same or at different times or upon the occurrence of different events.
(d) (i) Subject to have been “publicly withdrawn” by any Person ifSection 8.5(f) and Section 9.8, within 12 months Company Y's receipt of such termination, the Termination Fee from Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended T pursuant to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part shall be the sole and exclusive remedy of Company Y and its Subsidiaries against the Company T Related Parties (other than the Company T Voting Shareholders pursuant to the terms of the Company T Voting Agreements) for any loss suffered as a result of any breach of any covenant or agreement or the failure of the Merger to be consummated, and upon payment of such amount, none of the Company T Related Parties (other than the Company T Voting Shareholders pursuant to the terms of the Company T Voting Agreements) shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement and, (ii) subject to Section 8.5(f), Company T's receipt of the No Vote Termination Fee or the Termination Fee from Company Y pursuant to Section 8.5(c) shall be the sole and exclusive remedy of Company T against the Company Y Related Parties (other than the Company Y Voting Shareholders pursuant to the terms of the Company Y Voting Agreements) for any loss suffered as a result of any breach of any covenant or agreement or the failure of the Merger to be consummated, and upon payment of such amount, none of the Company Y Related Parties (other than the Company Y Voting Shareholders pursuant to the terms of the Company Y Voting Agreements) shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails subject to promptly pay any amount due pursuant to this Section 8.5(b8.5(f), and, (A) under no circumstances will Company Y be entitled to monetary damages in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on excess of the amount of the fee at Termination Fee and (B) under no circumstances will Company T be entitled to monetary damages in excess of the prime rate amount of Citibank N.A. in effect on the date such payment was required to be made through No Vote Termination Fee or the date of paymentTermination Fee, as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them shall have any liability of any nature whatsoever hereunder, or Affiliates)in connection with the transactions contemplated hereby, except that Sections 6.4, 6.14 and 9.4 and this Section 8.2 and 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 (i) except as otherwise provided that, notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay to Buyer an amount equal $2,900,000 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.1(e) or Section 8.1(c) due to the failure to obtain the approval of the Company’s shareholders required for the consummation of the Merger, and (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days announced, disclosed or otherwise communicated to the Company Board prior to termination of this Agreement, with respect to termination of this Agreement pursuant to the date specified in Section 8.2(a), or (B8.1(c) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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(aCompany Meeting and (ii) shall have occurred, or within twelve (iii12) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement a definitive agreement with respect to, or the Company shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposedconsummated, an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee.
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(b) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board 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(b) and (ii) within twelve (12) months of such termination, the Company shall have entered into a definitive agreement with respect to, or the Company shall have consummated, an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee.
(e) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be 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 Buyer. No payment of the Termination Fee under this Section 8.2 shall limit in any respect any rights or on behalf remedies available to Buyer relating to any breach or failure of such Person the Company to perform any representation, warranty, covenant or any of its Affiliates. The agreement set forth in this Agreement resulting, directly or indirectly, in the right to receive the Termination Fee under this Section 8.2.
(f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub Buyer would not enter into this Agreement; accordingly. Accordingly, if the Company fails promptly to promptly pay any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Parent or Merger Sub Buyer commences a suit which results in a judgment against the Company for the fee, to which reference is made amount set forth in this Section 8.5(b)8.2, the Company shall pay to Parent or Merger Sub Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentmade.
Appears in 2 contracts
Sources: Merger Agreement (Union Bankshares Co/Me), Merger Agreement (Camden National 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(e) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither SHBI nor TCFC shall be relieved or released from any liabilities or damages to the second sentence of Section 9.1 shall survive the termination other party hereto resulting from any knowing and intentional breach of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have has been made (whether or not conditional) to the Company TCFC or any of its stockholders shareholders or any Person shall have has publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least qualification) and thereafter (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company SHBI pursuant to Section 8.3(a8.01(b), by SHBI or TCFC pursuant to Section 8.01(c) or by SHBI pursuant to Section 8.01(i) and (B) prior to the date that is 12 months after such termination, (1) TCFC or any of its Subsidiaries enters into a binding and definitive agreement with respect to any Acquisition Proposal (an “Acquisition Agreement”) or (2) any Acquisition Proposal is consummated (solely for purposes of this Section 8.02(b)(B), the term “Acquisition Proposal” shall have the meaning set forth in the definition of Acquisition Proposal contained in Section 6.07(a) except that all references to 25% shall be deemed references to 50%), then the Company TCFC shall promptly, but in no event later than two days after the date of such termination, pay Parent to SHBI a termination fee of equal to $12,825,000 10.5 million (the “Termination Fee”) by wire transfer of same next day funds; providedfunds on the earlier of the date of execution of such Acquisition Agreement and the consummation of such Acquisition Proposal. In the event that (i) this Agreement is terminated by SHBI pursuant to Section 8.01(e) or (ii) this Agreement is terminated by TCFC pursuant to Section 8.01(g), howeverthen, that in each such case, TCFC shall pay SHBI the Termination Fee to be paid by wire transfer of same-day funds (x) in the case of a termination by SHBI pursuant to clause Section 8.01(e), within two Business Days after such termination, and (iiiy) shall be paid as set forth in the case of a termination by TCFC pursuant to Section 8.3; provided8.01(g), furtherno later than the time of such termination. If the Termination Fee becomes payable pursuant to the terms of this Agreement, that no payment of the Termination Fee shall be payable to Parent pursuant to clause (i) the sole and exclusive remedy of this Section 8.5(b) unless SHBI against TCFC and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement and their respective Representatives with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders breach of any covenant or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails agreement giving rise to promptly pay any 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 . Notwithstanding anything to the Company for the fee, to which reference is made in this Section 8.5(b)contrary herein, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the maximum aggregate amount of fees, liabilities or damages payable by TCFC under this Agreement shall be equal to the fee at Termination Fee and any amounts payable under Section 8.02(d). In no event shall TCFC be obligated to pay the prime rate of Citibank N.A. in effect Termination Fee on the date such payment was required to be made through the date of paymentmore than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Shore Bancshares Inc), Merger Agreement (Community Financial Corp /Md/)
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 VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that 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 damages to the other party hereto resulting from fraud or any willful or intentional material breach of this Agreement and Agreement; (ii) the provisions set forth in this Section 9.5 and the second sentence of Section 9.1 10.1 shall survive the termination of this Agreement. No ; and (iii) no termination of this Agreement shall be effective unless and until notice affect the obligations of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying parties contained in the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofConfidentiality Agreement.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a9.4(a) (Change of Recommendation) or 8.2(b9.4(b) (Failure to Reaffirm), ;
(ii) (x) before obtaining the Company Requisite Vote, this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.4(a), 9.2(c) (Failure to Obtain Company Requisite Vote) or (B) by the Company Parent pursuant to Section 8.2(b9.4(c) and(Company Breach), on or prior to (y) any Person shall have made an 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 12 months of such termination, the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) Company shall have occurred, or consummated a transaction contemplated by any Acquisition Proposal (substituting in both instances “50%” for “15%” in the definition of “Acquisition Proposal”); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a9.3(b) (Superior Proposal), ; then the Company shall promptly(A) in the case of clause (i) of this Section 9.5(b), but in no event later than two days five Business Days after the date of such termination, (B) in the case of clause (ii) of this Section 9.5(b), on or prior to the date on which the Company consummates the Acquisition Proposal referred to in subclause (ii)(z) of this Section 9.5(b), and (C) in the case of clause (iii) of this Section 9.5(b), prior to or concurrently with, and as a condition to, such termination, pay Parent a termination fee of $12,825,000 18,000,000 (the “Termination Fee”).
(c) by wire transfer of same day funds; provided, however, that If Parent receives and accepts the Termination Fee to be paid pursuant to clause Section 9.5(b) (iii) and the Company shall be paid as set forth in Section 8.3; providedoffer the Parent an opportunity to decline to accept the Termination Fee), further, that no Parent’s receipt of the Termination Fee shall be payable the sole and exclusive remedy of Parent and Merger Sub against the Company and its Representatives for any and all losses and damages suffered in connection with this Agreement or the Transactions or as a result of the failure of the Transactions to be consummated, provided that in the event Parent and Merger Sub fails to deliver written notice to the Company accepting the Termination Fee within five Business Days of the date that the Company delivers written notice to Parent pursuant and Merger Sub of their opportunity to clause (i) of this Section 8.5(b) unless accept the Termination Fee, Parent and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal Merger Sub shall not be deemed entitled to have been “publicly withdrawn” by any Person ifreceive the Termination Fee, within 12 months of and in such terminationcase, Parent’s and Merger Sub’s sole remedy against the Company or and its Representatives shall be damages from the Company for any loss suffered as a direct result of its Subsidiaries shall have entered into an Alternative Acquisition any breach of this Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to by the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b9.5(b) are an integral part of the transactions contemplated by this AgreementTransactions, and that, that without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly. Payment of the Termination Fee, as the case may be, shall be made by wire transfer of immediately available funds if Parent shall have furnished to the Company appropriate wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check. In no event shall the Company be required to pay the Termination Fee more than once. If the Company fails to promptly pay make any amount due pursuant to payment required under this Section 8.5(b)Section, and, in order to obtain such payment, and Parent or Merger Sub commences a suit which to collect such payment that results in a judgment against the Company for the fee, to which reference is made fee set forth in this Section 8.5(b9.5(b), the Company shall pay to indemnify Parent or Merger Sub for its costs fees and expenses (including reasonable attorneys’ feesfees and expenses) incurred in connection with such suit, together with suit and shall pay interest on the amount of the fee payment at the prime rate of Citibank N.A. Bank of America (or its successors or assigns) in effect on the date such the payment was required payable pursuant to be made through the date of paymentthis Section 9.5(b).
Appears in 2 contracts
Sources: Merger Agreement (Optimer Pharmaceuticals Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Effect of Termination and Abandonment. (a) In Any proper termination of this Agreement pursuant to this Article IX shall be effective immediately upon the delivery of written notice of such termination by the terminating Party to the other Party. Except to the extent provided in Section 9.5(b) and Section 9.5(c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates)) and all rights and obligations of any Party shall cease; provided, however, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided herein, no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any willful or intentional breach Willful Breach of this Agreement prior to its termination and (ii) the provisions set forth in Section 7.9, in Section 7.11, in this Section 9.5 and the provisions set forth, or referred to, in the second sentence of Section 9.1 10.1 and Section 10.2(a) (as applicable to such provisions that survive termination as set forth herein) shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is validly terminated
(i) an (A) by either (1) the Company or Parent pursuant to Section 9.2(a) [Outside Date], if at the time of such termination Parent would have been entitled to terminate this Agreement pursuant to Section 9.3(b) and the Parent Termination Fee is not payable pursuant to Section 9.5(c)(ii) or (2) by Parent pursuant to Section 9.3(b) [Company Breach], or Section 9.3(d) [Principal Stockholder Failure to Hold Principal Stockholder Postal Ballot], (B) following the execution and delivery of this Agreement and prior to the termination of this agreement pursuant to Section 9.2(a), Section 9.3(b) or Section 9.3(d), a bona fide Acquisition Proposal shall have has been made to the Principal Stockholder, the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b)Subsidiaries, and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a(C) or 8.2(b), within twelve (ii12) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toto such Acquisition Proposal (with “50%” being substituted in lieu of “20%” in each instance thereof in the definition of “Acquisition Proposal” for purposes of this Section 9.5(b)(i)), then within one (1) Business Day of entering into or consummation of such Alternative Acquisition Agreement, the Company shall have consummated pay the Company Termination Fee to Parent or its designee, in each case by wire transfer of immediately available funds;
(ii) by Parent pursuant to Section 9.3(a) [Company Change of Recommendation] or Section 9.3(c) [Failure to Deliver Written Consent], then within one (1) Business Day of such termination the Company shall have approvedpay the Company Termination Fee to Parent or its designee, adopted in each case by wire transfer of immediately available cash funds;
(iii) by the Company pursuant to Section 9.4(a) [Company Fiduciary Out for Superior Proposal], then concurrently with such termination, the Company shall pay the Company Termination Fee to Parent or recommended its designee, in each case by wire transfer of immediately available cash funds; or
(iv) (A) by Parent pursuant to Section 9.3(d) [Principal Stockholder Failure to Hold Principal Stockholder Postal Ballot] and (B) following the execution and delivery of this Agreement and prior to the Company’s stockholders or otherwise not opposedtermination of this Agreement pursuant to Section 9.3(d), an a bona fide Principal Stockholder Acquisition Proposal has been made by or on behalf of such Person to the Principal Stockholder or any of its Affiliatesrespective Subsidiaries (including the Company) and (C) within twelve (12) months after such termination, the Principal Stockholder shall have entered into a definitive transaction agreement with respect to such Principal Stockholder Acquisition Proposal (with “50%” being substituted in lieu of “20%” in each instance thereof for purposes of this Section 9.5(b)(iv)), then within one (1) Business Day entering into or consummation of such definitive transaction agreement in connection with such Principal Stockholder Acquisition Proposal, the Company shall pay the Company Termination Fee to Parent or its designee, in each case by wire transfer of immediately available funds. 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 validly terminated (i) by the Company pursuant to Section 9.4(b) [Parent or Merger Sub Breach] or Section 9.4(c) [Parent or Merger Sub Failure to Close], or (ii) by the Company or Parent pursuant to Section 9.2(a) [Outside Date], if, in the case of this clause (ii) at the time of termination the Company would have been entitled to terminate this Agreement pursuant to Section 9.4(b) or Section 9.4(c), then promptly, but in no event later than two (2) Business Days after the date of such termination, Parent shall pay the Parent Termination Fee to the Company by wire transfer of immediately available cash funds. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(i) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement; accordingly. Notwithstanding anything in this Agreement to the contrary, if the Parties hereby acknowledge and agree that (A) in the event that the Company Termination Fee or the Parent Expenses becomes payable by, and is paid by, the Company pursuant to Section 9.5(b) or Section 9.6, as applicable, the Company Termination Fee or the Parent Expenses (in the event that the Company Termination Fee does not become payable pursuant to Section 9.5(b)(i) or Section 9.5(b)(iv)), as applicable, shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages of any kind, including consequential, special, indirect or punitive damages, in any case pursuant to this Agreement, any agreement executed in connection herewith and the transaction contemplated herby and thereby, the termination of this Agreement, the failure to consummate the Merger or any claims or actions under applicable Law arising out of any breach, termination or failure and (B) in the event that the Parent Termination Fee becomes payable by, and is paid by, Parent and accepted by the Company pursuant to Section 9.5(c), such fee shall be the Company’s sole and exclusive remedy for monetary damages of any kind, including consequential, special, indirect or punitive damages pursuant to this Agreement, any agreement executed in connection herewith and the transaction contemplated herby and thereby, the termination of this Agreement, the failure to consummate the Merger or any claims or actions under applicable Law arising out of any breach, termination or failure.
(ii) If the Company fails to promptly pay any the amounts due pursuant to Section 9.5(b) or Section 9.6, or Parent fails to promptly pay the amount due pursuant to this Section 8.5(b9.5(c), and, in order to obtain such payment, Parent or Merger Sub the other party commences a suit which against the Party obligated to make such payment (the “Payor”) that results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b)Payor, the Company Payor shall pay to Parent or Merger Sub the other party its reasonable and documented out of pocket costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee such amount or portion thereof at the U.S. prime rate as shown at the end of Citibank N.A. in effect the trading day on Bloomberg screen BTMM or PRIME INDEX HP, whichever is higher, on the date such payment was required to be made through the date of payment; provided, that such amounts shall not exceed collectively $1,000,000.
(iii) Notwithstanding anything herein to the contrary, the Company expressly acknowledges and agrees that: (i) in light of the difficulty of accurately determining actual damages with respect to the foregoing, upon any such termination of this Agreement, the payment of the Parent Termination Fee pursuant to Section 9.5(c), which constitutes a reasonable estimate of the monetary damages that will be suffered by the Company by reason of breach or termination of this Agreement, shall be in full and complete satisfaction of any and all monetary damages of the Company arising out of or related to this Agreement, the Merger or the other Transactions (including any breach of this Agreement), the termination of this Agreement, the failure to consummate the Merger or the other Transactions, and any claims or actions under applicable Law arising out of any such breach, termination or failure; and (ii) in no event shall the Company be entitled to seek or obtain any recovery or judgment (including any consequential, special, indirect or punitive damages) in excess of an amount equal to the Parent Termination Fee (plus, in the case the Parent Termination Fee is not timely paid, the amounts described in Section 9.5(d)(ii)) against Parent, Merger Sub, its Subsidiaries, the Guarantors or any of their respective former, current or future stockholders, directors, officers, employees, Affiliates, agents, other Representatives or the Debt Financing Sources or any of their respective assets; provided, however, that this Section 9.5(d)(iii) shall not limit the right of the Company to specific performance of this Agreement pursuant to Section 10.6 prior to the termination of this Agreement in accordance with its terms.
(iv) Nothing in this Section 9.5 shall limit or otherwise restrict the rights and remedies of the Company under Section 10.6.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Majesco), Merger Agreement (Majesco)
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, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, provided that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of this Section 8.5, Section 6.9 (Public Announcements), Section 6.17 (Expenses), Section 9.1 (Non-Survival of Representations, Warranties, Covenants and Agreements), Section 9.4 (Notices), Section 9.6 (Entire Agreement; Assignment), Section 9.7 (Parties in Interest), and Section 9.8 (Governing Law and Arbitration), the Confidentiality Agreement and the Guaranty (to the extent set forth therein) shall survive the termination of this Agreement. No termination Agreement and abandonment of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party Merger pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofARTICLE VIII.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or Section 8.2(b), (B) an Acquisition Proposal, whether or not conditional, shall have been made public and not withdrawn prior to the termination of this Agreement pursuant to Section 8.2(a) 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 date that is twelve months following the termination of this Agreement, the Company enters into, agrees to or consummates an Acquisition Proposal (whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in the preceding clause (A)) (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 (A) by Parent pursuant to Section 8.4(a) or Section 8.4(b), or (B) 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) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 2 contracts
Sources: Merger Agreement (Ninetowns Internet Technology Group Co LTD), Merger Agreement (Wang Shuang)
Effect of Termination and Abandonment. Except as provided in paragraphs (a) In and (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall 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 Representatives future, current or Affiliatesformer Affiliates or Representatives); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall will relieve any party hereto of its obligation to pay the Termination Fee, the Reverse Termination Fee or the expense obligations pursuant to Section 8.5(b) or any liability or damages to any other party hereto resulting from any willful or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 8.5, the last sentence of Section 6.14 and the second sentence of Section 9.1 shall will survive the termination of this Agreement. No termination of .
(a) If this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party is terminated:
(i) pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.8.3(a);
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a) or Section 8.4(b), or ; or
(Biii) by the Company pursuant to Section 8.2(b8.2 or Section 8.4(c), and (A) and, on or after the date of this Agreement and prior to the date of the Stockholders Meetingtermination of this Agreement, any event giving rise Person will have made or publicly disclosed or announced a bona fide Acquisition Proposal and such Acquisition Proposal has not been publicly and unconditionally withdrawn prior to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 and (the “Termination Fee”B) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months after termination of such termination this Agreement, the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or Seller Board shall have approved or recommended any Acquisition Proposal, and Seller will have entered into a definitive agreement with respect to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” provided that, solely for purposes of this clause and (B), the references to “20%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”); provided that for purposes , then Seller will pay Buyer, by wire transfer of this Agreementimmediately available funds, an amount equal to the Applicable Amount (the “Termination Fee”), (x) in the case of clause (a)(i) above, simultaneous with such termination, (y) in the case of clause (a)(ii) above, within two Business Day of such termination, and (z) in the case of clause (a)(iii) above, within two Business Days of the date the definitive agreement with respect to the Acquisition Proposal Proposal; provided, that in no event shall not Seller be required to pay the Termination Fee on more than one occasion.
(b) If this Agreement is terminated pursuant to Section 8.3(c), then Buyer shall pay to Seller, by wire transfer of immediately available funds, the amount of $3,000,000 less any Bridge Loans (which shall be deemed to have been repaid in full by Seller), if applicable, (the “publicly withdrawn” by any Person ifReverse Termination Fee”) in the case of termination pursuant to Section 8.3(c), within 12 months two Business Days following such termination; provided, that in no event shall Buyer be required to pay the Reverse Termination Fee on more than one occasion.
(c) Without limiting any rights of Seller under Section 9.5(c) prior to the termination of this Agreement pursuant to Article VIII, if this Agreement is terminated under circumstances in which Buyer is obligated to pay the Reverse Termination Fee pursuant to Section 8.5(b), upon payment of the Reverse Termination Fee, neither Buyer, nor any of its Affiliates shall have any further liability to Seller, its Subsidiaries, holders of Shares and any of their Affiliates with respect to this Agreement or the Transactions, and payment of the Reverse Termination Fee shall be the sole and exclusive remedy for any claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, suffered or incurred by Seller, its Subsidiaries, or any other Person in connection with this Agreement, the Transactions (and the termination thereof) or any matter forming the basis for such termination, the Company and Seller shall not have, and expressly waives and relinquishes, any other right, remedy or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect torecourse (whether in contract or in tort or otherwise, or shall have consummated whether at law (including at common law or shall have approvedby statute) or in equity); provided that, adopted regardless of whether Buyer pays or recommended is obligated to pay the Company’s stockholders or otherwise not opposedReverse Termination Fee as a result of a termination of this Agreement pursuant to Section 8.4(d), an Acquisition Proposal made nothing in this Section 8.5(c) will release Buyer from liability for a termination of this Agreement pursuant to Section 8.4(d) that was the result of a Willful Breach of this Agreement by or on behalf of such Person or any of its Affiliates. Buyer.
(d) The Company acknowledges Parties each acknowledge that the agreements contained in this Section 8.5(b) 8.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub the Parties would not enter have entered into this Agreement; accordingly, if and that any amounts payable pursuant to Section 8.5(a) or Section 8.5(b) do not constitute a penalty but constitute payment of liquidated damages and that each of the Company respective liquidated damages amounts is reasonable in light of the substantial but indeterminate harm anticipated to be caused by the other party’s breach or default under this Agreement, the difficulty of proof of loss of damages, the inconvenience and non-feasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated thereunder. If either party fails to promptly pay when due any amount due payable pursuant to this Section 8.5(a) or Section 8.5(b), andthen (i) such party will reimburse the other party for all fees, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ legal fees) incurred in connection with any action taken to collect payment and in connection with the enforcement by the other party of its rights under Section 8.5(a) or Section 8.5(b), as applicable, and (ii) such suit, together with party will pay to the other party interest on the overdue amount (for the period commencing as of the fee date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to such other party in full) at a rate per annum equal to the “prime rate of Citibank N.A. rate” (as published in The Wall Street Journal) in effect on the date such payment overdue amount was originally required to be made through the date of paymentpaid.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Alliqua BioMedical, Inc.)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 9.5(b), Section 9.5(c) and Section 9.5(d), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, that that, notwithstanding anything in this Agreement to the contrary, (i) except as otherwise provided herein, no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any willful fraud or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in Article X (Miscellaneous and General), Section 7.13 (Expenses), this Section 9.5 (Effect of Termination and Abandonment) and the second sentence of Section 9.1 Confidentiality Agreement shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated:
(i) an by either Crown or King pursuant to Section 9.2(a) (Outside Date) or Section 9.2(c)(i) (Requisite Crown Vote Not Obtained) or by King pursuant to Section 9.3(b) (Crown Terminable Breach) and, in any such case:
(A) a bona fide Acquisition Proposal with respect to Crown shall have been publicly made directly to the Company stockholders of Crown or any of its stockholders shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company Crown (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least five (A5) 10 business days Business Days prior to (i) the date of such termination, with respect to any termination pursuant to Section 9.2(a) (Outside Date) or Section 9.3(b) (Crown Terminable Breach) or (ii) the date of this Agreementthe Crown Stockholders Meeting, with respect to termination of this Agreement pursuant to Section 8.2(a9.2(c)(i) (Requisite Crown Vote Not Obtained), or ); and
(B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(awithin twelve (12) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”1) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company Crown or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toto any Acquisition Proposal with respect to Crown or (2) there shall have been consummated any Acquisition Proposal with respect to Crown (in each case of clauses (1) and (2), with fifty percent (50%) being substituted in lieu of twenty percent (20%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2);
(ii) by King pursuant to Section 9.3(a) (Crown Change of Recommendation), then promptly, but in no event later than two (2) Business Days after the date of such termination; or
(iii) by either King or Crown pursuant to Section 9.2(c)(i) (Requisite Crown Vote Not Obtained) (and, at the time of such termination pursuant to Section 9.2(c)(i) (Requisite Crown Vote Not Obtained), King had the right to terminate this Agreement pursuant to Section 9.3(a) (Crown Change of Recommendation)), then promptly, but in no event later than, in the case of such termination by King, two (2) Business Days or, in the case of such termination by Crown, one (1) Business Day after the date of such termination; Crown shall, in the case of Section 9.5(b)(i), Section 9.5(b)(ii) or Section 9.5(b)(iii), pay the Crown Termination Fee to King or its designee by wire transfer of immediately available cash funds. In no event shall Crown be required to pay the Crown Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated:
(i) by either Crown or King pursuant to Section 9.2(a) (Outside Date) or Section 9.2(c)(ii) (Requisite King Vote Not Obtained) or by Crown pursuant to Section 9.4(b) (King Terminable Breach) and, in either case;
(A) a bona fide Acquisition Proposal with respect to King shall have been publicly made directly to the stockholders of King or shall otherwise have consummated become publicly known or any Person shall have approved, adopted publicly announced an intention (whether or recommended not conditional) to the Company’s stockholders or otherwise not opposed, make an Acquisition Proposal made by with respect to King (and such Acquisition Proposal or on behalf publicly announced intention shall not have been publicly withdrawn without qualification five (5) Business Days prior to (i) the date of such Person termination, with respect to any termination pursuant to Section 9.2(a) (Outside Date) or Section 9.4(b) (King Terminable Breach) or (ii) the date of the King Stockholders Meeting, with respect to termination pursuant to Section 9.2(c)(ii) (Requisite King Vote Not Obtained)); and
(B) within twelve (12) months after such termination, (1) King or any of its AffiliatesSubsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal with respect to King or (2) there shall have been consummated any Acquisition Proposal with respect to King (in each case of clauses (1) and (2), with fifty percent (50%) being substituted in lieu of twenty percent (20%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2);
(ii) by Crown pursuant to Section 9.4(a) (King Change of Recommendation), then promptly, but in no event later than two (2) Business Days after the date of such termination; or
(iii) by either King or Crown pursuant to Section 9.2(c)(ii) (Requisite King Vote Not Obtained) (and, at the time of such termination pursuant to Section 9.2(c)(ii) (Requisite King Vote Not Obtained), Crown had the right to terminate this Agreement pursuant to Section 9.4(a) (King Change of Recommendation)), then promptly, but in no event later than, in the case of such termination by Crown, two (2) Business Days or, in the case of such termination by King, one (1) Business Day after the date of such termination; King shall, in the case of Section 9.5(c)(i), Section 9.5(c)(ii) or Section 9.5(c)(iii), pay the King Termination Fee to Crown or its designee by wire transfer of immediately available cash funds. In no event shall King be required to pay the King Termination Fee on more than one occasion.
(d) In the event that this Agreement is terminated:
(i) by either Crown or King pursuant to Section 9.2(c)(i) (Requisite Crown Vote Not Obtained), then promptly, but in no event later than, in the case of such termination by King, three (3) Business Days or, in the case of such termination by Crown, one (1) Business Day after the date of such termination, Crown shall pay all of the documented out-of-pocket costs, fees and expenses of counsel, accountants, financial advisors and other experts and advisors as well as fees and expenses incident to negotiation, preparation and execution of this Agreement and related documentation and stockholders’ meetings and consents (collectively, “Costs”) of King up to a maximum amount equal to $7.5 million (the “Expense Amount”), to King or its designee by wire transfer of immediately available cash funds; provided, that any amounts paid under this Section 9.5(d)(i) shall be credited (without interest) against any Crown Termination Fee if paid to King (or its designee) pursuant to the terms of this Agreement;
(ii) by either Crown or King pursuant to Section 9.2(c)(ii) (Requisite King Vote Not Obtained), then promptly, but in no event later than, in the case of such termination by Crown, three (3) Business Days or, in the case of such termination by King, one (1) Business Day after the date of such termination, King shall pay all of the documented out-of-pocket Costs of Crown up to the Expense Amount to Crown or its designee by wire transfer of immediately available cash funds; provided, that any amounts paid under this Section 9.5(d)(ii) shall be credited (without interest) against any King Termination Fee if paid to Crown (or its designee) pursuant to the terms of this Agreement;
(iii) by King pursuant to Section 9.3(b) (Crown Terminable Breach), then promptly, but in no event later than, three (3) Business Days after the date of such termination, Crown shall pay all of the documented out-of-pocket Costs of King up to the Expense Amount to King or its designee by wire transfer of immediately available cash funds; provided, that any amounts paid under this Section 9.5(d)(iii) shall be credited (without interest) against any Crown Termination Fee if paid to King (or its designee) pursuant to the terms of this Agreement; and
(iv) by Crown pursuant to Section 9.4(b) (King Terminable Breach), then promptly, but in no event later than, three (3) Business Days after the date of such termination, King shall pay all of the documented out-of-pocket Costs of Crown up to the Expense Amount to Crown or its designee by wire transfer of immediately available cash funds; provided, that any amounts paid under this Section 9.5(d)(iv) shall be credited (without interest) against any King Termination Fee if paid to Crown (or its designee) pursuant to the terms of this Agreement.
(e) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub the other Parties would not enter into this Agreement; accordingly, if the Company Crown or King, as applicable, fails to promptly pay any the amount due pursuant to this Section 8.5(b)9.5, and, in order to obtain such payment, Parent King or Merger Sub Crown, as applicable, commences a suit which that results in a judgment against the Company Crown or King, as applicable, for the fee, to which reference is made fees set forth in this Section 8.5(b)9.5 or any portion of such fees, the Company such paying Party shall pay to Parent or Merger Sub the other Party its costs and expenses (including reasonable attorneys’ fees, costs and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. as published by The Wall Street Journal (in effect on the date such payment was required to be made) from the date such payment was required to be made through the date of payment. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that in the event that the Crown Termination Fee or the King Termination Fee, as applicable, becomes payable by, and is paid by, Crown or becomes payable by, and is paid by, King, as applicable, such fee shall be the receiving Party’s sole and exclusive remedy for damages against the other Parties and their respective former, current or future stockholders, directors, officers, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement set forth in this Agreement or the failure of the Transactions to be consummated; provided, however, that no such payment shall relieve any Party of any liability or damages to any other Party resulting from any fraud or Willful Breach of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (C&J Energy Services, Inc.), Merger Agreement (Keane 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 VIII7, this Agreement (other than as set forth in this Section 7.5 and Section 8.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives directors, officers, employees, agents, legal or Affiliatesfinancial advisors or other representatives); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive obligation to pay, if applicable, the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party fee pursuant to Section 9.6, specifying the provision 7.5(b) or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof7.5(c).
(b) In If the event that Merger is not consummated and
(i) at a meeting of the shareholders of Percon duly convened therefor and at any adjournment or postponement thereof, this Agreement shall have failed to receive the Percon Requisite Shareholder Vote and within twelve (12) months after the date hereof Percon shall have entered into an agreement to consummate or has consummated a transaction that would constitute a Percon Acquisition Proposal shall have been made to if it were the Company or any subject of its stockholders or any Person shall have publicly announced a proposal (other than an intention (whether or not conditional) to make an Excluded Percon Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(aProposal), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), or
(ii) this Agreement is terminated by Percon pursuant to Section 7.3(a), or
(iii) prior to the termination of this Agreement, (A) the Board of Directors of Percon shall have withdrawn or adversely modified its approval or recommendation to Percon's shareholders of this Agreement, failed to include such recommendation in the Proxy Statement or failed to reconfirm such recommendation within five (5) business days after a written request by Parent pursuant PSC to do so, (B) Percon's board of directors shall have approved or publicly recommended any Percon Acquisition Proposal, (C) Percon shall have entered into any letter of intent or any Contract accepting a Percon Acquisition Proposal, (D) if Percon or any Percon Representative shall violate Section 8.4(a5.8(b) or shall take any of the actions that would be proscribed by Section 5.8(a), or (BE) by the Company pursuant to Section 8.2(b) and, on a tender offer or exchange offer for outstanding shares of capital stock of Percon is commenced prior to the date Effective Time and the Board of the Stockholders MeetingDirectors of Percon fails to recommend against acceptance of such tender offer or exchange offer by Percon's shareholders, any event giving rise to Parent’s right to terminate under Section 8.4(aor
(iv) shall have occurred, or (iii) there has been a willful and intentional breach of this Agreement is terminated by on the Company pursuant to Section 8.3(a)part of Percon, then the Company Percon shall promptly, but in no event later than two days after (I) if the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be is payable to Parent other than pursuant to clause (i) to this Section 7.5(b), two (2) days after the date of termination of this Agreement or (II) if the fee is payable pursuant to clause (i) to this Section 8.5(b) unless and until within 12 months 7.5(b), the earlier of such termination the Company shall have entered date Percon enters into an Alternate Acquisition Agreement with respect to, agreement to consummate or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “date Percon consummates a transaction that would constitute a Percon Acquisition Proposal”, pay PSC Two Million Dollars ($2,000,000) plus the out-of-pocket expenses PSC has incurred in connection with the transactions contemplated hereby (not to exceed Four Hundred Thousand Dollars ($400,000); provided that for purposes ), payable by wire transfer of immediately available funds. Notwithstanding the foregoing, no such fee shall be payable if PSC has breached this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by Agreement in any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliatesmaterial respect. The Company Percon acknowledges that the agreements contained in this Section 8.5(b7.5(b) are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent PSC and Merger Sub Newco would not enter into this Agreement; accordingly, if the Company Percon fails to pay promptly pay any the amount due pursuant to this Section 8.5(b), 7.5(b) and, in order to obtain such payment, Parent PSC or Merger Sub Newco commences a suit which that results in a judgment against the Company Percon for the fee, to which reference is made fee set forth in this Section 8.5(bsubsection (b), the Company then Percon shall pay to Parent or Merger Sub its PSC and Newco their 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. Chase in effect on the date such payment was required to be made through made.
(c) If the Merger is not consummated and there has been a willful and intentional breach of this Agreement on the part of PSC, then PSC shall promptly, but in no event later than two (2) days after the date of termination of this Agreement, pay Percon One Million Dollars ($1,000,000) plus the out-of-pocket expenses Percon has incurred in connection with the transactions contemplated hereby (not to exceed Four Hundred Thousand Dollars ($400,000)), payable by wire transfer of immediately available funds. Notwithstanding the foregoing, no such fee shall be payable if Percon has breached this Agreement in any material respect or if any other condition to the obligations of PSC and Newco set forth in Section 6.1 has not been satisfied. PSC acknowledges that the agreements contained in this Section 7.5(c) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Percon would not enter into this Agreement; accordingly, if PSC fails to pay promptly the amount due pursuant to this Section 7.5(c) and, in order to obtain such payment, Percon commences a suit that results in a judgment against PSC for the fee set forth in this subsection (c), then PSC shall pay to Percon 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 Chase in effect on the date such payment was required to be made.
Appears in 2 contracts
Sources: Merger Agreement (PSC Inc), Merger Agreement (PSC 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, this Agreement shall become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of (A) any liability or damages resulting from any willful or intentional breach of this Agreement Agreement, or any breach of section 6.17, regardless of whether willful or intentional, or (B) the obligation to make any payments pursuant to Section 8.5(b) and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders 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 the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days twenty (20) Business Days prior to termination of this Agreementto, with respect to any termination of this Agreement pursuant to Section 8.2(a), or the date of termination, and (B) at least five business days (5) Business Days prior to termination of this Agreementto, with respect to termination of this Agreement pursuant to Section 8.2(b), the date of the Shareholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a8.4(a)(i) or (iii), (B) by Parent pursuant to Section 8.4(a)(ii), or (BC) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Shareholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 in an amount equal to $12,825,000 3,250,000.00 (the “Termination FeeAmount”) by wire transfer of same day funds; (provided, however, that the Termination Fee Amount to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; ), provided, furtherhowever, that no Termination Fee Amount shall be payable to Parent pursuant to clause (i) or clause (ii)(B) of this Section 8.5(bparagraph (b) unless and until within 12 twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders shareholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders shareholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, charges or expenses to which reference is made in this Section 8.5(bparagraph (b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through made. Notwithstanding anything to the date of paymentcontrary 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 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Compex Technologies 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, this Agreement (other than as set forth in Sections 6.12, 6.13 and 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives directors, officers or Affiliatesother Representatives); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth any covenant in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an a bona fide Acquisition Proposal (but substituting 40% for the 15% threshold set forth in the definition thereof (a “Covered Proposal”)) shall have been made to the Company or any of its stockholders Subsidiaries or its shareholders and shall have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition a Covered Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Covered Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (Athe time of the Shareholders Meeting) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a8.2(b) or 8.2(bby Parent pursuant to Section 8.4(c), (ii) this Agreement is terminated by Parent (A) by Parent pursuant to Section 8.4(a) and, at the time of the withdrawal, modification or qualification of the adoption of this Agreement or the Directors’ Recommendation (or the agreement to do so), a Covered Proposal (or any bona fide indication of interest that is reasonably capable of becoming a Covered Proposal) shall have been made to the Company or any of its Subsidiaries or its shareholders, directly or indirectly through any Representatives of the Company, or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal with respect to the Company or any of its Subsidiaries or (B) by the Company pursuant to Section 8.2(b8.4(d) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to clause (i) of Section 8.3(a)8.3, 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3), pay Parent a termination fee of $560,000,000 (the “Termination Fee”) and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the documented out-of-pocket expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $40,000,000, in each case payable by wire transfer of same day funds; provided, furtherhowever, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until (I) any Person (other than Parent) (an “Acquiring Party”) has acquired, by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or any series of related transactions within 12 15 months of such termination termination, a majority of the voting power of the outstanding securities of the Company or all or substantially all of the assets of the Company or shall have entered into an Alternate Acquisition Agreement agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, Company for such an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, acquisition within 12 15 months of such terminationtermination or (II) there has been consummated a merger, consolidation or similar business combination between the Company or any one of its Subsidiaries shall have entered into and an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of Acquiring Party within such Person or any of its Affiliates15 month period. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, charges or expenses to which reference is made in this Section 8.5(bparagraph (b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank Citibank, N.A. in effect on the date such payment was required to be made through made. Notwithstanding anything to the date of paymentcontrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee and/or out-of-pocket expenses become payable and are paid by the Company pursuant to this Section 8.5(b), the Termination Fee and out-of-pocket expenses shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (SBC Communications Inc), Merger Agreement (At&t Corp)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 8.2(b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that and notwithstanding anything in the foregoing to the contrary in this Agreement, (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional and material breach of this Agreement and (ii) the provisions set forth in this Section 8.2 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated:
(i) an by either the Company or Parent pursuant to Section 8.1(b) or Section 8.1(c)(i), and, in each case,
(A) a bona fide Acquisition Proposal shall have been made to the Company or any of and its stockholders generally (whether or not conditional) or any Person shall have publicly announced an intention to make an Acquisition Proposal (whether or not conditional) to make an Acquisition Proposal with respect to the Company (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn on a bona fide basis without qualification (1) at least (A) 10 business days ten Business Days prior to termination the date of this Agreementtermination, with respect to any termination of this Agreement pursuant to Section 8.2(a8.1(b), or (B2) at least five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or Business Days prior to the date of the Stockholders Company Shareholders Meeting, any event giving rise with respect to Parent’s right termination pursuant to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.1(c)(i)), then the Company shall promptly, but in no event later than two days and
(B) within twelve months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”1) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders shareholders or otherwise not opposed, an Acquisition Proposal, which Acquisition Proposal is subsequently consummated (substituting even if such consummation occurs after such twelve month period) or (2) there shall have been consummated an Acquisition Proposal with respect to the Company (where, for purposes of clause (A) of the definition of Acquisition Proposal, the shareholders of the Company immediately preceding such transaction hold less than 50% of the equity interests in the surviving or resulting entity of such transaction and with “50%” for being substituted in lieu of “2015%” in each instance thereof in clause (B) the definition of “Acquisition Proposal”” for this purpose); provided that for purposes of this Agreement, an Acquisition Proposal with respect to the Company shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 twelve months of such terminationa termination pursuant to Section 8.1(b) or Section 8.1(c)(i), the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted approved or recommended to the Company’s stockholders shareholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates, then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2), or
(ii) by Parent pursuant to Section 8.1(f) then promptly, but in no event later than one Business Day after the date of termination pursuant to 8.1(f) or the occurrence of either of the events described in the foregoing clauses (b)(i)(B)(1) or (b)(i)(B)(2), the Company shall pay a termination fee of $5,000,000 (the “Termination Fee”), to Parent by wire transfer of immediately available cash funds. In no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the other parties would not enter into this Agreement; accordingly, if the Company fails to promptly pay any the amount due pursuant to this Section 8.5(b)8.2, and, in order to obtain such payment, Parent or Merger Sub commences a suit which that results in a judgment against the Company for the fee, to which reference is made fees or expenses set forth in this Section 8.5(b)8.2 or any portion of thereof, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. as published in The Wall Street Journal (Northeast 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) Except as provided in Section 8.2(a), the parties acknowledge that the payment of the Termination Fee pursuant to this Section 8.2(b) is not a penalty and shall constitute liquidated damages as a reasonable amount that will compensate Parent in the circumstances upon which the Termination Fee is payable for the efforts and resources expended and opportunity foregone with respect to the consummation of the transactions contemplated by this Agreement which would otherwise be impossible to calculate with precision, and, from and after such payment of the Termination Fee, the Company shall have no further liability or obligations of any kind in connection with this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (FBR & Co.), Merger Agreement (B. Riley Financial, 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, neither party to this Agreement shall become void and of no effect with no have any liability on or further obligation to the part of any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(f) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither Plumas nor Cornerstone shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The Parties agree that Cornerstone shall pay Plumas the sum of $2,528,000 (the “Termination Fee”) as follows:
(i) if this Agreement is terminated by Plumas pursuant to Section 8.01(f) (Failure to Recommend, Etc.) or Section 8.01(g) (Certain Tender or Exchange Offers),Cornerstone shall pay the Termination Fee to Plumas on the second sentence of Section 9.1 shall survive (2nd) Business Day following the termination of this Agreement. No ;
(ii) if this Agreement is terminated by Cornerstone pursuant to Section 8.01(h) (Superior Proposal), Cornerstone shall pay the Termination Fee to Plumas on the date of the termination of this Agreement; or
(iii) if this Agreement shall be effective unless is terminated by (A) Plumas pursuant to Section 8.01(b) (Breach), (B) by either Plumas or Cornerstone pursuant to Section 8.01(c) (Delay) and until notice at the time of such termination the Cornerstone Shareholder Approval shall not have been given obtained, or (C) by the terminating party Plumas or Cornerstone pursuant to Section 9.68.01(e) (No Shareholder Approval), specifying and in the provision or provisions case of Section 8.1, 8.2, 8.3 or 8.4 any termination pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement clause (A), (B) or receive any notice thereof.
(b) In the event that (i) C), an Acquisition Proposal shall have been publicly announced and communicated or made known to the Company executive officers of Cornerstone or any of its stockholders the Cornerstone Board (or any Person shall have publicly announced and communicated or made known an intention (intention, whether or not conditional) , to make an Acquisition Proposal with respect Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination date of this Agreement pursuant and prior to Section 8.2(athe taking of the vote of the shareholders of Cornerstone contemplated by this Agreement at the Cornerstone Meeting, in the case of clause (C), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of termination, in the Stockholders Meetingcase of clause (A) or (B), then (1) if within twelve (12) months after such termination Cornerstone enters into an agreement with respect to a Control Transaction, then Cornerstone shall pay to Plumas the Termination Fee on the date of execution of such agreement and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with Cornerstone within twelve (12) months after such termination, then Cornerstone shall pay to Plumas the Termination Fee on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “Control Transaction” means (i) the acquisition by any event giving rise to Parent’s right to terminate under Section 8.4(aPerson whether by purchase, merger, consolidation, sale, transfer or otherwise, in one transaction or any series of transactions, of a majority of the voting power of the outstanding securities of Cornerstone or Cornerstone Bank or a majority of the assets of Cornerstone or Cornerstone Bank, (ii) shall have occurred, any issuance of securities resulting in the ownership by any Person of more than twenty-five percent (25%) of the voting power of Cornerstone or by any Person other than Cornerstone or Cornerstone Bank of more than ten percent (10%) of the voting power of Cornerstone Bank or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a)any merger, 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, consolidation or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company other business combination transaction involving Cornerstone or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toas a result of which the shareholders of Cornerstone cease to own, or shall have consummated or shall have approvedin the aggregate, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(bat least fifty percent (50%) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if total voting power of the Company fails to promptly pay any entity surviving or resulting from such transaction. Any amount due that becomes payable pursuant to this Section 8.5(b)8.02(b) shall be paid by wire transfer of immediately available funds to an account designated by Plumas. Under no circumstances shall Cornerstone be obligated to pay the Termination Fee on more than one occasion, and, and the Parties hereby acknowledge and agree that in order the event the Termination Fee becomes payable and is paid by Cornerstone pursuant to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b)8.02, the Company Termination Fee shall pay to Parent or Merger Sub its costs be Plumas’s sole and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentexclusive remedy under this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Plumas Bancorp), Agreement and Plan of Merger and Reorganization (Plumas Bancorp)
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) this Section 8.02, Section 6.06(d) and Article IX (except as otherwise provided herein, no such for Section 9.12) shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither Opus, Merger Sub, CFC nor Cascade Bank shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee shall in all events constitute the sole and exclusive compensation and remedy of Opus in the event the Transaction is not consummated as a result of or related to be paid a termination of this Agreement by Opus pursuant to Section 8.01(f) or (g) or CFC pursuant to Section 8.01(h).
(b) The parties hereto agree that CFC shall pay Opus $2.25 million (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by Opus pursuant to Section 8.01(h), CFC shall not later than concurrent with such termination, pay the Termination Fee to Opus; or
(ii) if this Agreement is terminated by Opus pursuant to Section 8.01(f) or (g), CFC shall pay the Termination Fee to Opus on the second Business Day following the termination of this Agreement; or
(iii) if this Agreement is terminated by (A) Opus pursuant to Section 8.01(b), (B) by either Opus or CFC or Cascade Bank pursuant to Section 8.01(c) and at the time of such termination no vote of the CFC stockholders contemplated by this Agreement at the CFC Meeting shall have occurred, or (C) by either Opus or CFC pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been publicly announced or otherwise communicated or made known to the senior management of CFC or Cascade Bank or the CFC Board or the Cascade Bank Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of CFC contemplated by this Agreement at the CFC Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 15 months after such termination CFC or Cascade Bank enters into an agreement with respect to a Control Transaction, then CFC shall pay to Opus an amount equal to two-thirds of the Termination Fee on the date of execution of such agreement and upon consummation of any such Control Transaction at any time thereafter, CFC shall pay to Opus the remainder of the Termination Fee on the date of such consummation and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with CFC or Cascade Bank within 18 months after such termination, then CFC shall pay to Opus the Termination Fee (less any amount previously paid by CFC pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “publicly withdrawnControl Transaction” means (i) the acquisition by any Person ifwhether by purchase, within 12 months merger, consolidation, sale, transfer or otherwise, in one transaction or any series of such terminationtransactions, of a majority of the Company voting power of the outstanding securities of CFC or Cascade Bank or a majority of the assets or CFC or Cascade Bank, (ii) any issuance of securities resulting in the ownership by any Person of more than 50% of the voting power of CFC or by any Person other than CFC or its Subsidiaries of more than 50% of the voting power of Cascade Bank or (iii) any merger, consolidation or other business combination transaction involving CFC or any of its Subsidiaries as a result of which the stockholders of CFC cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition account designated by Opus.
(c) If CFC fails to pay Opus the amounts due under paragraph (b) above within the time periods specified in such paragraph (b), CFC shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Opus in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, provided Opus prevails on the merits, 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.
(d) If this Agreement with respect tois terminated by either CFC or Cascade Bank on the one hand or Opus on the other hand due to a breach of a representation, warranty, covenant or undertaking by the other party or parties, the breaching party or parties shall have consummated or be liable for and shall have approved, adopted or recommended promptly pay to the Company’s stockholders non-breaching party or otherwise not opposedparties upon written demand $1.5 million (the “Liquidated Damages Amount”), without prejudice to any other rights or remedies as may be available to Opus under Section 8.02(b) above, provided however that to the extent Opus is entitled to be paid both the Liquidated Damages Amount set forth in this Section 8.02(d) as well as the Termination Fee set forth in Section 8.02(b) above, in no event will the amount payable to Opus pursuant to Section 8.02(b) and this Section 8.02(d) exceed $2.25 million. Any amount that becomes payable pursuant to this Section 8.02(d) shall be paid by wire transfer of immediately available funds to an Acquisition Proposal made account designated by the non-breaching party or on behalf parties. If the breaching party or parties fails to pay the non-breaching party or parties the amounts due under this paragraph (d), the breaching party or parties shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by the non-breaching party or parties in connection with any action, including the filing of any lawsuit, taken to collect payment of such Person amounts, provided the non-breaching party or parties prevail on the merits, 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 its Affiliates. actual payment.
(e) The Company acknowledges parties agree that the agreements contained in this Section 8.5(bSections 8.02(b) and 8.02(d) above are an integral part parts of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreements neither party would not enter have entered into this 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 or Merger Sub commences and constitute liquidated damages and not a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentpenalty.
Appears in 1 contract
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 pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the last sentence of Section 6.15(a), this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an (A) this Agreement is terminated (1) by either the Company or Parent pursuant to Section 8.2(a) or Section 8.2(b), or (2) by Parent pursuant to Section 8.4(d), (B) 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 have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (x) at least thirty (A30) 10 business days prior to termination the date of this Agreementtermination, with respect to any termination of this Agreement pursuant to Section 8.2(a), or and (By) five at least ten (10) business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise with respect to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company termination pursuant to Section 8.3(a8.2(b)), then the Company shall promptly, but in no event later than two days and (C) within twelve (12) months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”1) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “2015%” in the definition of “Acquisition Proposal”)) or (2) there shall have been consummated an Acquisition Proposal; provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 twelve (12) months of after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved, adopted approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in ;
(ii) this Agreement is terminated by Parent pursuant to Section 8.5(b8.4 (other than pursuant to Section 8.4(d)); or
(iii) are an integral part of the transactions contemplated this Agreement is terminated by 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 any amount due pursuant to this Section 8.5(b), 8.2(b) and, in order on or prior to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.the Stockholders Meeting, any event giving rise to Parent’s right to terminate pursuant to Section 8.4 (other than pursuant to Section 8.4(d)) shall have occurred,
Appears in 1 contract
Sources: Merger Agreement (At&t 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, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any fraud or willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 9.2 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice affect the obligations of such the parties contained in the Confidentiality Agreement, all of which obligations shall survive termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofin accordance with its terms.
(b) In the event that Neuromed shall pay CombinatoRx:
(i) an Acquisition Proposal shall have been made to the Company or any Termination Fee in the event 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least termination of this Agreement pursuant to:
(A) 10 business days prior to termination Section 8.1(c)(i); or
(B) Section 8.1(d)(iii); or
(ii) all reasonable costs and expenses (including attorneys’ fees) of CombinatoRx incurred in connection with this Agreement, with respect to Agreement and the transactions contemplated hereby in the event of the termination of this Agreement pursuant to Section 8.2(a8.1(c)(iv), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal such payment shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliatesexceed $500,000. The Company Neuromed acknowledges that the agreements contained in this Section 8.5(b8.2(b) are an integral part of the Merger and the transactions contemplated by this Agreement, and that, without these agreements, Parent CombinatoRx and Merger Sub would not enter into this Agreement; accordingly, if the Company Neuromed fails to promptly pay any amount due the Termination Fee pursuant to this Section 8.5(b8.2(b)(i) or the costs and expenses pursuant to Section 8.2(b)(ii), and, in order to obtain such payment, Parent CombinatoRx or Merger Sub commences a suit which that results in a judgment against the Company Neuromed for the fee, to which reference is made payment set forth in this Section 8.5(b)8.2(b) or any portion of such payment, the Company Neuromed shall pay to Parent CombinatoRx or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on .
(c) CombinatoRx shall pay Neuromed the amount Termination Fee in the event of the termination of this Agreement pursuant to:
(i) Section 8.1(d)(i); or
(ii) Section 8.1(c)(iii). CombinatoRx acknowledges that the agreements contained in this Section 8.2(c) are an integral part of the Merger and the transactions contemplated by this Agreement, and that, without these agreements, Neuromed and Neuromed Canada would not enter into this Agreement; accordingly, if CombinatoRx fails to promptly pay the Termination Fee pursuant to this Section 8.2(c), and, in order to obtain such payment, Neuromed or Neuromed Canada commences a suit that results in a judgment against CombinatoRx for the fee at set forth in this Section 8.2(c) or any portion of such fee, CombinatoRx shall pay to Neuromed or Neuromed Canada its costs and expenses (including attorneys’ fees) in connection with such suit.
(d) The amounts payable pursuant to Section 8.2(b)(i)(A), 8.2(b)(ii) or Section 8.2(c)(i), in each such case, shall be paid by wire transfer of immediately available funds within three (3) Business Days after the prime rate termination of Citibank N.A. this Agreement pursuant to Article VIII, and the fee payable pursuant to Section 8.2(b)(i)(B) or Section 8.2(c)(ii), in effect on each such case, shall be paid by wire transfer of immediately available funds concurrently with the date termination of this Agreement, in each case to the accounts specified in Schedule IV hereto.
(e) Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that any fee becomes payable pursuant to Section 8.2 and is paid by either Neuromed or CombinatoRx, such payment was required to fee shall be made through the date other party’s sole and exclusive remedy for monetary damages under this Agreement, other than damages incurred in the event of paymenta breach of this Agreement described in clause (i) of Section 8.2(a).
Appears in 1 contract
Sources: Merger Agreement (Combinatorx, Inc)
Effect of Termination and Abandonment. (a) In the event of termination of If this Agreement and the abandonment of the Merger is terminated or abandoned pursuant to this Article VIIIX, this Agreement shall become void and of no further force or effect with no liability on the part of any party hereto (or on the part of any of its Representatives directors, officers, employees, agents, legal or Affiliatesfinancial advisors or other representatives); provided, however, except that (i) except as otherwise provided hereinthe agreements contained in this Article X, Article XI, Article XII and in the Confidentiality Agreement, shall survive the termination hereof and (ii) no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination by that party of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter If this Agreement is terminated by either Parent or the Company pursuant to (i) Section 8.2(a) or 8.2(b10.01(d), (ii) this Agreement is terminated Section 10.01(e)(i) (A) by Parent but only if termination pursuant to Section 8.4(a), 10.01(e)(i) is a result of the negligent or (B) willful failure of Seller to perform any obligations required to be performed by the Company pursuant to Section 8.2(b) and, it hereunder on or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(atermination) shall have occurred, or (iii) Section 10.01(e)(ii), then Seller shall pay all of Holdco's reasonable out-of-pocket expenses incurred in connection with this Agreement, including, without limitation, all reasonable legal fees and expenses and all fees and expenses of Merrill Lynch incurred by Holdco, together with all fees and expense▇ ▇▇▇▇▇e▇▇▇▇ to Seller pursuant to Section 8 of the Management Agreement, by wire transfer or cashier's check within five (5) Business Days after termination hereof.
(c) If this Agreement is terminated by the Company pursuant to (i) Section 10.01(c), or (ii) Section 10.01(e)(i) (but only if termination pursuant to Section 8.3(a10.01(e)(i) is a result of the negligent or willful failure of Holdco to perform any obligations required to be performed by it hereunder on or prior to the date of termination), then Holdco shall pay all of Seller's reasonable out-of-pocket expenses incurred in connection with this Agreement, including all reasonable legal fees and expenses and all fees and expenses of Lehman and Houlihan Lokey incurred by Seller, together with the Company shall promptly, but Incr▇▇▇▇▇▇l Cos▇▇ (▇▇ ▇u▇▇ ▇▇rm is defined in no event later than two days after the date Management Agreement) chargeable to Holdco upon termination of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) this Agreement by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause or cashiers check within five (iii5) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such Business Days after termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymenthereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Charter Communications Inc /Mo/)
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) or (c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 (x) any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional material breach of this Agreement or (y) Parent or Merger Sub of any liability or damages to the Company resulting from the failure by Parent or Merger Sub to obtain the Financing (including a breach of Section 5.2(d) and Section 6.10) and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 thirty (30) business days prior to termination of this Agreementto, with respect to any termination of this Agreement pursuant to Section 8.2(a), or the date of termination, and (B) five at least ten (10) business days prior to termination of this Agreementto, with respect to termination of this Agreement pursuant to Section 8.2(b), the date of the Stockholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) (Drop Dead) or 8.2(b) (No Stockholder Approval), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), 8.4 or (B) 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) 8.4 shall have occurred, occurred or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a) (Fiduciary Out), then then, in each case, the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee of $12,825,000 1,250,000,000 (the “Termination Fee”) by wire transfer of same day funds; (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 of same day funds; provided, furtherhowever, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of 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 or shall have approved, adopted approved or recommended to the Company’s stockholders or otherwise not opposedstockholders, an Acquisition Proposal made by or on behalf (2) there shall have been consummated an Acquisition Proposal (substituting in both instances “50%” for “15%”, it being understood for the avoidance of doubt that any series of related transactions shall be aggregated and considered as a whole in determining such Person or any percentages in the definition of its Affiliates“Acquisition Proposal”). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any 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 that results in a judgment against the Company for the fee, to which reference is made fee set forth in this Section 8.5(b)) or any portion of such fee, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate published in the Money Rates section of Citibank N.A. The Wall Street Journal in effect on the date such payment was required to be made through made. 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.
(c) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.2(c), then, Parent shall promptly, but in no event later than two days after the date of such termination, pay the Company the Termination Fee, 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 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 and/or Merger Sub for the fee set forth in this Section 8.5(c) or any portion of such fee, 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 published in the Money Rates section of The Wall Street Journal in effect on the date such payment was required to be made. 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 Parent pursuant to this Section 8.5(c) (provided that (i) neither Parent nor Merger Sub has breached any obligation under Section 6.1(c) (but only with respect to (x) clause (2) of the first sentence thereof and (y) the second sentence thereof) or Section 6.4(b) of this Agreement and (ii) the Stichting has not breached any obligation under the Parent Stockholder Commitment), then the Termination Fee shall be the Company’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 by either Investor or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Investor, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them or Affiliates)any of the other Investor Parties shall have any liability of any nature whatsoever hereunder, or in connection with the transactions contemplated hereby, except that Sections 6.4, 6.13 and 9.4 and this Section 8.2 shall survive any termination of this Agreement; provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto Investor or the Company of any liability or damages resulting from any willful or intentional and material breach of this Agreement and (ii) the provisions any representation, warranty, covenant or agreement set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless prior to such termination and until notice in the event of such termination breach the parties hereto shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement exercise any and all remedies available under law or receive any notice thereofequity, but only to the extent expressly provided in Section 9.11 hereof.
(b) In the event this Agreement is terminated by Investor pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay to Investor an amount, as liquidated damages and not as a penalty, equal to $1,000,000 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Investor or the Company pursuant to Section 8.1(e) or Section 8.1(c) due to the failure to obtain Requisite Shareholder Approval at the Company Meeting, and (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days announced, disclosed or otherwise communicated to the Company Board prior to the date specified in Section 8.1(c) or prior to the Company Meeting in the case of a termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b8.1(c), and thereafter (ii) within 12 months of such termination, the Company shall have entered into a definitive agreement with respect to, or the Company shall have consummated, an Acquisition Transaction, then the Company shall pay to Investor an amount equal to the Termination Fee.
(d) In the event that this Agreement is terminated by either Parent Investor pursuant to Section 8.1(b) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Investor or during the cure period therefor provided in Section 8.1(b) and (ii) within 12 months of such termination, the Company shall have entered into a definitive agreement with respect to, or the Company pursuant to Section 8.2(a) or 8.2(b)shall have consummated, (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a)an Acquisition Transaction with the party presenting the Acquisition Proposal, or (B) by then the Company pursuant shall pay to Section 8.2(b) and, on or prior Investor an amount equal to the date of Termination Fee.
(e) In the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) that this Agreement is terminated by the Company pursuant to Section 8.3(a8.1(c), and, at the time of such termination, all of the conditions in Section 7.1 and 7.2 shall have been satisfied or would have been satisfied if the Closing were to occur on the date of termination, then Investor shall pay to the Company an amount equal to the Termination Fee.
(f) In the event that this Agreement is terminated by Investor pursuant to Section 8.1(c), and, at the time of such termination, all of the conditions in Section 7.1 and 7.3 shall have been satisfied or would have been satisfied if the Closing were to occur on the date of termination, then the Company shall promptly, but in no event later pay to Investor an amount equal to the Termination Fee.
(g) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than two days five Business Days after the date of the event giving rise to the obligation to make such terminationpayment, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that unless the Termination Fee to be paid is payable as a result of the termination of this Agreement by the Company pursuant to clause (iii) shall be paid as set forth Section 8.1(g), in Section 8.3; providedwhich case, further, that no the Termination Fee shall be payable to Parent pursuant to clause concurrently with such termination.
(ih) of this Section 8.5(b) unless Investor and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub neither Investor nor the Company would not enter into this Agreement; accordingly. Accordingly, if the Company any party fails promptly to promptly pay any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Parent or Merger Sub the other party commences a suit which results in a judgment against the Company party that failed to promptly pay the amount due pursuant to this Section 8.2, for the fee, to which reference is made amount set forth in this Section 8.5(b)8.2, the Company party that was the subject of the suit shall pay to Parent or Merger Sub the other party its costs and expenses (including reasonable attorneys’ feesfees and expenses) in connection with such suit, together with interest on the amount of the fee Termination Fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither PPBI nor SCB shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that SCB shall pay PPBI the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 4.5 million (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by wire transfer of same day funds; providedPPBI pursuant to Section 8.01(f) or (h), however, that SCB shall pay the entire Termination Fee to be paid PPBI on the second Business Day following the termination of this Agreement; or
(ii) if this Agreement is terminated by (A) PPBI pursuant to Section 8.01(b), (B) by either PPBI or SCB pursuant to Section 8.01(c) and at the time of such termination no vote of the SCB shareholders contemplated by this Agreement at the SCB Meeting shall have occurred, or (C) by PPBI pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been publicly announced or otherwise communicated or made known to the senior management of SCB or the SCB Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention 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 SCB contemplated by this Agreement at the SCB Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 12 months after such termination SCB enters into an agreement with respect to a Control Transaction, then SCB shall pay to PPBI an amount equal to $3.0 million on the date of execution of such agreement and upon consummation of any such Control Transaction at any time thereafter, SCB shall pay to PPBI the remainder of the Termination Fee on the date of such consummation and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with SCB within 15 months after such termination, then SCB shall pay to PPBI the Termination Fee (less any amount previously paid by SCB pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “publicly withdrawnControl Transaction” means (i) the acquisition by any Person ifwhether by purchase, within 12 months merger, consolidation, sale, transfer or otherwise, in one transaction or any series of such terminationtransactions, of a majority of the Company voting power of the outstanding securities of SCB or Security Bank or a majority of the assets of SCB or Security Bank, (ii) any issuance of securities resulting in the ownership by any Person of more than 50% of the voting power of SCB or by any Person other than SCB or its Subsidiaries of more than 50% of the voting power of Security Bank or (iii) any merger, consolidation or other business combination transaction involving SCB or any of its Subsidiaries as a result of which the shareholders of SCB cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made account designated by or on behalf of such Person or any of its Affiliates. The Company acknowledges PPBI.
(c) SCB and PPBI agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement PPBI would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by SCB. If SCB fails to promptly pay any amount PPBI the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company SCB shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by PPBI in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided PPBI prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise provided hereinset forth in this Section 8.02 and Section 9.01, no and any other Section which, by its terms, relates to post-termination rights or obligations, shall survive such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and remain in full force and effect, and (ii) the provisions set forth in the second sentence that termination will not relieve a breaching party from liability for any willful breach of Section 9.1 shall survive the termination of this Agreement. No termination any covenant, agreement, representation or warranty of this Agreement shall be effective unless and until notice of giving rise to such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereoftermination.
(b) Except as provided below, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses.
(c) In the event that (i) an Acquisition Proposal of a termination of this Agreement because of a willful breach of any representation, warranty, covenant or agreement contained in this Agreement, the breaching party shall have been made to remain liable for any and all damages, costs and expenses, including all reasonable attorneys' fees, sustained or incurred by the Company non-breaching party as a result thereof or any of its stockholders in connection therewith or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the enforcement of its rights hereunder.
(d) In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring the Merger, the parties agree that the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least pay Parent:
(Ai) 10 the sum of $1,600,000 in cash on demand within three business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter after written demand for payment is made by Parent if this Agreement is terminated by either Parent or following the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated occurrence of any of the events set forth below:
(A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) if this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(h) or by Parent pursuant to Sections 8.01(f) or (g), then ; or
(B) if this Agreement is terminated by (1) Parent pursuant to Section 8.01(b) or (2) by either Parent or the Company pursuant to Section 8.01(e) and (x) an Acquisition Proposal shall promptlyhave been publicly announced or otherwise communicated or made known to the Company Board (or any Person shall have publicly announced, but in no event later than two days communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of such 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 (2), or the date of termination, pay Parent a in the case of clause (1), and (y) within 18 months after such termination fee the Company or IFC enters into an agreement with respect to, or consummates, an Acquisition Proposal.
(ii) the sum of $12,825,000 (the “Termination Fee”) 325,000 in cash on demand within three business days after written demand for payment is made by wire transfer of same day fundsParent if this Agreement is terminated by Parent pursuant to Section 8.01(e); provided, however, that in no event shall the Termination Fee aggregate fee payable to be paid Parent by the Company pursuant to clause Section 8.02(d)(i) and (iiiii) exceed $1,600,000. Any amount that becomes payable pursuant to this Section 8.02(d) shall be paid as set forth by wire transfer of immediately available funds to an account designated by Parent.
(e) The Company and Parent agree that the agreement contained in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause paragraph (ib) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are 8.02 is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, such agreement Parent and Merger Sub would not enter have entered into this Agreement; accordingly, if Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay any amount Parent the amounts 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 under paragraph (b) above within the Company for the fee, to which reference is made in this Section 8.5(b)time periods specified therein, the Company shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Parent in connection with any action in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(e) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither PPBI nor Grandpoint shall be relieved or released from any liabilities or damages to the second sentence of Section 9.1 shall survive the termination other party hereto resulting from any knowing and intentional breach of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have has been made (whether or not conditional) to the Company Grandpoint or any of its stockholders shareholders or any Person shall have has publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least qualification) and thereafter (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company PPBI pursuant to 8.01(c) or PPBI pursuant to 8.01(g) and (B) prior to the date that is 12 months after such termination, (1) Grandpoint or any of its Subsidiaries enters into an Acquisition Agreement with respect to any Acquisition Proposal or (2) any Acquisition Proposal is consummated (solely for purposes of this Section 8.3(a8.02(b)(i)(B), the term “Acquisition Proposal” shall have the meaning set forth in the definition of Acquisition Proposal contained in Section 6.07(a) except that all references to 10% shall be deemed references to 50%), then the Company Grandpoint shall promptly, but in no event later than two days after the date of such termination, pay Parent to PPBI a termination fee of equal to $12,825,000 23.0 million (the “Termination Fee”) by wire transfer of same next day funds; providedfunds on the earlier of the date of execution of such Acquisition Agreement or the consummation of such Acquisition Proposal. In the event that (i) this Agreement is terminated by PPBI pursuant to Section 8.01(e) or (ii) this Agreement is terminated by Grandpoint pursuant to Section 8.01(f), howeverthen, that in each such case, Grandpoint shall pay PPBI the Termination Fee to be paid by wire transfer of same-day funds (x) in the case of a termination by PPBI pursuant to clause Section 8.01(e), within two Business Days after such termination, and (iiiy) shall be paid as set forth in the case of a termination by Grandpoint pursuant to Section 8.3; provided8.01(f), furtherno later than the time of such termination. If the Termination Fee becomes payable pursuant to the terms of this Agreement, that no payment of the Termination Fee shall be payable to Parent pursuant to clause (i) the sole and exclusive remedy of this Section 8.5(b) unless PPBI against Grandpoint and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement and their respective Representatives with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders breach of any covenant or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails agreement giving rise to promptly pay any 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of 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 Mergers pursuant to this Article VIIIIX, this Agreement (other than Sections 7.5(b) and 7.14(a), the last sentence of Section 7.15(a), this Section 9.5 and Article X, all of which will survive such termination) shall become void and of no effect with no liability or obligation on the part of any party hereto Party (or of any of its Representatives directors, officers, employees, agents, legal and financial advisors or Affiliatesother representatives); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party Party hereto of any liability or damages resulting from any fraud or willful or intentional 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. No termination of this Agreement shall be effective unless and until notice affect the obligations of such termination the Parties contained in the Confidentiality Agreement, all of which obligations shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofsurvive in accordance with their terms.
(b) In The Company shall pay to Parent a fee equal to the Company Termination Fee by wire transfer of immediately available funds on the date that the Company Termination Fee is due as provided below, in the event that this Agreement is terminated:
(i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a9.2(a) (solely in the event the Company Stockholders’ Meeting has not occurred), Section 9.2(b)(i) or 8.2(b)Section 9.4(b) (solely as a result of a willful breach or an action or inaction done in bad faith by the Company) and, (ii) this Agreement is terminated in each case, the following occurs:
(A) by Parent after the date of this Agreement, any third party makes a Competing Proposal to the Company that has become publicly known or publicly discloses or announces a bona fide intention to make a Competing Proposal, in each case, prior to either (1) with respect to any termination pursuant to Section 8.4(a9.2(a) or Section 9.4(b), the date of such termination or (B2) by the Company with respect to any termination pursuant to Section 8.2(b) and9.2(b)(i), on or prior to the date of the Stockholders Company Stockholders’ Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a; and
(B) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered enters into an Alternative Acquisition Agreement with respect toto consummate, or shall have consummated consummates, or shall have approved, adopted approves or recommended recommends to the stockholders of the Company’s stockholders , a Competing Proposal, in each case, which is consummated and which is from or otherwise not opposedwith a third party that made, an Acquisition or publicly disclosed or announced a bona fide intention to make, a Competing Proposal made during the time periods set forth in Sections 9.5(b)(i)(A)(1) or (2) above;
(ii) by or on behalf the Company (A) pursuant to Section 9.2(b)(i) if at the time of such Person termination Parent could have terminated this Agreement pursuant to Section 9.4(a) or (B) pursuant to Section 9.3(a);
(iii) by Parent pursuant to Section 9.2(b)(i);
(iv) by Parent pursuant to Section 9.4(a); or
(v) by Parent pursuant to Section 9.4(b) (solely as a result of a willful breach or an action or inaction done in bad faith by the Company). The Company shall pay Parent the Company Termination Fee no later than: (x) the date of consummation of (and as a condition precedent to the consummation of) the applicable Competing Proposal, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two Business Days after termination of this Agreement in the case of clause (iii) above. Subject to Section 9.5(a), Parent, Merger Sub and Successor Sub agree that payment of the Company Termination Fee (together with applicable costs of collection, if any), if the Company Termination Fee is actually paid as provided herein, will be the sole and exclusive remedy of Parent, Merger Sub and Successor Sub or any of their respective financing sources, stockholders, members, directors, officers, employees, representatives or agents, upon termination of this Agreement in the circumstance described in this Section 9.5(b). For the avoidance of doubt and subject to Section 9.5(a), (1) in the event the Company Termination Fee is paid, under no circumstances will the Company or any of its former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates. The Company acknowledges that the agreements contained , members, managers, general or limited partners or assignees be liable for monetary damages in this Section 8.5(b) are an integral part excess of the transactions contemplated by this Agreement, Company Termination Fee (and that, without these agreements, any amounts payable to Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to this the last paragraph of 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay 9.5(b) below) whether to Parent or Merger Sub its costs any Affiliate thereof, and expenses (including attorneys’ fees2) while Parent may pursue both a grant of specific performance in connection accordance with such suit, together with interest on Section 10.5 and the amount payment of the fee at Company Termination Fee under Section 9.5(b), under no circumstances shall Parent be permitted or entitled to receive both a grant of specific performance and monetary damages, including all or any portion of the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentCompany Termination Fee.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Ceco Environmental Corp)
Effect of Termination and Abandonment. (a) This Agreement may be terminated only pursuant to Section 9.1, Section 9.2, Section 9.3 or Section 9.4. Termination of this Agreement shall not require the approval of the Stockholders. In order to terminate this Agreement, the party desiring to terminate this Agreement shall give written notice of such termination to the other parties in accordance with Section 10.6. Except as provided in this Section 9.5, in the event of termination of this Agreement and the abandonment of the Merger pursuant to and in accordance with this Article VIIIIX, this Agreement shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (hereto, any Financing Source, the Guarantors or of any of its their respective Representatives or Affiliates); provided, however, that Affiliates other than: (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in Section 7.8 (Publicity), Section 7.10 (Expenses), the second sentence expense reimbursement and indemnification obligations of Parent in Section 9.1 shall 7.17, Section 7.18, and Section 7.19, this Section 9.5, Section 9.6, Section 9.7 and Article X (which provisions will survive the termination of this Agreement. No ), (ii) the Confidentiality Agreement and the Guaranty (which agreements will survive the termination of this Agreement Agreement), and (iii), subject to this Section 9.5, Section 10.5(g) and Section 10.12, nothing shall be effective unless and until notice of such termination shall have been given by the terminating relieve any party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement from any liability for any willful or receive any notice thereofintentional breach by such party.
(b) In the event that event:
(i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by (A) either Parent or the Company or Parent pursuant to Section 8.2(a9.2(a) (Outside Date) or 8.2(bSection 9.2(b) (Requisite Stockholder Vote Not Obtained), or Parent pursuant to Section 9.4(a) (Company Breach) or Section 9.4(c) and, in either case, prior to the date of termination the Company has received a bona fide Acquisition Proposal or a bona fide Acquisition Proposal has been publicly disclosed and not withdrawn and (B) within twelve (12) months of the date of any termination referred to in clause (A) the Company enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal; provided that for purposes of this Section 9.5(b)(i), the references to “15%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”;
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a9.4(b) (Change of Recommendation), or (B) 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) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a9.3(b) (Superior Proposal); then, then in each case, the Company shall promptly, but in no event later than two days after the date of such termination, will pay Parent a termination fee as consideration for the disposition of rights acquired under this Agreement an aggregate amount equal to $12,825,000 261,000,000 (the “Company Termination FeePayment”) by wire transfer of same day funds; providedimmediately available funds to an account designated in writing by Parent (1) in the case of a payment required by Section 9.5(b)(i), however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months two Business Days after consummation of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect toProposal, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” 2) in the definition case of “Acquisition Proposal”a payment required by Section 9.5(b)(ii); provided that for purposes , within two Business Days after termination of this Agreement, or (3) in the case of a payment required by Section 9.5(b)(iii), concurrently with or prior to termination of this Agreement, subject to Section 9.7. The parties acknowledge and agree that in no event will the Company be required to pay the Company Termination Payment on more than one occasion.
(c) In the event this Agreement is terminated by Parent or the Company pursuant to Section 9.2(b) (Requisite Stockholder Vote Not Obtained) (other than a deemed termination pursuant to Section 9.4(b)) or by Parent pursuant to Section 9.4(c), then the Company will reimburse Parent for Parent’s reasonable and documented out of pocket expenses incurred in connection with the preparation, negotiation, execution, and performance of this Agreement, the Merger and the other Transactions up to an Acquisition Proposal amount equal to $70,000,000 (the “Expense Reimbursement Payment”) within two Business Days after termination of this Agreement pursuant to Section 9.2(b), and in no event shall the Company be required to pay the Expense Reimbursement Payment if it has paid the Company Termination Payment in full. For the avoidance of doubt, subject to Section 9.5(a), the Expense Reimbursement Payment shall not be deemed the sole remedy of Parent against the Company. The Expense Reimbursement Payment paid by the Company to have been “publicly withdrawn” Parent in accordance with this Section 9.5(c) shall be credited against any Company Termination Payment obligation that becomes due pursuant to Section 9.5(b).
(d) In the event this Agreement is terminated (i) by any Person ifParent pursuant to Section 9.2(a) (Outside Date) and, within 12 months at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 9.3(a) or any of its Subsidiaries Section 9.3(c) or (ii) by the Company pursuant to Section 9.3(a) or Section 9.3(c), Parent shall have entered into an Alternative Acquisition Agreement with respect to, pay or shall have consummated or shall have approved, adopted or recommended cause to be paid to the Company or, if directed by the Company’s stockholders or otherwise not opposed, to Forest City TRS, LLC an Acquisition Proposal made aggregate amount equal to $488,000,000 (the “Parent Termination Payment” and, together with the Company Termination Payment and the Expense Reimbursement Payment, the “Termination Payments”) by or on behalf wire transfer of such Person or any immediately available funds, subject to Section 9.6, within two Business Days after termination of its Affiliatesthis Agreement to an account designated in writing by the Company. The Company parties acknowledge and agree that in no event will Parent be required to pay the Parent Termination Payment on more than one occasion.
(e) Each party acknowledges that the agreements contained in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this AgreementMerger and the other Transactions, and that, without these agreements, Parent and Merger Sub no party would not enter have entered into this Agreement; accordingly, if in the event any Termination Payment is required to be paid pursuant to Section 9.5(b), Section 9.5(c) or Section 9.5(d) and the Company or Parent, as applicable fails to promptly timely pay any amount due pursuant to this Section 8.5(b), other party such Termination Payment and, in order to obtain such payment, Parent or Merger Sub the Company, as applicable commences a suit which that results in a judgment against the Company or Parent, as applicable for the fee, to which reference is made in this Section 8.5(b)such Termination Payment, the Company shall or Parent, as applicable, will pay to Parent or Merger Sub the other party its costs and expenses (including attorneys’ feesfees and disbursements of counsel or other professionals and experts and court costs) in connection with such suit, together with interest on the amount of the fee thereon at the prime rate of Citibank N.A. as published in The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by the other party) in effect on the date such payment Termination Payment was required to be made paid from such date through the date of paymentfull payment thereof.
(f) If the Company Termination Payment is required to be paid pursuant to Section 9.5(b), Parent’s right to receive the Company Termination Payment and any additional amounts pursuant to Section 9.5(e) will be the sole and exclusive remedies of Parent, its respective Subsidiaries, any of Parent’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents and other Representatives and any other Person against the Company, the Company’s Subsidiaries, any of the Company’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives and the Financing Sources for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger and the other Transactions to be consummated.
(g) If a Parent Termination Payment is required to be paid pursuant to Section 9.5(d), the Company’s right to receive the Parent Termination Payment and any additional amounts pursuant to Section 9.5(e), and the expense reimbursement and indemnification obligations of Parent in Section 7.17, Section 7.18, and Section 7.19 will be the sole and exclusive remedies of the Company, its respective Subsidiaries, any of the Company’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents and other Representatives and any other Person against Parent, Parent’s Subsidiaries, any of Parent’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives and the Financing Sources for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger and the other Transactions to be consummated.
(h) Each of the parties acknowledges and agrees that: (i) a Termination Payment is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent or the Company in the circumstances in which such Termination Payment 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 Merger and the other Transactions, which amount would otherwise be impossible to calculate with precision, (ii) any Company Termination Payment or Parent Termination Payment, and any additional amounts pursuant to Section 9.5(e), when paid in full accordance with this Agreement will be in full and complete satisfaction of any and all monetary damages of Parent or the Company, as applicable, and each of its Subsidiaries or any of their respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives arising out of or related to this Agreement, the Merger or the other Transactions (including any breach of this Agreement by the Company), the termination of this Agreement, the failure to consummate the Merger or the other Transactions, and any claims or actions under applicable Laws arising out of any such breach, termination or failure, (iii) in the event this Agreement is terminated under circumstances where the Company Termination Payment or the Parent Termination Payment is payable, in no event will Parent or the Company, as the case may be, be entitled to seek or obtain any recovery or judgment in excess of the Company Termination Payment or the Parent Termination Payment, as applicable, and any additional amounts pursuant to Section 9.5(e) against the Company or Parent, as applicable, and each of its Subsidiaries or any of their respective former, current or future general or limited partners, stockholders, directors, officers, employees, managers, members, Affiliates, agents or other Representatives or any of their respective assets, and in no event will Parent or the Company, as applicable, be entitled to seek or obtain any other damages of any kind (including against the Financing Sources), including consequential, special, indirect or punitive damages for, or with respect to, this Agreement or the Merger or the other Transactions (including any breach by the Company), the termination of this Agreement, the failure to consummate the Merger, the Debt Commitment Letter, the Debt Financing or the other Transactions or any claims or actions under applicable Laws arising out of any such breach, termination or failure, and (iv) the parties will take such actions as are necessary and sufficient so that the agreements contained in this Section 9.5 may be enforceable against such party, including executing and delivering any waivers, releases and similar instruments consistent therewith upon any other party’s request; provided, however, that this Section 9.5 will not limit the right of the parties hereto to specific performance of this Agreement pursuant to Section 10.5(f) (subject to the limitations set forth therein) or with respect to any provision of this Agreement that expressly survives termination of 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, this Agreement shall become void and of no effect with no liability to any person on the part of any party hereto (or of any of its Representatives or Affiliatesaffiliates); 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 damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in this Section 8.5, Section 8.6, Section 6.13(b) (with respect to Parent’s reimbursement and indemnification obligations) and Section 9.1, the second sentence of Section 9.1 Confidentiality Agreement and the Guaranty (to the extent set forth therein) shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an Acquisition Proposal (x) this Agreement is terminated pursuant to Section 8.2(a) or Section 8.4(c), (y) any person shall have been made to the Company or any of its stockholders or any Person shall have publicly announced disclosed an intention (whether or not conditional) to make an Acquisition Proposal with respect after the date of this Agreement but prior to the Company such termination, and such Acquisition Proposal or Proposal, to the extent publicly announced intention disclosed, shall not have been publicly withdrawn without qualification at least prior to such termination, and (z) prior to or within twelve (12) months of such termination the Company shall have 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 each of this clause (z) and clause (A) 10 business days prior below, the references to termination “20%” in the definition of this Agreement, with respect “Acquisition Proposal” shall be deemed to termination of be references to “50%”);
(ii) (x) this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement is terminated pursuant to Section 8.2(b), and thereafter (y) any person shall have publicly made or publicly disclosed an intention to make an Acquisition Proposal after the date of this Agreement is terminated by either Parent but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination or at least 10 Business Days prior to the Shareholders Meeting, and (z) prior to or within twelve (12) months of such termination the Company pursuant shall have consummated any Acquisition Proposal (in each case whether or not such Acquisition Proposal is the same Acquisition Proposal referred to Section 8.2(ain clause (y)) or 8.2(b(provided that for purposes of each of this clause (z) and clause (A) below, the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”), ;
(iiiii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), 8.4(b) or 8.4(d); or
(B) 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) shall have occurred, or (iiiiv) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 1 contract
Sources: Merger Agreement (Tollgrade Communications Inc \Pa\)
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, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any member of its Representatives the Parent Group or Affiliates)the Company Group) except as provided in this Section 7.5; provided, however, that (i) except as otherwise provided herein, no such termination nothing herein shall relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach Willful Breach of this Agreement prior to such termination, in which case, subject to the terms and conditions of the Agreement, the aggrieved party shall be entitled to all rights and remedies available at law or in equity, and (ii) the provisions set forth Confidentiality Agreement, Section 3.26, Section 4.11, Section 4.12, Section 5.9, the covenants and other agreements of Parent Holdco or Parent contained in Section 5.6(b), this Section 7.5 and Article VIII, as well as the second sentence definitions of Section 9.1 the defined terms used in such Sections, shall survive the termination of this Agreement. No termination of The party desiring to terminate this Agreement pursuant to Section 7.2, 7.3 or 7.4 shall be effective unless and until give written notice of such termination shall have been given by termination, including a description in reasonable detail of the terminating party pursuant reasons for such termination, to the other parties in accordance with Section 9.68.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 hereof pursuant to which such termination has been is effected. Any termination by Parent or Parent Holdco in accordance with the terms of Article VII shall also be deemed to be on behalf of Parent Holdco, Parent and Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofSub.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to the Company Parent Holdco 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of Parent terminates this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a7.4(a), then the Company shall promptly, but in no event later than two days (2) Business Days after the date of such termination, pay to Parent a termination fee of $12,825,000 (Holdco or Parent the “applicable Termination Fee”) Fee by wire transfer of same day funds; providedfunds to one or more accounts designated by Parent.
(ii) the Company terminates this Agreement pursuant to Section 7.3(a), howeverthen the Company shall prior to or concurrently with such termination, that pay to Parent Holdco or Parent the applicable Termination Fee by wire transfer of same day funds to be paid pursuant to clause one or more accounts designated by Parent.
(iii) shall be paid as set forth in (A) this Agreement is terminated by Parent Holdco or Parent, or the Company, pursuant to Section 8.3; provided7.2(a), furtherby Parent Holdco or Parent, that no Termination Fee shall be payable or the Company, pursuant to Section 7.2(b), or by Parent Holdco or Parent pursuant to clause Section 7.4(b), (iB) after the date of this Section 8.5(bAgreement, any Person shall have publicly made a bona fide Acquisition Proposal or an Acquisition Proposal shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional and whether or not withdrawn) unless to make an Acquisition Proposal prior to the termination of this Agreement, and until (C) within 12 twelve (12) months of such termination (1) the Company or any of its Subsidiaries enters into a definitive agreement for any Acquisition Proposal, or (2) any Acquisition Proposal shall have been consummated, then the Company shall have entered into an Alternate Acquisition Agreement with respect topromptly, but in no event later than three (3) Business Days after the first to occur of the events referred to in clauses (1) or shall have consummated (2) of Section 7.5(b)(iii)(C), pay to Parent Holdco or shall have approved Parent the applicable Termination Fee by wire transfer of same day funds to one or recommended more accounts designated by Parent; provided, that for purposes of this Section 7.5(b)(iii)(C), the references to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have been be references to “publicly withdrawn” by any Person if, within 12 months of such termination, 50%”.
(iv) In no event shall the Company be required to pay the Termination Fee to Parent Holdco or any Parent on more than one occasion. Each of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company Parent Holdco, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 8.5(b7.5(b) are an integral part of the transactions contemplated by this Agreement, and that, (ii) without these agreements, Parent and Holdco, Parent, Merger Sub and the Company would not enter into this Agreement; accordingly, and (iii) the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent Holdco, Parent and Merger Sub in the circumstances in which such Termination Fee is payable for the efforts and resources expended and the opportunities forgone while negotiating this Agreement and in reliance on this Agreement and the expectation of the consummation of the transactions contemplated by this Agreement. Accordingly, if the Company fails to promptly pay the Termination Fee when due or any amount due pursuant to this Section 8.5(b), portion thereof and, in order to obtain such payment, Parent Holdco or Parent and Merger Sub commences a suit which results in a judgment final and nonappealable Order against the Company for the fee, to which reference is made in this Section 8.5(b)such Termination Fee or any portion thereof, the Company shall pay to Parent Holdco or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with Parent interest on the amount of the fee Termination Fee (or any portion thereof that has not been paid timely in accordance with this Agreement) at the prime lending rate of Citibank N.A. set forth in The Wall Street Journal in effect on the date such payment was required to be made through made. 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. Notwithstanding anything to the contrary contained in this Agreement, in the event this Agreement is terminated by the Company for any reason at a time when Parent Holdco or Parent would have had the right to terminate this Agreement, Parent Holdco or Parent shall be entitled to receipt of any Termination Fee that would have been (or would have subsequently become) payable had Parent Holdco or Parent terminated this Agreement at that time.
(v) Notwithstanding anything to the contrary in this Agreement, in the event that the Termination Fee is paid pursuant to this Section 7.5(b), except in the case of fraud, Parent Holdco’s or Parent’s right to receive payment of the Termination Fee and such other amounts described herein shall be the sole and exclusive remedy of Parent Holdco, Parent and their Affiliates and Representatives against the Company and its Affiliates and Representatives under this Agreement or arising out of or related to this Agreement or the transactions contemplated hereby, and upon payment of such amount, none of the Company or any of its Affiliates or Representatives shall have any liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, in each case whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Global Brass & Copper Holdings, 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) this Section 8.02, Section 6.06(d) and Article IX (except as otherwise provided herein, no such for Section 9.12) shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither Washington Federal or FFSW shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The parties hereto agree that FFSW shall pay Washington Federal the sum of $5.0 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if this Agreement is terminated by Washington Federal pursuant to Section 8.01(f) or (g), FFSW shall pay the entire FFSW Termination Fee to Washington Federal on the second sentence of Section 9.1 shall survive Business Day following the termination of this Agreement. No termination of ; or
(ii) if this Agreement shall be effective unless is terminated by (A) Washington Federal pursuant to Section 8.01(b), (B) by either Washington Federal or FFSW pursuant to Section 8.01(c) and until notice at the time of such termination no vote of the FFSW stockholders contemplated by this Agreement at the FFSW Meeting shall have been given occurred, or (C) by the terminating party either Washington Federal or FFSW pursuant to Section 9.68.01(e), specifying and in the provision or provisions case of Section 8.1, 8.2, 8.3 or 8.4 any termination pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement clause (A), (B) or receive any notice thereof.
(b) In the event that (i) C), 49 an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company senior management of FFSW or any of its stockholders the FFSW Board (or any Person shall have publicly announced announced, communicated or made known an intention (intention, whether or not conditional) , to make an Acquisition Proposal Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of FFSW contemplated by this Agreement at the FFSW Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 15 months after such termination FFSW enters into an agreement with respect to a Control Transaction, then FFSW shall pay to Washington Federal an amount equal to $2.5 million on the Company date of execution of such agreement and upon consummation of any such Acquisition Proposal or publicly announced intention Control Transaction at any time thereafter, FFSW shall not have been publicly withdrawn without qualification at least pay to Washington Federal the remainder of the Termination Fee on the date of such consummation and (A2) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement if a Control Transaction is consummated otherwise than pursuant to an agreement with FFSW within 18 months after such termination, then FFSW shall pay to Washington Federal the Termination Fee (less any amount previously paid by FFSW pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.2(a8.02(b), a "Control Transaction" means (i) the acquisition by any Person whether by purchase, merger, consolidation, sale, transfer or (B) five business days prior to termination otherwise, in one transaction or any series of this Agreementtransactions, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent a majority of the voting power of the outstanding securities of FFSW or FFB or a majority of the Company pursuant to Section 8.2(a) assets or 8.2(b)FFSW or FFB, (ii) this Agreement is terminated (A) any issuance of securities resulting in the ownership by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date any Person of more than 50% of the Stockholders Meeting, voting power of FFSW or by any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, Person other than FFSW or its Subsidiaries of more than 50% of the voting power of FFB or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a)any merger, 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, consolidation or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company other business combination transaction involving FFSW or any of its Subsidiaries as a result of which the stockholders of FFSW cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made account designated by or on behalf of such Person or any of its Affiliates. The Company acknowledges Washington Federal.
(c) FFSW and Washington Federal agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement Washington Federal would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by FFSW. If FFSW fails to promptly pay any amount Washington Federal the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company FFSW shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Washington Federal in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided Washington Federal prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (First Federal Banc of the Southwest 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither PPBI nor HEOP shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The parties hereto agree that HEOP shall pay PPBI the sum of $15.0 million (the “Termination Fee”) if this Agreement is terminated as follows: (i) if this Agreement is terminated by PPBI pursuant to Section 8.01(f) or (h), or by HEOP pursuant to Section 8.01(i), HEOP shall pay the entire Termination Fee to PPBI on the second sentence of Section 9.1 shall survive Business Day following the termination of this Agreement. No termination of ; or (ii) if this Agreement shall be effective unless is terminated by (A) PPBI pursuant to Section 8.01(b), (B) by either PPBI or HEOP pursuant to Section 8.01(c) and until notice at the time of such termination no vote of the HEOP shareholders contemplated by this Agreement at the HEOP Meeting shall have been given occurred, or (C) by the terminating party PPBI pursuant to Section 9.68.01(e), specifying and in the provision or provisions case of Section 8.1, 8.2, 8.3 or 8.4 any termination pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement clause (A), (B) or receive any notice thereof.
(b) In the event that (i) C), an Acquisition Proposal shall have been publicly announced and communicated or made known to the Company executive officers of HEOP or any of its stockholders the HEOP Board (or any Person shall have publicly announced and communicated or made known an intention (intention, whether or not conditional) , to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a)Proposal, or (Breiterated a previously expressed plan or intention to make an Acquisition Proposal) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, at any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days time after the date of such this Agreement and prior to the taking of the vote of the shareholders of HEOP contemplated by this Agreement at the HEOP Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 9 months after such termination HEOP enters into an agreement with respect to a Control Transaction, which was the subject of such Acquisition Proposal, then HEOP shall pay Parent a termination fee to PPBI an amount equal to $11.25 million on the date of $12,825,000 (execution of such agreement and upon consummation of such Control Transaction at any time thereafter, HEOP shall pay to PPBI the “Termination Fee”) by wire transfer remainder of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date of such payment was required to be made through the date of payment.consummation and (2) if a Control Transaction is consummated otherwise than pursuant
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither PPBI nor Plaza shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have has been made (whether or not conditional and whether or not withdrawn) to the Company Plaza or any of its stockholders shareholders or any Person shall have has publicly announced an intention (whether or not conditionalconditional and whether or not withdrawn) to make an Acquisition Proposal with respect to the Company and such or an Acquisition Proposal (whether or publicly announced intention shall not have been publicly withdrawn without qualification at least conditional and whether or not withdrawn) otherwise becomes known to Plaza or the executive officers of Plaza and thereafter (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company PPBI pursuant to 8.01(b) or PPBI pursuant to 8.01(g) and (B) prior to the date that is 12 months after such termination, (1) Plaza or any of its Subsidiaries enters into an Acquisition Agreement with respect to any Acquisition Proposal or (2) any Acquisition Proposal is consummated (solely for purposes of this Section 8.3(a8.02(b)(i)(B), the term “Acquisition Proposal” shall have the meaning set forth in the definition of Acquisition Proposal contained in Section 6.07(a) except that all references to 10% shall be deemed references to 50%), then the Company Plaza shall promptly, but in no event later than two days after the date of such termination, pay Parent to PPBI a termination fee of equal to $12,825,000 8.0 million (the “Termination Fee”) by wire transfer of same next day funds; providedfunds on the earlier of the date of execution of such Acquisition Agreement or the consummation of such Acquisition Proposal. In the event that (i) this Agreement is terminated by PPBI pursuant to Section 8.01(e) or (ii) this Agreement is terminated by Plaza pursuant to Section 8.01(f), howeverthen, that in each such case, Plaza shall pay PPBI the Termination Fee to be paid by wire transfer of same-day funds (x) in the case of a termination by PPBI pursuant to clause Section 8.01(e), within two Business Days after such termination, and (iiiy) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent the case of a termination by Plaza pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination 8.01(f), no later than the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months time of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) 5.5.1. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIV, this Agreement (other than as set forth in Section 6.1 (Survival)) shall become void and of no effect with no liability on the part of any party hereto either Party (or of any of its Representatives or AffiliatesRepresentatives); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto either Party of any liability or for damages resulting from any willful or and intentional breach of this Agreement and (ii) or from any obligation to pay, if applicable, the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party amounts payable pursuant to Section 9.6, specifying the provision 5.5.2 or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof5.5.3.
(b) 5.5.2. In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent Amoco or the Company BP pursuant to Section 8.2(a5.2(iii) and at the time of the Amoco Shareholders Meeting (or 8.2(b), at any adjournment thereof) an Acquisition Proposal exists with respect to Amoco or (ii) this Agreement is terminated (A) by Parent BP pursuant to Section 8.4(a5.4(i), or 5.4(ii) (B) by the Company pursuant to Section 8.2(b) and, on or prior solely with respect to the date recommendation by Amoco or the Board of the Stockholders Meeting, any event giving rise Directors of Amoco of an Acquisition Proposal with respect to Parent’s right Amoco) or 5.4(iii) (solely with respect to terminate under a willful and intentional breach of Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a3.2), then the Company Amoco shall promptly, but in no event later than two days after the date of such termination, pay Parent to BP a termination fee payment equal to the Amoco Termination Amount (as defined below), which amount shall be exclusive of $12,825,000 any expenses to be paid pursuant to Section 3.9 (the “Termination Fee”) Expenses), payable by wire transfer of same day funds; provided. The term "Amoco Termination Amount" shall mean, however, that in the Termination Fee to be paid case of termination by BP pursuant to clause (iiiii) shall be paid as set forth of the preceding sentence, $950,000,000 or, in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent the case of termination by Amoco or BP pursuant to clause (i) of this Section 8.5(bthe preceding sentence, "Amoco Termination Amount" shall mean $500,000,000, plus, if (x) unless Amoco executes and until delivers an agreement with respect to any Acquisition Proposal (an "Amoco Alternative Agreement") or (y) an Acquisition Proposal with respect to Amoco is consummated, in any such case, within 12 months from the date of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposedtermination, an Acquisition Proposal additional $450,000,000 (substituting “50%” which additional amount shall be paid promptly by wire transfer in same day funds, and in no event later than two days after the earliest date on which the event requiring Amoco to pay such additional sum occurs). In the event that the board of directors of Amoco recommends the acceptance by Amoco shareholders of a third-party tender or exchange offer for “20%” in the definition of “Acquisition Proposal”); provided that Amoco Common Shares, such recommendation shall be treated for purposes of this Agreement, paragraph as though an Acquisition Proposal shall not be deemed to have Amoco Alternative Agreement had been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliatesexecuted. The Company Amoco acknowledges that the agreements contained in this Section 8.5(b) 5.5.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub BP would not enter into this Agreement; accordingly, if the Company Amoco fails promptly to promptly pay any amount due pursuant to this Section 8.5(b)5.5.2, and, in order to obtain such payment, Parent or Merger Sub BP commences a suit which results in a judgment against the Company Amoco for the fee, to which reference is made payment set forth in this Section 8.5(b)5.5.2, the Company Amoco shall pay to Parent or Merger Sub BP its costs and expenses (including attorneys’ ' fees) in connection with such suit, together with interest on the amount Amoco Termination Amount from each date for payment until the date of the fee such payment at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentplus 2 percent.
Appears in 1 contract
Sources: Merger Agreement (Amoco 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(e) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither Purchaser Parent nor Seller shall be relieved or released from any liabilities or damages to the second sentence of Section 9.1 shall survive the termination other party hereto resulting from any knowing and intentional breach of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have has been made (whether or not conditional) to the Company Seller or any of its stockholders shareholders or any Person shall have has publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least qualification) and thereafter (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company Purchaser Parent pursuant to Section 8.3(a8.01(b), by Purchaser Parent or Seller pursuant to Section 8.01(c) or by Purchaser Parent pursuant to Section 8.01(g) and (B) prior to the date that is 12 months after such termination, (1) Seller or any of its Subsidiaries enters into a binding and definitive agreement with respect to any Acquisition Proposal (an “Acquisition Agreement”) or (2) any Acquisition Proposal is consummated (solely for purposes of this Section 8.02(b)(i)(B), the term “Acquisition Proposal” shall have the meaning set forth in the definition of Acquisition Proposal contained in Section 6.07(a) except that all references to 25% shall be deemed references to 50%), then the Company Seller shall promptly, but in no event later than two days after the date of such termination, pay to Purchaser Parent a termination fee of equal to $12,825,000 38,658,859 (the “Termination Fee”) by wire transfer of same next day funds; providedfunds on the earlier of the date of execution of such Acquisition Agreement and the consummation of such Acquisition Proposal. In the event that (i) this Agreement is terminated by Purchaser Parent pursuant to Section 8.01(e) or (ii) this Agreement is terminated by Seller pursuant to Section 8.01(f), howeverthen, that in each such case, Seller shall pay Purchaser Parent the Termination Fee to be paid by wire transfer of same-day funds (x) in the case of a termination by Purchaser Parent pursuant to clause Section 8.01(e), within two Business Days after such termination, and (iiiy) shall be paid as set forth in the case of a termination by Seller pursuant to Section 8.3; provided8.01(f), furtherno later than the time of such termination. If the Termination Fee becomes payable pursuant to the terms of this Agreement, that no payment of the Termination Fee shall be payable to the sole and exclusive remedy of Purchaser Parent pursuant to clause (i) of this Section 8.5(b) unless against Seller and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement and their respective Representatives with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders breach of any covenant or otherwise not opposedagreement giving rise to such payment. Notwithstanding anything to the contrary herein, an Acquisition Proposal made the maximum aggregate amount of fees, liabilities or damages payable by or on behalf of such Person or Seller under this Agreement shall be equal to the Termination Fee and any of its Affiliates. The Company acknowledges that the agreements contained in amounts payable under this Section 8.5(b) are an integral part of 8.02(b). In no event shall Seller be obligated to pay the transactions contemplated by 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 any 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest Termination Fee on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentmore than one occasion.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pacific Premier Bancorp 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(e) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither SHBI nor Severn shall be relieved or released from any liabilities or damages to the second sentence of Section 9.1 shall survive the termination other party hereto resulting from any knowing and intentional breach of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have has been made (whether or not conditional) to the Company Severn or any of its stockholders shareholders or any Person shall have has publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least and thereafter (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company SHBI pursuant to Section 8.3(a8.01(b), by SHBI or Severn pursuant to Section 8.01(c) or by SHBI pursuant to Section 8.01(g) and (B) prior to the date that is 12 months after such termination, (1) Severn or any of its Subsidiaries enters into an acquisition agreement with respect to any Acquisition Proposal or (2) any Acquisition Proposal is consummated (solely for purposes of this Section 8.02(b)(i)(B), the term “Acquisition Proposal” shall have the meaning set forth in the definition of Acquisition Proposal contained in Section 6.07(a) except that all references to 20% shall be deemed references to 50%), then the Company Severn shall promptly, but in no event later than two days after the date of such termination, pay Parent to SHBI a termination fee of equal to $12,825,000 5.0 million (the “Termination Fee”) by wire transfer of same next day funds; providedfunds on the earlier of the date of execution of such acquisition agreement or the consummation of such Acquisition Proposal. In the event that (i) this Agreement is terminated by SHBI pursuant to Section 8.01(e) or (ii) this Agreement is terminated by Severn pursuant to Section 8.01(f), howeverthen, that in each such case, Severn shall pay SHBI the Termination Fee to be paid by wire transfer of same-day funds (x) in the case of a termination by SHBI pursuant to clause Section 8.01(e), within two Business Days after such termination, and (iiiy) shall be paid as set forth in the case of a termination by Severn pursuant to Section 8.3; provided8.01(f), furtherno later than the time of such termination. If the Termination Fee becomes payable pursuant to the terms of this Agreement, that no payment of the Termination Fee shall be payable to Parent pursuant to clause (i) the sole and exclusive remedy of this Section 8.5(b) unless SHBI against Severn and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement and their respective Representatives with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders breach of any covenant or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails agreement giving rise to promptly pay any 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in Section 7.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) this Section 7.5 and the provisions set forth sections identified in the second sentence of Section 9.1 8.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an (A) this Agreement is terminated (1) by either the Company or Parent pursuant to Section 7.2(b) (Stockholder No Vote or (2) by Parent pursuant to Section 7.4(d) (Company Breach), (B) a bona fide Acquisition Proposal shall have been made to the Company 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 (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least withdrawn, and (AC) 10 business days prior to within twelve (12) months after such termination of this Agreement, (1) the Company shall have entered into an Alternative Acquisition Agreement with respect to termination an Acquisition Proposal (substituting “50%” for “30%” in the definition of this Agreement pursuant to Section 8.2(a), “Acquisition Proposal”) which is ultimately consummated or (B2) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), there shall have been consummated an Acquisition Proposal;
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a7.4 (other than pursuant to Section 7.4(d) (Company Breach), or );
(Biii) this Agreement is terminated by the Company pursuant to Section 8.2(b7.2(b) (Stockholder No Vote) and, on or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under pursuant to Section 8.4(a7.4 (other than pursuant to Section 7.4(d) (Company Breach)) shall have occurred, or ;
(iiiiv) this Agreement is terminated by the Company pursuant to Section 8.3(a7.3(b), ; or
(v) this Agreement is terminated by the Company pursuant to Section 7.3(c); then the Company shall promptly, but in no event later than two days (2) Business Days after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Company Termination Fee”) , payable by wire transfer of same day funds; provided, however, .
(c) In the event that this Agreement is terminated by the Termination Fee to be paid Company or Parent pursuant to clause (iiiSection 7.2(a) shall be paid as and on such date all of the conditions set forth in Article VI have been satisfied or waived other than the conditions set forth in Section 8.3; provided6.1(b) (HSR Act) and Section 6.1(c) (FCC) and those conditions that by their nature can only be satisfied at the Closing, furtherthen Parent shall promptly, that but in no Termination Fee shall be payable to Parent pursuant to clause event later than two (i2) of this Section 8.5(b) unless and until within 12 months of such termination Business Days after the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months date of such termination, pay the Company or the Parent Termination Fee, payable by wire transfer of same day funds. In the event of any termination of its Subsidiaries this Agreement that triggers payment of the Parent Termination Fee, then Parent shall have entered into make an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended additional payment to the Company’s stockholders or otherwise not opposed, Company in an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. amount equal to the difference between $85,000,000 and the Parent Termination Fee as liquidated damages.
(d) The Company acknowledges and Parent each acknowledge that the agreements contained in this Section 8.5(b7.5(b) (i) are an integral part of the transactions contemplated by this Agreement, and that, (ii) without these agreements, the Company, Parent and Merger Sub would not enter into this AgreementAgreement and (iii) any amount payable pursuant to Section 7.5(b) does not constitute a penalty; accordingly, if the Company fails to promptly pay any the amount due pursuant to this Section 8.5(b), 7.5(b) and, in order to obtain such paymentpayment or performance, Parent or Merger Sub commences a suit which that results in a judgment against the Company for the fee set forth in Section 7.5(b) or any portion of such fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. as published in the Wall Street Journal 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. In the event the Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant hereto, payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub against the Company, its Subsidiaries or any of their respective former, current or future stockholders, directors, officers, employees, advisors or Affiliates for any damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach of or failure to perform hereunder or otherwise relating to or arising out of this Agreement; provided, however, that the Company Termination fee shall not be the sole and exclusive remedy of Parent or Merger Sub in the event that the failure to consummate the transactions contemplated by this Agreement are a result of the Company’s material breach of any representation, warranty, covenant or agreement set forth in this Agreement.
(e) The Company and Parent each acknowledge that the agreements contained in Section 7.5(c) (i) are an integral part of the transactions contemplated by this Agreement, (ii) without these agreements, the Company, Parent and Merger Sub would not enter into this Agreement and (iii) any amount payable pursuant to Section 7.5(c) does not constitute a penalty; accordingly, if Parent fails to promptly pay the amounts due pursuant to Section 7.5(c) and, in order to obtain such payment or performance, the Company commences a suit that results in a judgment against Parent for the fee set forth in Section 7.5(c) or any portion of such fee, 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 as published in the Wall Street Journal 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. In the event the Parent Termination Fee (and such additional amounts referenced in Section 7.5(c)) is paid to the Company in circumstances for which such fee is payable pursuant hereto, payment of the Parent Termination Fee (and such additional amounts referenced in Section 7.5(c)) shall be the sole and exclusive remedy of the Company against Parent, Merger Sub, their Subsidiaries or any of their respective former, current or future stockholders, directors, officers, employees, advisors or Affiliates for any damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach of or failure to perform hereunder or otherwise relating to or arising out of this Agreement; provided, however, that the Parent Termination Fee (and such additional amounts referenced in Section 7.5(c)) shall not be the sole and exclusive remedy of the Company in the event that the failure to consummate the transactions contemplated by this Agreement are a result of Parent’s or Merger Sub’s material breach of any representation, warranty, covenant or agreement set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Straight Path Communications Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them shall have any liability of any nature whatsoever hereunder, or Affiliates)in connection with the transactions contemplated hereby, except that Sections 6.4, 6.11 and 9.4 and this Section 8.2 and 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 that, notwithstanding anything to the contrary herein (i) except as otherwise provided hereinincluding Section 8.2(f)), no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto of any liability liabilities or damages resulting from any willful arising out of knowing, intentional misrepresentation or intentional 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. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereoffraud.
(b) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay to Buyer an amount equal to $5,000,000 (the “Termination Fee”).
(c) In the event (i) an Acquisition Proposal shall have been made to this Agreement is terminated by the Company or Buyer pursuant to Section 8.1(e) or Buyer pursuant to Section 8.1(b) or 8.1(c), and (ii) on or before the date of any of its stockholders or any Person shall have publicly announced an intention such termination, (whether or not conditionalx) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly disclosed or announced and not withdrawn without qualification (x) in the case of a termination pursuant to clause (x) of Section 8.1(e), at least 10 days before the Company Meeting, (Ay) 10 business days prior to in the case of a termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a8.1(b), before the applicable breach by the Company, or (Bz) five business days prior to in the case of a termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b8.1(c) or clause (y) of Section 8.1(e), before the date specified therein, and thereafter (iii) within one (1) year of such termination, the Company shall consummate a transaction or have entered into a definitive agreement for a transaction with any third party that involves the consummation of a transaction described in the definition of Acquisition Transaction (but replacing references to “15% or more” with “50% or more”), then the Company shall pay to Buyer, upon consummation of such transaction, the Termination Fee less the Expense Amount if previously paid.
(d) If this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a8.1(e) or 8.2(b), (ii) this Agreement is terminated (A) by Parent Buyer pursuant to Section 8.4(a8.1(b), but the Termination Fee (or (Bany portion thereof) by has not been paid and is not then payable, the Company pursuant to Section 8.2(bshall pay at the direction of Buyer as promptly as practicable (but in any event within two (2) andBusiness Days after receipt of Buyer’s request therefor), $1,000,000 (the “Expense Amount”) on or prior to the date account of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(aexpenses and opportunity costs incurred by Buyer and its Subsidiaries in connection with this Agreement and the transactions contemplated by this Agreement.
(e) shall have occurred, or (iii) If this Agreement is terminated by the Company pursuant to Section 8.3(a8.1(b), then Buyer shall pay at the direction of the Company shall promptly, as promptly as practicable (but in no any event later within two (2) Business Days after receipt of the Company’s request therefor) the Termination Fee.
(f) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than two days (2) Business Days after the date of the event giving rise to the obligation to make such terminationpayment, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that unless the Termination Fee to be paid is payable as a result of the termination of this Agreement by the Company pursuant to clause (iii) shall be paid as set forth Section 8.1(g), in Section 8.3; providedwhich case, further, that no 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 Parent an account designated by Buyer or the Company, as the case may be. The payment of the Termination Fee and/or Expense Amount by the Company pursuant to clause (iSection 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. The payment of the Termination Fee by Buyer pursuant to Section 8.5(b8.2(e) unless shall be the sole and until within 12 months exclusive remedy of such termination the Company shall have entered into an Alternate Acquisition Agreement and Company Bank in connection with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes termination of this AgreementAgreement under the circumstances described thereunder.
(g) Buyer, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person ifBuyer Bank, within 12 months of such terminationMerger Sub, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The and Company acknowledges Bank acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub the parties would not enter into this Agreement; accordingly. Accordingly, if the Company or Buyer, as the case may be, fails promptly to promptly pay any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Parent Buyer or Merger Sub the Company, as the case may be, commences a suit which results in a judgment against the Company or Buyer for the fee, to which reference is made amount set forth in this Section 8.5(b)8.2, the Company or Buyer, as the case may be, shall pay to Parent or Merger Sub the other party its costs and expenses (including reasonable attorneys’ feesfees and expenses) in connection with such suit, together with interest on the amount of the fee all amounts due pursuant to this Section 8.2 at an interest rate equal to the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentplus 300 basis points.
Appears in 1 contract
Sources: Merger Agreement (Massbank Corp)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 7.2(b) and 7.2(c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful fraud or intentional breach Willful and Material Breach of this Agreement and (ii) the provisions set forth in Section 5.12 (Expenses), this Section 7.2 and the second sentence of Section 9.1 8.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated:
(i) an by either the Company or Parent pursuant to Section 7.1(b) (Outside Date), by either the Company or Parent pursuant to Section 7.1(c) (Requisite Company Vote Not Obtained), or by Parent pursuant to Section 7.1(e) (Company Breach), and, in each case,
(A) a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders Subsidiaries or made publicly to the Shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A1) 10 business days prior to termination the date of this Agreementtermination, with respect to any termination of this Agreement pursuant to Section 8.2(a7.1(b) (Outside Date), or (B2) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Shareholders Meeting, any event giving rise with respect to Parent’s right termination pursuant to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a7.1(c) (Requisite Company Vote Not Obtained)), then the Company shall promptly, but in no event later than two days and
(B) within twelve months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approvedapproved or recommended to the Shareholders or otherwise not opposed, adopted an Acquisition Proposal which Acquisition Proposal is subsequently consummated (even if after such twelve month period); provided, (X) that, for the purposes of this Section 7.2(b)(i), the references to “15%” in the definition of Acquisition Proposal shall be deemed to be reference to “50%” and (Y) for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months after such termination, the Company or any of its Subsidiaries shall 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 the Company’s stockholders Shareholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates;
(ii) by Parent pursuant to Section 7.1(g) (Change of Recommendation); or
(iii) by the Company pursuant to Section 7.1(c) (Requisite Company Vote Not Obtained) and, on or prior to the date of the Shareholders Meeting, any event giving rise to Parent’s right to terminate pursuant to Section 7.1(g) shall have occurred; then, (1) in the case of Section 7.2(b)(i), within two (2) Business Days after consummation of such Acquisition Proposal, (2) in the case of Section 7.2(b)(ii), within two (2) Business Days after termination of this Agreement, and (3) in the case of Section 7.2(b)(iii), concurrently with the termination of this Agreement, the Company shall pay a termination fee of $8,000,000, plus all reasonable and documented out-of-pocket costs and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, which reimbursed costs and expenses shall not exceed $1,000,000 in the aggregate (collectively, the “Company Termination Fee”), to Parent in each case by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall the Company be obligated to pay the Company Termination Fee on more than one (1) occasion.
(c) If the Company or Parent terminates this Agreement under Section 7.1(b) or Section 7.1(d) after the Requisite Company Vote has been obtained and, in either case, at the time of such termination, the condition set forth in Section 6.1(b) has not been satisfied, then within two (2) Business Days after such termination, Parent shall pay a termination fee of $9,500,000 (the “Parent Termination Fee”), to Company by wire transfer of immediately available funds to an account designated in writing by Company. In no event shall Parent be obligated to pay the Parent Termination Fee on more than one (1) occasion.
(d) The Company acknowledges parties acknkowledge that the agreements contained in this Section 8.5(b7.2(b) and Section 7.2(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no party would not enter have entered into this Agreement; accordingly, if the (i)the Company fails to promptly timely pay any the amount due pursuant to this Section 8.5(b7.2(b) or (ii) Parent fails to timely pay the amount due pursuant to Section 7.2(c) (any such amount due, a “Termination Payment”), and, in order to obtain such payment, Parent or Merger Sub the party entitled to receive such payment (the “Recipient”) commences a suit which that results in a judgment against the Company party obligated to make such payment (the “Payor”) for the feeapplicable Termination Payment, to which reference is made in this Section 8.5(b)or any portion thereof, the Company Payor shall pay to Parent or Merger Sub the Recipient its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank Citibank, N.A. in effect on the date such Termination Payment was required to be made from the date such payment was required to be made through the date of payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement shall will terminate and 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, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided hereinthe provisions set forth in this Section 7.5, no such the reimbursement and indemnification provisions set forth in Section 5.18, Article VIII and the Confidentiality and Non-Disclosure Agreement will survive the termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) nothing herein will relieve the provisions set forth Company, Parent or Merger Sub from liability for any willful action or omission to act occurring prior to such termination, undertaken with the Knowledge of such party that the taking of such act or failure to act would result in the second sentence a breach of Section 9.1 shall survive the termination any of its representations, warranties or covenants in this Agreement. No termination of this Agreement shall be effective unless , and until notice of such termination shall have been given by the terminating any aggrieved party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not will be entitled to terminate this Agreement all rights and remedies at law or receive any notice thereofin equity, including the right of the aggrieved party to seek the benefit of its bargain (in the case of the Company, the benefit expected by the Company Stockholders).
(b) In The Company will pay to Parent or one or more Persons designated by Parent a termination fee of $137,300,000 in cash (the event that “Company Termination Fee”) if this Agreement is terminated as follows:
(i) by the Company pursuant to Section 7.3(a), such payment to be made before or concurrently with such termination; or
(ii) by Parent pursuant to Section 7.4(b), such payment to be made within two Business Days following such termination, unless at the time of Parent’s termination, the Company has provided notice of termination pursuant to Section 7.3(b), in which case no amount shall be payable pursuant to this Section 7.5(b)(ii); or
(iii) if (A) this Agreement is terminated pursuant to Section 7.2(b), Section 7.2(c) or Section 7.4(a) (in the case of Section 7.4(a) where the breach arises out of or results from an intentional act by the Company), (B) a Company Acquisition Proposal has been publicly announced and not withdrawn at any time prior to the date of such termination, and (C) within twelve months after the date of such termination, the Company enters into a definitive agreement relating to a Company Acquisition Proposal and such Company Acquisition Proposal is ultimately consummated (whether or not during the foregoing 12 month period) or the Company consummates a Company Acquisition Proposal, in which case (upon the occurrence of all of the events described in clauses (A) through (C) of this Section 7.5(b)(iii)), the Company will pay to Parent the Company Termination Fee on a date not later two Business Days after demand by Parent; provided, however, that for purposes of this Section 7.5(b)(iii), the references in the definition of Company Acquisition Proposal to “15% or more” will be deemed to be references to “more than 50%” and “less than 85%” will be deemed to be references to “less than 50%”; or
(iv) by Parent pursuant to Section 7.4(c), such payment to be made within two Business Days following such termination.
(c) The Company will pay to Parent or one or more Persons designated by Parent by way of reimbursement of the reasonable out-of-pocket costs incurred by Parent in connection with the transactions contemplated by this Agreement up to $20,000,000 if the Agreement is terminated by the Company or Parent pursuant to Section 7.2(c). Any Company Termination Fee that subsequently becomes payable hereunder shall have been made be reduced by any amount previously paid by the Company pursuant to this Section 7.5(c).
(d) Parent will pay to the Company or any of its stockholders one or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to more Persons designated by the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least a termination fee of $250,000,000 in cash (Athe “Parent Termination Fee”) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter if this Agreement is terminated as follows:
(i) by either Parent or the Company pursuant to Section 8.2(a7.2(b), if, as of the time of such termination, the only conditions to Closing set forth in Article VI that have not been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied if the Closing Date were the date the notice of termination is delivered) are those set forth in Section 6.1(b) (solely with respect to Antitrust Laws) or 8.2(b), (iiSection 6.1(d) this Agreement and such failure to be satisfied is terminated due to (A) by Parent the failure to receive any required consent or approval (including the expiration of any waiting period and any extension thereof under the HSR Act) from a Specified Governmental Entity pursuant to Section 8.4(a), Antitrust Laws or (B) any action (including the enacting, issuing, entry or promulgation of Orders or Laws or instituting of proceedings) by any Specified Governmental Entity to enjoin or otherwise prohibit the Merger or make it illegal pursuant to Antitrust Laws, such payment to be made concurrently with such termination, in the case of a termination by Parent, or within two Business Days following such termination, in the case of a termination by the Company; or
(ii) by Parent or the Company pursuant to Section 8.2(b) and7.2(a), on or prior to if the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement Order is terminated by the Company pursuant to Section 8.3(a)Antitrust Laws, then the Company shall promptly, but in no event later than two days after the date of such payment to be made concurrently with such termination, pay Parent in the case of a termination fee by Parent, or within two Business Days following such termination, in the case of $12,825,000 a termination by the Company.
(the “Termination Fee”e) All amounts paid pursuant to this Section 7.5 will be by wire transfer of same day funds; providedimmediately available funds to an account directed by the party hereto entitled to payment.
(f) Each of the Company, however, Parent and Merger Sub acknowledges that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) 7.5 are an integral part of the transactions contemplated by this Agreement, and that, (ii) without these agreements, Parent and Parent, Merger Sub and the Company would not enter into this Agreement; accordingly, if (iii) the Company fails to promptly pay any Termination Fee is not a penalty, but rather constitutes damages in a reasonable amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, that will compensate Parent or and Merger Sub commences in the circumstances in which such Company Termination Fee is payable, and (iv) the Parent Termination Fee is not a suit which results penalty, but rather constitutes damages in a judgment against reasonable amount that will compensate the Company for in the fee, circumstances in which such Parent Termination Fee is payable.
(g) In the event that the Company shall fail to which reference is made in this Section 8.5(b)pay the Company Termination Fee when due, the Company shall pay to reimburse Parent or and Merger Sub its for all reasonable costs and expenses actually incurred or accrued by them (including attorneys’ feesreasonable fees and expenses of counsel) in connection with such suitthe collection under and enforcement of this Section 7.5, together with interest on the amount of the fee Company Termination Fee at the prime rate of Citibank N.A. as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment.
(h) In the event that Parent shall fail to pay the Parent Termination Fee when due, Parent shall reimburse the Company for all costs and expenses actually incurred or accrued by it (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 7.5, together with interest on the Parent Termination Fee at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment.
(i) Except as otherwise expressly contemplated by Section 7.5(a), notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated in accordance with Article VII and the Company Termination Fee is paid to Parent (or its designee) in accordance with the provisions of this Agreement, payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent, Merger Sub and each of their respective Affiliates against the Company, the Company’s Subsidiaries and any of their respective former, current and future Affiliates, and each of their respective directors, officers, employees, stockholders, controlling Persons, agents or Representatives for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the transactions contemplated by this Agreement or in respect of any other document or theory of law or equity or in respect of any representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(j) Except as otherwise expressly contemplated by Section 7.5(a), notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated in accordance with Article VII and the Parent Termination Fee is paid to the Company (or its designee) in accordance with the provisions of this Agreement, payment of the Parent Termination Fee shall be the sole and exclusive remedy of the Company and its Affiliates against the Parent, Parent’s Subsidiaries, the Financing Sources and any of their respective former, current and future Affiliates, and each of their respective directors, officers, employees, stockholders, controlling Persons, agents or Representatives for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the transactions contemplated by this Agreement or in respect of any other document or theory of law or equity or in respect of any representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(k) No Financing Source shall have any liability for any obligations or liabilities of the parties hereto or for any claim (whether in tort, contract or otherwise), based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any oral representations made or alleged to be made in connection herewith. Notwithstanding any provision of this Agreement, in no event shall the Company or any of its stockholders, partners, members, Affiliates, directors, officers, employees, controlling persons and other Representatives (each, a “Company Related Party”), and the Company agrees not to and to cause its Company Related Parties not to, (A) seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Financing Source or (B) seek to enforce the commitment against, make any claims for breach of the Financing commitment against, or seek to recover monetary damages from, or otherwise ▇▇▇, the Financing Sources for any reason, including in connection with the Financing commitments (if any) or the obligations of Financing Sources thereunder. Nothing in this Section 7.5(k) shall in any way limit or qualify the obligations and liabilities of the parties to any commitment letter for a Financing to each other or in connection therewith.
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 shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 to pay the Termination Fee or damages resulting from any willful or intentional breach of Parent Fee pursuant to this Agreement Section 8.5 and (ii) the provisions set forth in the second sentence of this Section 9.1 8.5 and Article IX shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 8.2(a) (the section relating to the Company Termination Date), or any of its stockholders or Section 8.2(b) (the section relating to failure to receive stockholder approval), (y) any Person shall have publicly announced an intention (whether or not conditional) to make an made a bona fide Acquisition Proposal with respect after the date of this Agreement but prior to the Company such termination, and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to such termination of this Agreementor, with respect to a termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), prior to the Stockholders Meeting and thereafter this Agreement is terminated by either Parent or (z) within 12 months of such termination the Company pursuant shall have entered into a definitive agreement with respect to Section 8.2(aan Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (z) or 8.2(bthe references to "20%" in the definition of "Acquisition Proposal" shall be deemed to be references to "50%"), ;
(ii) this Agreement is terminated (A) by Parent pursuant to clause (a) of Section 8.4(a8.4 (the section relating to a Change of Recommendation), or (B) 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) shall have occurred, or ;
(iii) (x) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 ) (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee section relating to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement) or (y) Section 8.3(c) (the section relating to a Change of Recommendation); or
(iv) this Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended is terminated pursuant to Section 8.4(b) as a result of a knowing and willful material breach of this Agreement by the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Merger Agreement (Nbty 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 VIIISection 7.1, this Agreement shall immediately become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates)effect; provided, however, that Section 5.4(b) (iAccess to Information; Confidentiality), Section 5.11 (Public Announcements), this Section 7.2, Section 7.3 (Fees and Expenses), Article VIII (General Provisions) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this and the Confidentiality Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No Notwithstanding the foregoing or any other provision of this Agreement to the contrary, none of Parent, Purchaser or the Company shall be relieved or released from any liabilities or damages arising out of its Willful Breach of any provision of this Agreement or any other agreement delivered in connection herewith. For the avoidance of doubt, (a) the failure of Parent or Purchaser to consummate the Offer at the time required by Section 1.1(i) after all the Offer Conditions have been satisfied or waived or the Merger on the date required by Section 2.2 after the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing and which are capable of being satisfied on the Closing Date, assuming for purposes hereof that the date of termination is the Closing Date) have been satisfied or waived shall constitute a Willful Breach by Parent and Purchaser, and Parent shall be liable to the Company for such breach as provided herein notwithstanding any termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal Confidentiality Agreement shall have been made to survive the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant and shall remain in full force and effect in accordance with its terms. Notwithstanding anything to Section 8.2(a), or (B) five business days prior to termination of the contrary provided in this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or including in the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) foregoing provisions of this Section 8.5(b) unless and until within 12 months of such termination the Company 7.2, nothing shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” relieve any party for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentfraud.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by any of Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them shall have any liability of any nature whatsoever hereunder, or Affiliates)in connection with the transactions contemplated hereby, except that Sections 6.5, 6.20 and 9.4 and this Section 8.2 and 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 (i) except as otherwise provided that, notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(h) or by the Company pursuant to Section 8.1(i), the Company shall pay to Buyer an amount equal to the sum of (i) $2,478,000 (the "Termination Fee"), plus (ii) an Acquisition Proposal shall have been made amount not to exceed, in the aggregate, $375,000 for the documented out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts and consultants, incurred by Buyer or on its respective behalf in connection with or related to the preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the "Buyer Expenses").
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.1(e) or any Section 8.1(c) due to the failure to obtain the approval of its stockholders or any Person shall have publicly announced an intention the Company's shareholders required for the consummation of the Merger, and (whether or not conditionali) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior announced, disclosed or otherwise communicated to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), Board and (ii) this Agreement is terminated within twelve (A12) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement a definitive agreement with respect to, or the Company shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposedconsummated, an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the sum of the Termination Fee, plus the Buyer Expenses.
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(b) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board and (ii) within twelve (12) months of such termination, the Company shall have entered into a definitive agreement with respect to, or the Company shall have consummated, an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the sum of the Termination Fee, plus the Buyer Expenses.
(e) Any payment of the Termination Fee and/or the Buyer Expenses required to be made pursuant to this Section 8.2 shall be made not more than five (5) Business Days after the date of the event giving rise to the obligation to make such payment, unless such amount is payable as a result of the termination of this Agreement by the Company pursuant to Section 8.1(i), in which case, such amount 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 Buyer. No payment of the Termination Fee and/or Buyer Expenses under this Section 8.2 shall limit in any respect any rights or on behalf remedies available to Buyer relating to any breach or failure of such Person the Company to perform any representation, warranty, covenant or any of its Affiliates. The agreement set forth in this Agreement resulting, directly or indirectly, in the right to receive the Termination Fee and/or Buyer Expenses under this Section 8.2.
(f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub Buyer would not enter into this Agreement; accordingly. Accordingly, if the Company fails promptly to promptly pay any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Parent or Merger Sub Buyer commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of 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 shall become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.07(g) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither First Foundation nor the Company shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The parties hereto agree that the Company shall pay First Foundation the sum of $11.9 million (the “Termination Fee”) as follows:
(i) if this Agreement is terminated by First Foundation pursuant to Section 8.01(f) (Failure to Recommend; Etc.) or Section 8.01(g) (Certain Tender or Exchange Offers), the Company shall pay the Termination Fee to First Foundation on the second sentence of Section 9.1 shall survive (2nd) Business Day following the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.;
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) if this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(h) (Superior Proposal), the Company shall pay the Termination Fee to First Foundation on the date of the termination of this Agreement; or
(iii) if this Agreement is terminated (A) by First Foundation pursuant to Section 8.01(b) (Breach), (B) by either First Foundation or the Company pursuant to Section 8.01(c) (Delay) and at the time of such termination the Company Shareholder Approval shall not have been obtained, or (C) by either First Foundation or the Company pursuant to Section 8.01(e)(i) (No Shareholder Approval), and in the case of any termination pursuant to clause (A), (B) or (C), an Acquisition Proposal shall have been publicly announced and communicated or made known to the executive officers of the Company or the Company Board (or any Person shall have publicly announced and communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention 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 (C), or prior to the date of termination, in the case of clause (A) or (B), then (1) if within twelve (12) months after such termination the Company enters into an agreement with respect to a Control Transaction, then the Company shall promptlypay to First Foundation the Termination Fee on the date of execution of such agreement and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with the Company within twelve (12) months after such termination, but in no event later than two days after then the Company shall pay to First Foundation the Termination Fee on the date of such terminationconsummation of such Control Transaction. As used in this Section 8.02(b), pay Parent a termination fee “Control Transaction” means (i) the acquisition by any Person whether by purchase, merger, consolidation, sale, transfer or otherwise, in one transaction or any series of $12,825,000 transactions, of a majority of the voting power of the outstanding securities of the Company or Company Bank or a majority of the assets of the Company or Company Bank, (ii) any issuance of securities resulting in the “Termination Fee”ownership by any Person of more than fifty percent (50%) of the voting power of the Company or by wire transfer any Person other than the Company or Company Bank of same day funds; provided, however, that more than fifty percent (50%) of the Termination Fee to be paid pursuant to clause voting power of Company Bank or (iii) shall be paid as set forth in Section 8.3; providedany merger, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, consolidation or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, other business combination transaction involving the Company or any of its Subsidiaries as a result of which the shareholders of the Company cease to own, in the aggregate, at least fifty percent (50%) of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect toaccount designated by First Foundation. Under no circumstances shall the Company be obligated to pay the Termination Fee on more than one occasion, or and the parties hereby acknowledge and agree that in the event the Termination Fee becomes payable and is paid by the Company pursuant to this Section 8.02, the Termination Fee shall have consummated or shall have approved, adopted or recommended to the Companybe First Foundation’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliatessole and exclusive remedy under this Agreement.
(c) The Company acknowledges and First Foundation agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions Transaction contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement First Foundation would not enter have entered into this Agreement; accordingly, if and that such amount does not constitute a penalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay any First Foundation the amount due pursuant to this Section 8.5(b), and, under paragraph (b) above within the time periods specified in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(bparagraph (b), the Company shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by First Foundation in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamount, provided First Foundation prevails on the merits, together with interest on the amount of the fee any such unpaid amount at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment amount was required to be made through paid until the date of actual payment..
Appears in 1 contract
Effect of Termination and Abandonment. (a) 5.5.1. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIV, this Agreement (other than as set forth in Section 6.1) shall become void and of no effect with no liability on the part of any either party hereto (or of any of its Representatives or Affiliatestheir Representatives); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto either Parent or the Company of any liability or for damages resulting from any willful or and intentional breach of this Agreement and or from any obligation to pay, if applicable, the amounts payable pursuant to Section 5.5.2 or 5.5.3.
(a) If:
(i) Parent shall terminate this Agreement pursuant to clauses (i) or (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination 5.4;
(ii) any Person shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an made a bona fide Acquisition Proposal shall have been made relating to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Acquisition Proposal with respect (or an intention to the Company and make such an Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (AProposal) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (iix) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of Section 5.2, and (y) within 9 months after the termination of this Agreement, the Company enters into an agreement in respect of any Acquisition Proposal or a transaction pursuant to an Acquisition Proposal is consummated;
(iii) Parent shall terminate this Agreement pursuant to clause (iii) of Section 8.5(b5.4 and either (x) unless and until within 12 months of such termination prior thereto a bona fide Acquisition Proposal relating to the Company shall have entered into an Alternate Acquisition Agreement with respect to, been made by any Person to the Company or a Person shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, publicly announced such an Acquisition Proposal (substituting “50%” for “20%” in the definition of “or an intention to make such an Acquisition Proposal”); provided that for purposes ) or (y) within 9 months after termination of this Agreement, the Company enters into an agreement in respect of an Acquisition Proposal or a transaction pursuant to an Acquisition Proposal is consummated;
(iv) either the Company or Parent shall terminate this Agreement pursuant to clause (iii) of Section 5.2 and (x) prior thereto a bona fide Acquisition Proposal relating to the Company shall have been made or a Person shall have publicly announced such an Acquisition Proposal Company (or any intention to make such an Acquisition Proposal) and (y) within 9 months after the termination of this Agreement, the Company enters into an agreement in respect of any Acquisition Proposal or a transaction with respect to an Acquisition Proposal is consummated; or
(v) the Company shall terminate this Agreement pursuant to clauses (ii) or (iii) of Section 5.3, then in any case as described in clause (i), (ii), (iii), (iv) or (v) the Company shall pay to Parent (by wire transfer of immediately available funds not later than, in the case of clauses (i), (iv) and (v) the date of termination of this Agreement or, in the case of clauses (ii) and (iii), the date of the agreement in respect of the Acquisition Proposal or, if earlier, consummation of the transaction in respect thereof) an amount equal to $13 million. The termination of this Agreement by the Company under Sections 5.3(ii) and 5.3(iii) hereto shall not be deemed to effective until such time as the payment required by this Section shall have been “publicly withdrawn” received by any Person if, within 12 months of such termination, Parent.
5.5.3. If Parent or the Company or any shall terminate this Agreement pursuant to clause (iv) of its Subsidiaries Section 5.2, Parent shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended pay to the Company’s stockholders or otherwise not opposed, Company (by wire transfer of immediately available funds no later than the date of termination of this Agreement) an Acquisition Proposal made by or on behalf of such Person or any of its Affiliatesamount equal to $3.0 million. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b) Sections 5.5.2 and 5.5.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the parties would not enter into this Agreement; accordingly, if the Company or Parent fails promptly to promptly pay any amount amounts due pursuant to this Section 8.5(b)Sections 5.5.2 or 5.5.3, as the case may be, and, in order to obtain such the payment, either the Company or Parent or Merger Sub commences a suit which results in a judgment against the Company other party for the fee, to which reference is made payments set forth in this Section 8.5(b)5.5.2 or 5.5.3, as the case may be, the Company prevailing party shall pay be entitled to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) in connection with such suitits suit from the non-prevailing party, together with interest on the amount amounts due from each date for payment until the date of the fee payment at the prime rate of Citibank Citibank, N.A. in effect on the date such the payment was required to be made through the date of paymentplus 2 percent.
Appears in 1 contract
Sources: Merger Agreement (Cgi Group Inc)
Effect of Termination and Abandonment. (a) Any party terminating this Agreement pursuant to this Article VIII shall give written notice of such termination to each other party in accordance with this Agreement specifying the provision or provisions hereof pursuant to which such termination is being effected. In the event of termination of this Agreement and the abandonment of the Merger pursuant to as provided in this Article VIII, this Agreement shall forthwith 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, that (i) except as otherwise provided hereinsubject to Section 8.5(e), no such termination shall relieve any party hereto of any liability or damages to the other party resulting from any willful or intentional breach of this Agreement and Agreement, (ii) notwithstanding anything in the foregoing to the contrary, the provisions set forth in this Section 8.5 and the provisions identified in the second sentence of Section 9.1 shall survive the termination of this Agreement. No Agreement and (iii) the obligations of the parties under the Escrow Deposit Agreement shall survive the termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofin accordance with its terms.
(b) In The Company shall, at the event that applicable time specified in this Section 8.5(b), pay to Parent a fee equal to $105,000,000 (the “Company Termination Fee”) if this Agreement is terminated pursuant to:
(i) an Acquisition Proposal shall have been made to Section 8.3(b);
(ii) Section 8.4(a);
(iii) Section 8.4(b) as a result of a willful or intentional breach of Sections 6.2, 6.4 or 6.5 (and not as a result of any other breach); or
(iv) Section 8.2(a) or Section 8.2(b) by either the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least Parent, but only if: (A) 10 business days prior to in the case of a termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), (1) the Stockholders Meeting to obtain the Requisite Company Vote has not been held prior to the time of such termination and (2) a bona fide Acquisition Proposal was made known to the Company, the Company Board, any committee of the Company Board or senior management of the Company after the date of this Agreement and was not withdrawn or rejected in writing by the Company Board, or was publicly proposed or publicly disclosed to the Company’s stockholders, and was not publicly withdrawn, prior to the time of such termination), (B) five business days prior to in the case of a termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), a bona fide Acquisition Proposal was publicly proposed or publicly disclosed to the Company’s stockholders, and thereafter was not publicly withdrawn, prior to the taking of a vote to adopt this Agreement is terminated by either Parent at the Stockholders Meeting or any postponement or adjournment thereof and (C) in each of the foregoing cases in clauses (A) and (B), the conditions specified in clause (v) below for the payment of the Company Termination Fee in the event of a termination pursuant to this Section 8.2(a8.5(b)(iv) or 8.2(bhave been satisfied.
(v) If the Company is required to pay Parent the Company Termination Fee pursuant to clause (i), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by of Section 8.5(b), the Company pursuant to Section 8.3(a), then the Company Termination Fee shall promptly, but in no event be payable not later than two days Business Days after the date termination of such terminationthis Agreement, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) in each case by wire transfer of same day funds; provided, however, that the Termination Fee immediately available funds to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no an account designated by Parent. The Company Termination Fee shall not be payable to Parent pursuant to clause (i) of this Section 8.5(b8.5(b)(iv) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person ifuntil, within 12 months of after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect topursuant to which the Company or any of its Subsidiaries has agreed to undertake, solicit stockholder approval for or consummate, or shall have consummated consummated, a transaction of the type referred to in the definition of “Acquisition Proposal” (which need not be the same Acquisition Proposal described in clause (iv) above) or, in the case of an Acquisition Proposal made by way of a tender offer or exchange offer, shall have approved, adopted or not recommended to that the Company’s stockholders reject such tender offer or otherwise exchange offer within the period specified in Rule 14e-2(a) under the Exchange Act (for purposes of this Section 8.5(b), substituting “50%” for “10%” in all instances in which it appears in the definition of “Acquisition Proposal”); provided that, for purposes of this Section 8.5(b), an Acquisition Proposal shall be deemed not opposedto have been “publicly withdrawn” by any Person if, within 12 months after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement providing for the consummation of, or shall have consummated, an Acquisition Proposal made by or on behalf of the Person who made such initial Acquisition Proposal or any of its Affiliates or, in the case of a new Acquisition Proposal made by way of a tender offer or exchange offer by or on behalf of such Person or any of its Affiliates. The Company acknowledges , shall have not recommended that the agreements contained Company’s stockholders reject such tender offer or exchange offer within the period specified in this Section 8.5(bRule 14e-2(a) are an integral part under the Exchange Act. In the case where a Company Termination Fee is payable by the Company to Parent pursuant to the immediately preceding sentence, the Company will pay to Parent the Company Termination Fee upon the earlier of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if date that the Company fails to promptly pay any amount due pursuant to enters into the relevant Alternative Acquisition Agreement or the consummation of the relevant transaction. For the avoidance of doubt, for purposes of this Section 8.5(b), anda sale of capital stock of any of the Company’s Subsidiaries to the public in an initial public offering (including through an underwritten offering) after the termination of this Agreement shall not, in order to obtain such paymentand of itself and absent another transaction qualifying as an “Acquisition Proposal” hereunder, Parent or Merger Sub commences a suit which results in a judgment against cause the Company for Termination Fee to become payable.
(c) Parent shall, at the fee, to which reference is made applicable time specified in this Section 8.5(b8.5(c), pay to the Company a fee equal to $210,000,000 (the “Parent Termination Fee”) if this Agreement is terminated pursuant to:
(i) Section 8.2(a) by either the Company or Parent if, at the time of such termination, all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, provided that each of such conditions is capable of being satisfied at the Closing), except for any one or more of the conditions set forth in Section 7.1(c), Section 7.1(e) (solely with respect to an applicable Law or Order from a PRC Governmental Entity or any other Governmental Entity in the PRC, Hong Kong, Macau or Taiwan) or Section 7.2(c) (solely with respect to any PRC Regulatory Approvals);
(ii) Section 8.2(c) (solely with respect to an applicable Law or Order from a PRC Governmental Entity or any other Governmental Entity in the PRC, Hong Kong, Macau or Taiwan) by either the Company or Parent; or
(iii) Section 8.3(a). If Parent is required to pay the Company a Parent Termination Fee, Parent and the Company shall deliver a joint written instruction to the Escrow Agent within two Business Days after termination of this Agreement, instructing the Escrow Agent to pay to the Company, directly or out of the Parent Escrow Amount, the Parent Termination Fee, by wire transfer of immediately available funds in U.S. Dollars to an account designated by the Company; provided that, if Parent has paid or caused to be paid to the Company or any of its designated Affiliates either (i) the Parent Termination Fee, together with any other amounts payable by Parent to the Company with respect thereto pursuant to Section 8.5(d)(ii), or (ii) the full amount of damages under an arbitration award sought in accordance with the terms of Section 9.5(b); in each case, whether directly or out of the Parent Escrow Amount, the funds remaining in the Parent Escrow Amount, if any, shall be simultaneously released and returned to Parent or Merger Sub any of its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentdesignated Affiliates.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Any termination of this Agreement under this Article IX will be effective immediately upon the delivery of a valid written notice of the terminating Party to the other Parties and, if then due, payment of the termination fee required pursuant to this Section 9.5. 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 VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided hereinsubject to Section 9.5(g), no such termination shall relieve any party hereto the Company of any liability or damages to the other Parties resulting from fraud or any willful or intentional breach Willful and Material Breach of this Agreement prior to such termination and (ii) the provisions set forth in this Section 9.5 and the second sentence of Section 9.1 10.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) (A) this Agreement is terminated (I) by either the Company or Parent pursuant to Section 9.2(a), (II) by either the Company or Parent pursuant to Section 9.2(b) or (III) by Parent pursuant to Section 9.4(c) and (B) (I) before receipt of the Requisite Company Vote an Acquisition Proposal shall have been made known to the Company Board, the Company or any of its stockholders Subsidiaries or shall have been publicly made or disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (AII) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date within twelve months of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”x) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i)(B)(I)) or (y) there shall have been consummated an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i)(B)(I)) (substituting in both instances “50%” for “2015%” in the definition of “Acquisition Proposal”);
(ii) this Agreement is terminated by Parent pursuant to Section 9.4 (other than pursuant to Section 9.4(c)); provided that for purposes of or
(iii) this AgreementAgreement is terminated by the Company pursuant to Section 9.3(a); then the Company shall promptly, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months but in no event later than two Business Days after the date of such termination, pay a termination fee of $109,000,000 (the “Termination Fee”) to P2 Capital Partners, LLC and Silver Lake Management Company V, L.L.C. (or their respective designees) in such amounts as Parent notifies to the Company in writing (which amounts collectively shall not, for the avoidance of doubt, exceed the Termination Fee) (provided, however, that the Termination Fee to be paid pursuant to (I) clause (i) shall be paid immediately prior to or substantially concurrent with the earliest of (x) the entry by the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated (y) consummation or shall have approved, adopted approval or recommended recommendation to the Company’s stockholders of, or (z) otherwise not opposednon-opposition to, such an Acquisition Proposal made by (substituting “50%” for “15%” in the definition thereof) (whether or on behalf not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i)(B)(I)) within twelve months of such Person termination, and (II) clause (iii) shall be paid as set forth in Section 9.3(a)) payable by wire transfer of same-day funds. Notwithstanding the foregoing, the Termination Fee shall mean a fee of $81,700,000 instead of $109,000,000 in the event that this Agreement is terminated pursuant to Section 9.3(a) and the fee is paid on or any prior to the No-Shop Period Start Date. In no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) The Company shall reimburse P2 Capital Partners, LLC and Silver Lake Management Company V, L.L.C. (or their respective designees) for the documented out-of-pocket expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement including the Financing (including fees and expenses of its Affiliatescounsel, accountants, investment bankers, other advisors and financing sources) (i) subject to an aggregate cap on reimbursement of $6,800,000, if the Company or Parent shall terminate this Agreement pursuant to Section 9.2(b), the Company shall terminate this Agreement pursuant to Section 9.3(a) or Parent shall terminate this Agreement pursuant to Section 9.4(a), 9.4(b) or 9.4(c) and the Termination Fee shall be payable by the Company as a result of such termination, or (ii) subject to an aggregate cap on reimbursement of $27,200,000, if the Company or Parent shall terminate this Agreement pursuant to Section 9.2(b) at a time when neither the Termination Fee nor the Parent Termination Fee is otherwise payable (although damages may still be payable by the Company) (the amount paid pursuant to either clause (i) or (ii), as applicable, the “Expense Reimbursement”). The Expense Reimbursement shall be paid either (x) in the case of clause (i), to the extent not previously paid, then concurrent with or promptly following payment of the Termination Fee, but in no event later than two Business Days after being notified of such by Parent or (y) in the case of clause (ii), in no event later than two Business Days after being notified of such by Parent, in each case by wire transfer of same-day funds to P2 Capital Partners, LLC and Silver Lake Management Company V, L.L.C. (or their respective designees) in such amounts as Parent notifies to the Company in writing (which amounts collectively shall not, for the avoidance of doubt, exceed the applicable Expense Reimbursement).
(d) In the event that this Agreement is terminated by the Company pursuant to Section 9.3(b) or 9.3(c), then Parent shall pay, or cause to be paid, to the Company an amount equal to $136,200,000 (such payment, the “Parent Termination Fee”), payable by wire transfer of same-day funds within three Business Days following such termination (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion).
(e) Each of the Parties hereto acknowledges that the agreements contained in this Section 8.5(bSections 9.5(b), 9.5(c) and 9.5(d) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the Parties hereto would not enter into this Agreement and the damages resulting from termination of this Agreement under circumstances where a Termination Fee or Parent Termination Fee and other amounts payable under Sections 9.5(b), 9.5(c) and 9.5(d) are payable are uncertain and incapable of accurate calculation and, therefore, the amounts payable pursuant to Sections 9.5(b), 9.5(c) and 9.5(d) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, 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 this Agreement; accordingly. Accordingly, if the Company a Party fails to promptly pay any the amount due by it pursuant to this Section 8.5(bSections 9.5(b), 9.5(c) or 9.5(d) and, in order to obtain such payment, Parent payment another Party or Merger Sub the other Parties hereto commences a suit which Proceeding that results in a judgment against the Company defaulting Party for the fee set forth in Sections 9.5(b), 9.5(c) or 9.5(d), or any portion of such fee, to which reference is made in this Section 8.5(b), the Company defaulting Party shall pay to Parent or Merger Sub its the other Parties their costs and expenses (including attorneys’ fees) in connection with such suitProceeding, together with interest on the amount of the fee at the prime rate of Citibank N.A. 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.
(f) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.5, each of the parties hereto expressly acknowledges and agrees that the Company’s right to terminate this Agreement and for the Company to receive payment of the Parent Termination Fee to the extent it is payable pursuant to this Section 9.5 shall constitute the sole and exclusive remedy of the Company and its Subsidiaries and their respective Affiliates and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the “Company Related Parties”) against Parent, the Guarantors and Parent’s and the Guarantors’ respective Affiliates, the Debt Financing Sources, any other potential debt or equity financing source and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates or any former, current or future general or limited partner, stockholder, equityholder, member, manager, director, officer, employee, agent or Affiliate of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages in respect of this Agreement (or the termination thereof) or the transactions contemplated by this Agreement (or the failure of such transactions to occur for any reason or for no reason) or any breach (whether willful, intentional, unilateral or otherwise) of any covenant or agreement or otherwise in respect of this Agreement or any oral representation made or alleged to be made in connection herewith, and, subject to Parent’s obligation to pay the Parent Termination Fee to the Company to the extent it is payable pursuant to Section 9.5(d) and Section 10.5, none of the Parent Related Parties shall have any liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement, the Limited Guarantees, the Financing Commitments or the transactions contemplated hereby and none of the Company, its Subsidiaries nor any other Company Related Party shall seek to recover any other damages or seek any other remedy, whether based on a claim at law or in equity, in contract, tort or otherwise, with respect to any losses or damages suffered in connection with this Agreement or the transactions contemplated hereby or any oral representation made or alleged to be made in connection herewith. In no event shall Parent be subject to (nor shall any Company Related Party seek to recover) monetary damages other than the Parent Termination Fee to the extent it is payable pursuant to Section 9.5(d) for any losses or other liabilities arising out of or in connection with breaches by Parent of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that any Company Related Party may have, including for a breach of Section 1.2 as a result of the Debt Financing not being available to be drawn down or otherwise arising from the Financing Commitments or in respect of any oral representation made or alleged to be made in connection herewith or therewith.
(g) While each of the Company and Parent may pursue both a grant of specific performance or other equitable relief under Section 10.5 and, following termination of this Agreement, the payment of monetary damage (which are only available with respect to a breach by the Company) or the Termination Fee or the Parent Termination Fee under this Section 9.5, as applicable, under no circumstances shall the Company or Parent be entitled to receive both (i) a grant of specific performance or other equitable relief that results in the Equity Financing being funded or the Closing occurring and (ii) monetary damages (which are only available with respect to a breach by the Company) or the payment of the Termination Fee or the Parent Termination Fee, as applicable, in connection with this Agreement or any termination of this Agreement (although Parent may be able to receive both monetary damages with respect to a Willful and Material Breach by the Company and the Termination Fee).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in Sections 8.05(b), 8.05(c) and 8.05(d) below, in the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article ARTICLE VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i1) except as otherwise provided herein, no such termination shall relieve any party hereto Party of any liability or damages resulting from any willful or intentional material breach of this Agreement (subject only, with respect to any such liability or damages of the Company or Parent, as applicable, to Sections 8.05(f) and 8.05(g)), and (ii2) the provisions set forth in Section 6.06(b), the second sentence provisions of Section 9.1 6.18 which by their express terms survive any termination, this Section 8.05 and ARTICLE IX and the relevant definitions shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated by Parent pursuant to Section 8.04(b), then the Company shall promptly, but in no event later than two (i2) Business Days after the date of such termination, pay to Parent a termination fee of $31,000,000 (the “Termination Fee”) by wire transfer of same day funds to an account designated by Parent.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 8.03(b), then the Company shall, prior to or concurrently with such termination, pay to Parent the Termination Fee by wire transfer of same day funds to an account designated by Parent.
(d) In the event that (1) this Agreement is terminated pursuant to Sections 8.02(a), 8.02(b) or 8.04(a), (2) an Acquisition Proposal shall have been made to received by the Company or any of its stockholders Representatives or any Person shall have publicly proposed or publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect (and, in the case of a termination pursuant to the Company and Section 8.02(b), such Acquisition Proposal or publicly proposed or announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days made prior to the Stockholders Meeting or termination of this Agreement (as applicable) and (3) within twelve (12) months following the termination of this Agreement, with the Company enters into a definitive written agreement providing for an Acquisition Proposal or an Acquisition Proposal is consummated, then, within two (2) Business Days after the earlier of entry into a definitive agreement in respect of the Acquisition Proposal or the consummation of the Acquisition Proposal, the Company shall pay to termination Parent the Termination Fee by wire transfer of same day funds to an account designated by Parent (provided, that for purposes of this Agreement pursuant to Section 8.2(a8.05(d), or the term “Acquisition Proposal” will have the meaning assigned to such term herein, except that the references to “20%” and “80%” will be deemed to be references to “50%”).
(Be) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter In the event that this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(aSections 8.03(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.03(c), then the Company Parent shall promptly, but in no event later than two days (2) Business Days after the date of such termination, pay Parent to the Company a termination fee of $12,825,000 53,000,000 (the “Parent Termination Fee”) ), by wire transfer of same day funds; provided, however, that funds to an account designated by the Company.
(f) In no event shall the Company be required to pay the Termination Fee to Parent, or Parent be paid pursuant required to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no pay the Parent Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders , on more than one occasion. All payments under this Section 8.05 will be made by wire transfer of same day funds to the account designated by Parent or otherwise not opposedthe Company, an Acquisition Proposal (substituting “50%” for “20%” in as the definition case may be. Each of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such terminationthe Company, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toPartnership, or shall have consummated or shall have approvedPartnership Merger Sub, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company Parent and Merger Sub acknowledges that (1) the agreements contained in this Section 8.5(b) 8.05 are an integral part of the transactions contemplated by this Agreement, and that, (2) without these agreements, Parent Parent, Merger Sub, the Company, the Partnership and Partnership Merger Sub would not enter into this Agreement and (3) neither the Termination Fee nor the Parent Termination Fee is a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, or the Company, the Partnership and Partnership Merger Sub, as applicable, in the circumstances in which such Termination Fee or Parent Termination Fee is payable for the efforts and resources expended and the opportunities forgone while negotiating this Agreement and in reliance on this Agreement and the expectation of the consummation of the transactions contemplated by this Agreement; accordingly. Accordingly, if the Company either Party fails to promptly pay the applicable termination fee when due or any amount due pursuant to this Section 8.5(b), portion thereof and, in order to obtain such payment, Parent or Merger Sub the other Party commences a suit which results in a judgment final and nonappealable Order against the Company other Party for the feesuch Termination Fee or Parent Termination Fee, to which reference is made in this Section 8.5(b)as applicable, or any portion thereof, the Company prevailing Party shall pay to Parent or Merger Sub the other Party its documented costs and expenses (including attorneys’ feesreasonable attorney’s fees and disbursements) in connection with such suit, together with interest on the amount of the fee Termination Fee or Parent Termination Fee, as applicable (or any portion thereof that has not been paid timely in accordance with this Agreement), at the prime lending rate of Citibank N.A. set forth in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment. Any interest payable hereunder shall be calculated daily on the basis of a year of 365 days and the actual number of days elapsed from the date such amounts were required to be paid until (but excluding) the date of actual payment.
(g) Notwithstanding anything to the contrary in this Agreement, in the event that the Termination Fee or the Parent Termination Fee is paid pursuant to this Section 8.05, Parent’s right to receive payment of the Termination Fee and such other amounts described herein or the Company’s right to receive payment of the Parent Termination Fee and such other amounts described herein, as the case may be, shall be the sole and exclusive remedy of the receiving Party and its Affiliates and Representatives against the other Party and its Affiliates and Representatives under this Agreement or arising out of or related to this Agreement or the transactions contemplated hereby, and upon payment of such amount, none of the paying Party or any of its Affiliates or Representatives shall have any liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, in each case, whether based on Contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise.
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 VIIIARTICLE VII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 (x) any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional material breach of this Agreement or (y) Parent, U.S. Parent or Merger Sub of any liability or damages to the Company resulting from the failure by Parent to obtain the Financing (including a breach of Sections 4.5 and 5.11) and (ii) the provisions set forth in this Section 7.5, Section 7.6 and ARTICLE VIII of this Agreement and the second sentence of Section 9.1 Confidentiality Agreement shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofremain in full force and effect.
(b) In the event that that:
(i) an a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days 30 Business Days prior to the date of termination (with respect to any termination pursuant to Section 7.2(a)) and (B) 10 Business Days prior to the date of this Agreement, the Company Stockholders Meeting (with respect to termination of this Agreement pursuant to Section 8.2(a7.2(b), or (B)) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.2(a7.2(a) or 8.2(b(Outside Termination Date), provided that none of Parent, U.S. Parent or Merger Sub has materially breached this Agreement, or (y) Section 7.2(b) (No Stockholder Approval);
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a7.4(a), (b) or (c) or (B) by the Company pursuant to Section 8.2(b7.2(b) (No Stockholder Approval) and, on or prior to the date of the Company Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a7.4(a), (b) or (c) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a7.3(a) (Superior Proposal); then, then in each case, the Company shall promptly, but in no event later than two days three Business Days after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Company Termination Fee”) by wire transfer of same day funds; provided, however, that the Company Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.37.3; and provided, further, that no Company Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated consummated, or there shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposedbeen consummated, an Acquisition Proposal made by or on behalf (substituting in both instances “50%” for “20%” in the definition of such Person or any of its Affiliates“Acquisition Proposal”). The Company acknowledges that the agreements contained in this Section 8.5(b7.5(b) and in Section 7.6(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent Parent, U.S. Parent, and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any the amount due pursuant to this Section 8.5(b7.5(b) or Section 7.6(b), and, in order to obtain such payment, Parent, U.S. Parent or Merger Sub commences a suit which that results in a final judgment against the Company for the fee, to which reference is made fee set forth in this Section 8.5(b)7.5(b) or any portion of such fee or for Parent Expenses set forth in Section 7.6(b) or any portion of such expenses, the Company shall pay to Parent, U.S. Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee and expenses at the prime rate published in the Money Rates section of Citibank N.A. The Wall Street Journal in effect on the date such payment was required to be made through made. Notwithstanding anything to the date of paymentcontrary in this Agreement, the parties hereby acknowledge that in the event that the Company Termination Fee and Parent Expenses become payable and are paid by the Company pursuant to this Section 7.5(b), the Company Termination Fee and Parent Expenses shall be Parent’s and Merger Sub’s sole and exclusive remedy and shall constitute liquidated damages with respect to this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 10.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or knowing and intentional breach of this Agreement and (ii) the provisions set forth in this Section 10.5 and the second sentence of Section 9.1 11.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated:
(i) an Acquisition Proposal shall have been made to by either the Company or any of its stockholders or Parent pursuant to Section 10.2(a), and:
(A) prior to such termination, any Person shall have made and publicly announced an intention Acquisition Proposal (whether or not conditional) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or termination (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Qualifying Acquisition Proposal”); provided that for purposes of this Agreement, an Section 10.5(b)(i)(A) and Section 10.5(b)(i)(B) all references to 25% in the definition of “Acquisition Proposal Proposal” shall not be deemed to have been be references to a “publicly withdrawnmajority” by any Person ifof the outstanding Common Stock, and
(B) within 12 months of after such termination, the Company or any of its Subsidiaries shall have entered into into, the transactions contemplated by, an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Qualifying Acquisition Proposal made by or and such transaction is subsequently consummated, then on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of date the transactions contemplated by this Agreementsuch Alternative Acquisition Agreement are consummated, and that, without these agreements, (ii) by Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 8.5(b10.4(b) as a result of a Change of Recommendation made in accordance with Section 8.2(d)(ii), andthen promptly, but in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through no event later than two Business Days after the date of payment.such termination, or
Appears in 1 contract
Sources: Merger Agreement (Cafepress Inc.)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 10.5(b) and Section 10.5(c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, that and notwithstanding anything in this Agreement to the contrary, (i) except as otherwise provided herein, no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any willful or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in Article XI [Miscellaneous and General], Section 8.14 [Expenses], this Section 10.5 [Effect of Termination and Abandonment] and the second sentence of Section 9.1 Confidentiality Agreement shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated:
(i) an by either L3 or ▇▇▇▇▇▇ pursuant to Section 10.2(a) [Outside Date] or Section 10.2(c)(i) [Requisite L3 Vote Not Obtained], or by ▇▇▇▇▇▇ pursuant to Section 10.3(b) [L3 Material Breach], and, in each case,
(A) a bona fide Acquisition Proposal with respect to L3 shall have been publicly made directly to the Company stockholders of L3 or any of its stockholders shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company L3 (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A1) 10 business days prior to termination the date of this Agreementsuch termination, with respect to any termination of this Agreement pursuant to Section 8.2(a)10.2(a) [Outside Date] or Section 10.3(b) [L3 Material Breach], or (B2) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the L3 Stockholders Meeting, any event giving rise with respect to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company termination pursuant to Section 8.3(a10.2(c)(i) [Requisite L3 Vote Not Obtained]), then the Company shall promptly, but in no event later than two days and
(B) within twelve (12) months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”1) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company L3 or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toto any Acquisition Proposal with respect to L3 or (2) there shall have been consummated any Acquisition Proposal with respect to L3 (in each case of clauses (1) and (2), with forty percent (40%) being substituted in lieu of fifteen percent (15%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2),
(ii) by ▇▇▇▇▇▇ pursuant to Section 10.3(a) [L3 Change of Recommendation], then promptly, but in no event later than three (3) Business Days after the date of such termination, or
(iii) by either ▇▇▇▇▇▇ or L3 pursuant to Section 10.2(c)(i) [Requisite L3 Vote Not Obtained] (and, at the time of such termination pursuant to Section 10.2(c)(i) [Requisite L3 Vote Not Obtained], ▇▇▇▇▇▇ had the right to terminate this Agreement pursuant to Section 10.3(a) [L3 Change of Recommendation]), then promptly, but in no event later than, in the case of such termination by ▇▇▇▇▇▇, three (3) Business Days or, in the case of such termination by L3, one (1) Business Day after the date of such termination, L3 shall, in the case of Section 10.5(b)(i), Section 10.5(b)(ii) or Section 10.5(b)(iii), pay the termination fee of $590,000,000 (the “L3 Termination Fee”), to ▇▇▇▇▇▇ or its designee by wire transfer of immediately available cash funds. In no event shall L3 be required to pay the L3 Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated:
(i) by either L3 or ▇▇▇▇▇▇ pursuant to Section 10.2(a) [Outside Date] or Section 10.2(c)(ii) [Requisite ▇▇▇▇▇▇ Vote Not Obtained], or by L3 pursuant to Section 10.4(b) [▇▇▇▇▇▇ Material Breach], and, in each case,
(A) a bona fide Acquisition Proposal with respect to ▇▇▇▇▇▇ shall have consummated been publicly made directly to the stockholders of ▇▇▇▇▇▇ or shall otherwise have approved, adopted become publicly known or recommended any Person shall have publicly announced an intention (whether or not conditional) to the Company’s stockholders or otherwise not opposed, make an Acquisition Proposal made by with respect to ▇▇▇▇▇▇ (and such Acquisition Proposal or on behalf publicly announced intention shall not have been publicly withdrawn without qualification (1) prior to the date of such Person termination, with respect to any termination pursuant to Section 10.2(a) [Outside Date] or Section 10.4(b) [▇▇▇▇▇▇ Material Breach], or (2) prior to the date of the ▇▇▇▇▇▇ Stockholders Meeting, with respect to termination pursuant to Section 10.2(c)(ii) [Requisite ▇▇▇▇▇▇ Vote Not Obtained]), and
(B) within twelve (12) months after such termination, (1) ▇▇▇▇▇▇ or any of its AffiliatesSubsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal with respect to ▇▇▇▇▇▇ or (2) there shall have been consummated any Acquisition Proposal with respect to ▇▇▇▇▇▇ (in each case of clauses (1) and (2), with forty percent (40%) being substituted in lieu of fifteen percent (15%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing clauses (B)(1) or (B)(2),
(ii) by L3 pursuant to Section 10.4(a) [▇▇▇▇▇▇ Change of Recommendation], then promptly, but in no event later than three (3) Business Days after the date of such termination, or
(iii) by either ▇▇▇▇▇▇ or L3 pursuant to Section 10.2(c)(ii) [Requisite ▇▇▇▇▇▇ Vote Not Obtained] (and, at the time of such termination pursuant to Section 10.2(c)(ii) [Requisite ▇▇▇▇▇▇ Vote Not Obtained], L3 had the right to terminate this Agreement pursuant to Section 10.4(a) [▇▇▇▇▇▇ Change of Recommendation]), then promptly, but in no event later than, in the case of such termination by L3, three (3) Business Days or, in the case of such termination by ▇▇▇▇▇▇, one (1) Business Day after the date of such termination, ▇▇▇▇▇▇ shall, in the case of Section 10.5(c)(i), Section 10.5(c)(ii) or Section 10.5(c)(iii), pay the termination fee of $700,000,000 (the “▇▇▇▇▇▇ Termination Fee”), to L3 or its designee by wire transfer of immediately available cash funds. In no event shall ▇▇▇▇▇▇ be required to pay the ▇▇▇▇▇▇ Termination Fee on more than one occasion.
(d) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in this Section 8.5(b) 10.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub the other Parties would not enter into this Agreement; accordingly, if the Company L3 or ▇▇▇▇▇▇, as applicable, fails to promptly pay any the amount due pursuant to this Section 8.5(b)10.5, and, in order to obtain such payment, Parent ▇▇▇▇▇▇ or Merger Sub or L3, as applicable, commences a suit which that results in a judgment against the Company L3 or ▇▇▇▇▇▇, as applicable, for the fee, to which reference is made fees set forth in this Section 8.5(b)10.5 or any portion of such fees, the Company such paying Party shall pay to Parent or Merger Sub the other Party its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. as published by The Wall Street Journal (in effect on the date such payment was required to be made) from the date such payment was required to be made through the date of payment. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that in the event that any termination fee becomes payable by, and is paid by, L3 or becomes payable by, and is paid by, ▇▇▇▇▇▇, as applicable, such fee shall be the receiving Party’s sole and exclusive remedy for damages against the other Parties and their respective former, current or futures stockholders, directors, officers, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement set forth in this Agreement or the failure of the Transactions to be consummated; provided, however, that no such payment shall relieve any Party of any liability or damages to any other Party resulting from any Willful Breach of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (L3 Technologies, 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 pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the last sentence of Section 6.15(a), this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an (A) this Agreement is terminated (1) by either the Company or Parent pursuant to Section 8.2(a) or Section 8.2(b), or (2) by Parent pursuant to Section 8.4(d), (B) 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 have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (x) at least thirty (A30) 10 business days prior to termination the date of this Agreementtermination, with respect to any termination of this Agreement pursuant to Section 8.2(a), or and (By) five at least ten (10) business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise with respect to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company termination pursuant to Section 8.3(a8.2(b)), then the Company shall promptly, but in no event later than two days and (C) within twelve (12) months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”1) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “2015%” in the definition of “Acquisition Proposal”)) or (2) there shall have been consummated an Acquisition Proposal; provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 twelve (12) months of after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved, adopted approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The ;
(ii) this Agreement is terminated by Parent pursuant to Section 8.4 (other than pursuant to Section 8.4(d)); or
(iii) this Agreement is terminated by the Company acknowledges that pursuant to Section 8.2(b) and, on or prior to the agreements contained in this Section 8.5(b) are an integral part date of the transactions contemplated by this AgreementStockholders Meeting, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails any event giving rise to promptly pay any amount due Parent’s right to terminate pursuant to this Section 8.5(b8.4 (other than pursuant to Section 8.4(d), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), ) shall have occurred. then the Company shall pay to Parent or Merger Sub its costs and expenses promptly, but in no event later than two (including attorneys’ fees2) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through business days after the date of payment.such termination, pay Parent the applicable Termination Fee, payable by wire
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 shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers or other Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that If this Agreement is terminated by (i) the Company pursuant to Section 8.3(a) or (ii) Purchaser pursuant to Section 8.4(a), then the Company shall, upon the date of such termination, pay Purchaser a cash fee equal to $15,000,000 less the Expense Reimbursement, if any, paid to Purchaser pursuant to Section 8.5(d) (the “Termination Fee”). If after the date hereof (x) any Person shall have communicated to the Company or publicly announced an Acquisition Proposal and (y) the Company’s Board of Directors has publicly taken a neutral position or no position with respect to such Acquisition Proposal (unless on or prior to the earlier of the opening of business on the 16th business day after the date on which such Acquisition Proposal was originally communicated to the Company’s Board of Directors (through public announcement or otherwise) and the business day immediately preceding the date of the Stockholders Meeting (the “Neutral Period”)), the Company’s Board of Directors determines to recommend against such Acquisition Proposal and, to the extent such Acquisition Proposal has been made public, the Company’s Board of Directors has publicly announced its determination to recommend against such Acquisition Proposal (it being understood that to the extent such Acquisition Proposal is materially modified and there are less than 5 business days remaining in the Neutral Period such period shall be extended so that the period shall run for no less than a complete 5 business days from the date of such material modification)) and (z) thereafter this Agreement is terminated by Purchaser or the Company pursuant to Section 8.2(b), then the Company shall, upon the date of such termination, pay Purchaser the Termination Fee. Any Termination Fee that becomes payable pursuant to this Section 8.5(b) shall be paid not later than the earlier of the termination of this Agreement and immediately prior to the time and date on which the Company enters into an agreement with respect to an Alternate Acquisition Proposal payable by wire transfer of same day funds.
(c) If after the date hereof a bona fide Acquisition Proposal shall have been made communicated to the Company or any of its stockholders publicly announced, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect communicated to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior announced, that, subject to termination of this Agreementthe Merger being disapproved by the Company’s stockholders or otherwise rejected, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b)it will make a bona fide Acquisition Proposal, and thereafter this Agreement is terminated by either Parent or the Company Purchaser pursuant to Section 8.2(a) or 8.2(b)(b) or Section 8.4(b) and a fee has not been paid in respect of Section 8.5(b) above, and concurrently with such termination or within twelve months after such termination the Company shall agree to an Acquisition Proposal with the Person who made such communication to the Company or public announcement, or an Acquisition Proposal with the Person who made such communication to the Company or public announcement shall be consummated, then the Company shall prior to the earlier of agreeing to such Acquisition Proposal or consummating such Acquisition Proposal, pay the Termination Fee; provided, however, that, (iix) the Termination Fee shall only become payable to Purchaser under this Agreement is terminated (ASection 8.5(c) by Parent in connection with a termination pursuant to Section 8.4(a)8.4(b) in the event that Purchaser’s termination of this Agreement pursuant to Section 8.4(b) was a result of a willful or intentional breach of any representation, warranty, covenant or (B) agreement made by the Company in this Agreement committed after the date on which such bona fide Acquisition Proposal shall have been communicated to the Company or publicly announced, such that the conditions set forth in Section 7.2(a) or 7.2(b) would not be satisfied and (y) no Termination Fee shall be payable under this Section 8.5(c) in connection with a termination pursuant to Section 8.2(b8.2(a) andif, on or prior to the date time of such termination, all of the Stockholders Meetingconditions to Purchaser’s obligations set forth in Sections 7.1 and 7.2 were satisfied, any event giving rise to Parent’s right to terminate other than the condition set forth in Section 7.2(d). All payments under this Section 8.4(a8.5(c) shall have occurred, or be made by wire transfer of same day funds.
(iiid) If this Agreement is terminated by the Company pursuant to Section 8.3(a8.2(b), then the Company shall promptlyshall, but in no event later than two days after on the date that this Agreement is terminated pay Purchaser (or any Affiliate or Affiliates of such termination, pay Parent Purchaser as Purchaser may designate) all of the reasonable and documented out-of-pocket third party charges and expenses actually incurred by Purchaser or its Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a termination fee maximum amount of $12,825,000 4,000,000 (the “Termination FeeExpense Reimbursement”) ), payable by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iiiExpense Reimbursement provided for in this Section 8.5(d) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be not become payable to Parent pursuant to clause (i) of Purchaser if Purchaser or Merger Sub have breached their respective representations, warranties, covenants or agreements under this Section 8.5(b) unless and until within 12 months of such termination the Company Agreement in any manner that shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended proximately caused the failure to obtain the Company’s stockholders or otherwise not opposed, an Acquisition Proposal Stockholder Approval.
(substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. e) The Company acknowledges that the agreements contained in this Section Sections 8.5(b), (c) and (d) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent Purchaser and Merger Sub would not enter into this Agreement; accordingly, if . If the Company fails to pay promptly pay any amount due pursuant to this Section 8.5(b), and(c) or (d), in order and to obtain such paymentpayments, Parent Purchaser or Merger Sub commences a suit which results in a judgment against the Company for the fee, charges or expenses to which reference is made in this Section 8.5(bparagraph (e), the Company shall pay to Parent Purchaser or Merger Sub its their respective costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through made. If the date Company pays amounts due under Section 8.5(b), (c) or (d), such payment shall be Purchaser’s and Merger Sub’s sole and exclusive remedy for monetary damages with respect to a termination of paymentthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Sourcecorp 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither F&M nor DELTA shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that DELTA shall cause DELTA Bank to pay F&M the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 425,000 plus F&M’s documented out of pocket expenses incurred in connection with the Transaction (the “Termination Fee”) on the second Business Day following the termination of this Agreement, if this Agreement is terminated as follows:
(i) if this Agreement is terminated by F&M pursuant to Section 8.01(f) or (g); or
(ii) if this Agreement is terminated by (A) F&M pursuant to Section 8.01(b) (B) by either F&M or DELTA pursuant to Section 8.01(c) and at the time of such termination no vote of the DELTA shareholders contemplated by this Agreement at the DELTA Meeting shall have occurred, or (C) by F&M pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (A), (B) or (C), a Superior Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of DELTA or the DELTA Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make a Superior Proposal, or reiterated a previously expressed plan or intention to make an Superior Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of DELTA contemplated by this Agreement at the DELTA Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B). Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of same day funds; provided, however, immediately available funds to an account designated by F&M.
(c) The parties hereto agree that F&M shall cause F&M Bank to pay DELTA the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth sum of $425,000 plus DELTA’s documented out of pocket expenses incurred in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such connection with the Transaction on the second Business Day following the termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” if this Agreement is terminated by DELTA for a willful breach by F&M of any Person if, within 12 months covenant or agreement of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges F&M contained herein.
(d) DELTA and F&M agree that the agreements agreement contained in this Section 8.5(bparagraphs (b) and (c) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement the parties would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty or liquidated damages. If a party fails to promptly pay any amount the other party the amounts due pursuant to this Section 8.5(b)under paragraph (b) or (c) above, andas the case may be, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against within the Company for the fee, to which reference is made in this Section 8.5(b)time periods specified, the Company non-paying party shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by the other party in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided the moving party prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as otherwise expressly set forth in this Section 8.02, in the event of the valid termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.01, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, that (ix) except as otherwise provided hereinsubject to Section 8.02(d), no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any willful fraud or intentional breach Willful and Material Breach of its obligations set forth in this Agreement (such liabilities and damages, the “Damages”); provided that in the case of a Willful and Material Breach or fraud by Parent or Merger Sub such aggregate liability hereunder and under the Voting and Support Agreement shall not exceed $14,808,583.00 and (iiy) the provisions set forth in this Section 8.02 and the second sentence and third sentences of Section 9.1 9.01 shall survive the termination of this Agreement. No Subject to the preceding sentence, in determining losses or damages recoverable upon termination by a party hereto for the other party’s breach, the parties hereto acknowledge and agree that such losses and damages shall not be limited to reimbursement of expenses or out-of-pocket costs and may include the benefit of the bargain lost by such party, or in the case of the Company, the holders of Shares, which shall be deemed to be damages payable to such party. In addition to the foregoing, no termination of this Agreement shall be effective unless and until notice will affect the rights or obligations of such termination shall have been given by the terminating party any Party pursuant to Section 9.6the Limited Guarantee, specifying which rights, obligations and agreements set forth in the provision or provisions Limited Guarantee will survive the termination of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofin accordance with its respective terms.
(bi) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(h) or by Parent pursuant to Section 8.01(f)(ii), then then, within two Business Days thereafter, the Company shall promptlypay or cause to be paid to or at the direction of Parent, but by wire transfer of immediately available funds to the account designated in no event later than two days after the date of such terminationwriting by Parent, pay Parent a termination fee of $12,825,000 1,063,058.00 (the “Company Termination Fee”);
(ii) If (A) this Agreement is validly terminated pursuant to Section 8.01(d); (B) following the execution and delivery of this Agreement and prior to such termination of the Agreement, any Person shall have announced an Acquisition Proposal and not withdrawn or otherwise abandoned such Acquisition Proposal; and (C) within twelve months following such termination of this Agreement, either any Acquisition Proposal is consummated or the Company enters into an Alternative Acquisition Agreement with respect to any Acquisition Proposal, then the Company shall, within five Business Days after entry into such Alternative Acquisition Agreement, pay or cause to be paid to or at the direction of Parent, by wire transfer of same day funds; providedimmediately available funds to an account designated in writing by Parent, however, that the Company Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) Fee. For purposes of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to8.02(b)(ii), or shall have consummated or shall have approved or recommended all references to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have been be references to “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company 50%.”
(c) Each Party acknowledges that the agreements contained in this Section 8.5(b) 8.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no Party would not enter have entered into this Agreement; accordingly, if the Company or Parent fails to promptly timely pay Parent or the Company any amount due pursuant to this Section 8.5(b)8.02, including damages, and, in order to obtain such payment, Parent or Merger Sub the Party to whom such payment is owed commences a suit which that results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b)other Party, the Company such other Party shall pay to Parent or Merger Sub the owed Party its reasonable, documented and out-of-pocket costs and expenses (including attorneys’ feesfees of outside counsel) in connection with such suitsuit (“Enforcement Costs”); provided, together with interest on that in no event shall the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was any Party be required to pay Enforcement Costs in an aggregate amount exceeding $2,000,000 (such amount being already included in the limitation on Parent’s aggregate liability set forth in Section 8.02(a)(x) and Section 8.02(d)(i)). The parties hereto acknowledge and hereby agree that in no event shall the Company be made through required to pay the date of paymentCompany Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Eargo, Inc.)
Effect of Termination and Abandonment. (a) In Any proper termination of this Agreement pursuant to this Article IX shall be effective immediately upon the delivery of written notice of such termination by the terminating Party to the other Party. Except to the extent provided in Section 9.5(b) and Section 9.5(c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided herein, no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any willful or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 9.5 and the provisions set forth, or referred to, in the second sentence of Section 9.1 10.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated: (i) an (x) by either the Company or Parent pursuant to Section 9.2(a) [Outside Date], by either the Company or Parent pursuant to Section 9.2(b) [Requisite Company Vote Not Obtained], or by Parent pursuant to Section 9.3(b) [Company Breach], and (y) in the case of termination pursuant to Section 9.2(a) [Outside Date], the Parent Termination Fee is not payable pursuant to Section 9.5(c)(ii),
(A) a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries and publicly announced or made publicly to the stockholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination (1) the date of this Agreementtermination, with respect to any termination of this Agreement pursuant to Section 8.2(a)9.2(a) [Outside Date], or (B2) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise with respect to Parent’s right termination pursuant to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a9.2(b) [Requisite Company Vote Not Obtained]), then the Company shall promptlyand, but in no event later than two days each case,
(B) within twelve (12) months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting with “50%” for being substituted in lieu of “20%” in each instance thereof in the definition of “Acquisition Proposal”” for purposes of this Section 9.5(b)(i)), then immediately prior to or concurrently with the entry into such Alternative Acquisition Agreement; provided provided, that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 twelve (12) months of after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved, adopted approved or recommended to the Company’s stockholders of the Company or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates, (ii) by Parent pursuant to Section 9.3(a) [Company Change of Recommendation], then promptly, but in no event later than one (1) Business Day after the date of such termination, (iii) by the Company pursuant to Section 9.4(a) [Company Fiduciary Out for Superior Proposal], then immediately prior to or concurrently with such termination, or (iv) by the Company pursuant to Section 9.2(b) [Requisite Company Vote Not Obtained] and, on or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate pursuant to Section 9.3(a) [Company Change of Recommendation] shall have occurred, then immediately prior to or concurrently with such termination, the Company shall pay the Company Termination Fee to Parent, in each case by wire transfer of immediately available cash funds. 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 (i) by the Company pursuant to Section 9.4(b) [Parent or Merger Sub Breach] or Section 9.4(c) [Parent or Merger Sub Failure to Close], or (ii) pursuant to Section 9.2(a) [Outside Date], if, in the case of this clause (ii) at the time of termination the Company would have been entitled to terminate this Agreement pursuant to Section 9.4(b), then promptly, but in no event later than two (2) Business Days after the date of such termination, Parent shall pay the Parent Termination Fee to the Company by wire transfer of immediately available cash funds. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(d) (i) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement; accordingly. Notwithstanding anything in this Agreement to the contrary, if the Parties hereby acknowledge and agree that (A) in the event that the Company fails Termination Fee or the Parent Expenses becomes payable by, and is paid by, the Company and accepted by Parent pursuant to promptly pay any amount due Section 9.5(b) or Section 9.6, as applicable, the Company Termination Fee or the Parent Expenses (in the event that the Company Termination Fee does not become payable pursuant to Section 9.5(b)(i)), as applicable, shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages pursuant to this Agreement and (B) in the event that the Parent Termination Fee becomes payable by, and is paid by, Parent and accepted by the Company pursuant to Section 8.5(b9.5(c), and, in order such fee shall be the Company’s sole and exclusive remedy for monetary damages pursuant to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentAgreement.
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise provided herein, no such set forth in Section 9.01 and (ii) that termination shall will not relieve any a breaching party hereto of any from liability or damages resulting from for any willful or intentional breach of this Agreement giving rise to such termination.
(b) Nortel and Bay agree that Bay shall pay to Nortel the sum of $275 million (the "Termination Fee") solely as follows:
(i) if Bay shall terminate this Agreement pursuant to Section 8.01(f) ,
(ii) if (x) Bay or Nortel shall terminate this Agreement pursuant to Section 8.01(d)(ii) due to the provisions set forth in failure of Bay's stockholders to approve and adopt this Agreement, (y) at any time after the second sentence date of Section 9.1 this Agreement and at or before the time of the event giving rise to such termination there shall survive exist an Acquisition Proposal and (z) within 12 months of the termination of this Agreement. No termination , Bay enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated,
(iii) if Nortel shall terminate this Agreement pursuant to Section 8.01(e), or
(iv) if (w) Nortel shall terminate this Agreement pursuant to Section 8.01(c) or Nortel or Bay shall terminate this Agreement pursuant to Section 8.01(d)(i), (x) at any time after the date of this Agreement and at or before the time of the event giving rise to such termination there shall be effective unless and until notice exist an Acquisition Proposal, (y) following the existence of such termination Acquisition Proposal and prior to any such termination, Bay shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall intentionally breached (and not be entitled to terminate this Agreement or receive any cured after notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company or any of its stockholders material covenants or agreements set forth in this Agreement in any Person shall have publicly announced an intention material respect, and (whether or not conditionalz) to make an Acquisition Proposal with respect to the Company and within 12 months of any such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, Bay shall enter into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated.
(c) The Termination Fee required to be paid pursuant to Section 8.02(b) shall be payable prior to, and shall be a pre-condition to the effectiveness of any termination of this Agreement pursuant to Section 8.2(a8.01(f), or (B) five business days prior . Any other payment required to termination of this Agreement, with respect to termination of this Agreement be made pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a8.02(b) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) Nortel not later than two Business Days after the entering into of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement a definitive agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposedconsummation of, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toas applicable, or shall have consummated or shall have approveda termination pursuant to Section 8.01(e). Notwithstanding the foregoing, adopted or recommended (i) Nortel may elect, by notice to Bay, to defer the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part payment of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails Termination Fee from time to promptly pay any amount due pursuant time for a period of up 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on six months after the date such payment was required fee would otherwise be payable and (ii) the Termination Fee shall cease to be payable immediately following any exercise by Nortel of the Option under the Option Agreement. All payments under this Section 8.02 shall be made through by wire transfer of immediately available funds to an account designated by the date of party entitled to receive payment.
Appears in 1 contract
Sources: Merger Agreement (Bay Networks 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, this Agreement shall become void and of no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates); providedPROVIDED, howeverHOWEVER, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement .
(b) In the event that Parent shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement pursuant to Section 8.4(a)(iii) or receive 8.4(a)(iv)(B), the Company shall pay to Parent $1,000,000 by wire transfer of same day funds on each calendar day beginning with the calendar day that includes the first hour following the end of the 48 hour period referred to in Section 8.4(a)(iii) or 8.4(a)(iv)(B), as the case may be, and ending with and including the calendar day on which (i) the board of directors of the Company reaffirms its approval or recommendation of this Agreement and the Merger (in the case of Parent's termination right pursuant to Section 8.4(a)(iii)), or (ii) the board of directors of the Company recommends against acceptance of the tender offer or exchange offer (in the case of Parent's termination right pursuant to Section 8.4(a)(iv)(B)), or (iii) this Agreement is terminated by either Parent or the Company pursuant to this Agreement, whichever event described in clauses (i), (ii) or (iii) of this Section 8.5(b) first occurs. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section 8.5(b) (collectively, the "EXPENSES") shall not exceed $5,000,000 in the aggregate. Expenses payable on any notice thereofcalendar day that is not a business day shall be paid on the next business day.
(bc) In the event that (i) an Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or made publicly to 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 without qualification at least (A) 10 ten business days prior to termination of this Agreement, with respect to any termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), ) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or, with respect to a breach of a covenant or agreement (but not with respect to a breach of a representation or warranty), by Parent pursuant to Section 8.4(b) or (B) 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 's right to terminate under Section 8.4(a) 8.4 shall have occurred, occurred or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 38,970,000, less any Expenses previously paid (the “Termination Fee”) "TERMINATION FEE"), by wire transfer of same day immediately available funds; providedPROVIDED, howeverHOWEVER, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; providedPROVIDED, furtherFURTHER, that no Termination Fee shall be payable to Parent pursuant to clause (i) or clause (ii) of this Section 8.5(b8.5(c) unless and until (x) within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s 's stockholders or otherwise not opposed, an Acquisition Proposal and (substituting “50y) the transaction contemplated by such Alternative Acquisition Agreement or Acquisition Proposal, as the case may be, has been consummated (with "15%” for “20%” " in the definition of “"Acquisition Proposal”" being replaced by "50%" for purposes of these clauses (x) and (y), including with respect to any Alternative Acquisition Agreement which for such purposes shall refer only to an Alternative Acquisition Agreement with respect to such an Acquisition Proposal); provided PROVIDED that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “"publicly withdrawn” " by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s 's stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b8.5(c) are an integral part of the transactions contemplated by 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 any amount due pursuant to Section 8.5(b) or this Section 8.5(b8.5(c), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b)such amount, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company pursuant to this Section 8.5(c), 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 the Company or Parent intends to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to Section 9.3, Section 9.3 or Section 9.4, respectively, the Company or Parent, as applicable, shall give written notice to the other party specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected.
(b) Except to the extent provided in Section 9.5(c) and Section 9.5(d) in the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives Affiliates or Affiliatesits or their respective Representatives); provided, however, that and notwithstanding anything to the contrary set forth in this Agreement, (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to any other party resulting from any willful fraud or intentional breach Willful Breach of any provision of this Agreement and (ii) the provisions set forth in this Section 9.5, Article X and the second sentence of Section 9.1 Confidentiality Agreement shall survive the termination of this Agreement. No any termination of this Agreement shall be effective unless and until notice any abandonment of such termination shall have been given the transactions contemplated by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofAgreement.
(bc) In the event that this Agreement is terminated and the transactions contemplated by this Agreement abandoned pursuant to this Article IX:
(i) an by either the Company or Parent pursuant to Section 9.2(a) or Section 9.2(c), or by Parent pursuant to Section 9.4(b) (as a result of any Willful Breach) and, in each case, (A) a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or disclosed and not conditional) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date time of such termination, pay Parent a termination fee of $12,825,000 and (the “Termination Fee”B) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made (substituting “50%” for “15%” in the definition of “Acquisition Proposal” for purposes of this Section 9.5(c)(i)), then the Company shall pay or cause to be paid to Parent a termination fee of an amount equal to $19,000,000 (the “Company Termination Fee”) plus the Parent Expense Reimbursement by wire transfer of immediately available funds prior to or on behalf concurrently with entering into an agreement with respect to such Acquisition Proposal;
(ii) by the Company pursuant to Section 9.3(a) or by Parent pursuant to Section 9.4(a), then the Company shall pay or cause to be paid to Parent the Company Termination Fee plus the Parent Expense Reimbursement by wire transfer of immediately available funds within five business days following the date of such Person termination and abandonment; or
(iii) by either the Company or Parent pursuant to Section 9.2(c), then the Company shall pay or cause to be paid to Parent the Parent Expense Reimbursement by wire transfer of immediately available funds within five business days following the date of such termination and abandonment.
(d) If this Agreement is terminated by Parent or the Company pursuant to Section 9.2(a) and at the time of any such termination (i) each of the conditions set forth in Section 8.1 and Section 8.2 has been satisfied (other than those conditions that by their nature are to be satisfied at the Closing) and (ii) there exists a Financing Failure, except in the case (A) where the Company has materially breached its Affiliates. obligations under Section 7.16, such breach is not cured within 15 days after written notice thereof by Parent to the Company specifying such breach in particularity and, but for such breach, there would be no Financing Failure, or (B) of the occurrence of any event described in subsections (i) or (ii) of the definition of “Marketing Period” and as a result of such events the Marketing Period has not been completed prior to the Outside Date and this Agreement has been terminated pursuant to Section 9.2(a) (the foregoing clauses (ii)(A) and (ii)(B), a “Company Causation Exception”), then, in any such case, Parent will pay to the Company a termination fee of an amount equal to $35,300,000 (the “Reverse Termination Fee”) by wire transfer of immediately available funds prior to or simultaneous with such termination, or as promptly as practicable, but in any event no later than two business days, after such termination.
(e) The Parties acknowledge and agree that: (i) in no event shall the Company acknowledges that be required to pay the Company Termination Fee or pay the Parent Expense Reimbursement on more than one occasion; (ii) the agreements contained set forth in this Section 8.5(b) 9.5 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub the other parties would not enter into this Agreement; Agreement and accordingly, if the Company fails to promptly pay any or cause to be paid the amount due pursuant to this Section 8.5(b)9.5, and, in order to obtain such paymentamount, Parent or Merger Sub commences a suit which an Action that results in a final, binding and non-appealable judgment against the Company for the fee, to which reference is made in this Section 8.5(b)Company Termination Fee (or any portion thereof) or the Parent Expense Reimbursement, the Company shall pay or cause to be paid to Parent or Merger Sub its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suitAction; (iii) notwithstanding anything to the contrary set forth in this Agreement, together in the event that the Company Termination Fee or the Parent Expense Reimbursement becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages pursuant to this Agreement with interest on respect to termination of this Agreement under the provisions of this Agreement giving rise to the obligation to pay the Company Termination Fee; provided, however, that in the event the Company reimburses Parent for the Parent Expense Reimbursement pursuant to Section 9.5(c)(iii), it shall retain all rights to further payment under Section 9.5(c)(i) (subject to clause (iv) below); provided, further, that any such payment shall not relieve the Company of any liability or damages incurred or suffered by Parent or Merger Sub to the extent such liability or damages were the result of or arise out of any fraud or Willful Breach of any provision of this Agreement (including with respect to breaches of this Agreement pursuant to which the Company Termination Fee shall have become or becomes payable pursuant to this Article IX), in which case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise; (iv) notwithstanding anything to the contrary set forth in this Agreement, the amount of the fee at Parent Expense Reimbursement paid by the prime rate Company shall be applied as a credit to any additional payment of Citibank N.A. the Company Termination Fee required by Section 9.5; and (v) notwithstanding anything to the contrary set forth in effect on this Agreement, the date Company shall have the right to recover damages (which shall be determined by reference to the total amount that would have been recoverable by the Company’s shareholders if all such payment was shareholders brought an action against Parent and were recognized as third-party beneficiaries hereunder) from Parent in the event of any fraud or Willful Breach of any provision of this Agreement by Parent or Merger Sub, which right is hereby acknowledged and agreed by Parent and Merger Sub.
(f) The Parties acknowledge and agree that in no event shall Parent be required to pay the Reverse Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement:
(i) if this Agreement is terminated and the Reverse Termination Fee is payable and is actually paid to the Company pursuant to Section 9.5(d), then, in such instances, the Company’s right to receive the Reverse Termination Fee shall be made through deemed to be liquidated damages for any and all losses or damages suffered or incurred by the date Company or any of paymentits Affiliates in connection with this Agreement, the Debt Financing and Debt Financing Commitment, and the transactions contemplated hereby and thereby; and
(ii) if this Agreement is terminated and the Reverse Termination Fee is payable and is actually paid to the Company pursuant to Section 9.5(d) then, in such instances, the Reverse Termination Fee shall be the sole and exclusive remedy of the Company and its Affiliates against the Parent and its Subsidiaries, the Debt Financing Sources and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates, employees, representatives or agents (“Parent Related Parties”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Merger to be consummated, and none of Parent, its Subsidiaries, the Debt Financing Sources or any of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided, however, that in each case of the foregoing clauses (i) and (ii), under such circumstances, no Person shall be relieved of any liability or damages incurred or suffered by the Company to the extent such liability or damages were the result of or arise out of any fraud or Willful Breach of any provision of this Agreement by Parent or Merger Sub, in which case the Company shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise; provided, further, that in the event of any Financing Failure, the Debt Financing Sources and their respective former, current, or future general or limited partners, equityholders, managers, members, directors, officers, Affiliates, employees, attorneys, representatives or agents will not have any liability of any nature (for any breach of this Agreement or of the Debt Commitment Letter) to the Company or any of its Subsidiaries or to any shareholder or Affiliate of the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Reverse Termination Fee shall not be payable following the occurrence of a Financing Failure if the Company Causation Exception applies pursuant to Section 9.5(d), and in such event, neither the Company nor any other Person shall have any further recourse against Parent, Merger Sub or any of their respective Affiliates under this Agreement except as otherwise provided in Section 9.5(b). The Parties agree that the Reverse Termination Fee and the agreements contained in Section 9.5(d) are an integral part of the Merger, and that without these agreements, the other parties would not enter into this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ladenburg Thalmann Financial Services 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, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its Representatives directors, officers, employees, agents, legal and financial advisors or Affiliatesother representatives); provided, however, that except (i) except as otherwise provided herein, in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(bi) In Napa shall immediately pay or cause to be paid a termination fee, representing liquidated damages, of $1.9 million (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (iA) an Acquisition Proposal shall have been made to the Company Napa or any of its stockholders shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company Napa and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company Napa pursuant to (x) Section 8.2(a8.02(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 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), inaction of Napa or (By) by the Company pursuant to Section 8.2(b8.02(b)(ii) and, on or prior to the date and (C) within twelve (12) months of the Stockholders Meetingtermination of this Agreement, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or Napa consummates an Acquisition Proposal;
(iii2) this Agreement is terminated by the Company Napa pursuant to Section 8.3(a8.03(a), then the Company ; or
(3) this Agreement is terminated by Parent or Bank pursuant to Section 8.04(b) or Section 8.04(c).
(ii) Any Termination Fee or Shareholder Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two days Business Days after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, provided that the Termination Fee to be paid pursuant with respect to clause (iii2) shall be paid as set forth in of Section 8.3; provided8.05 (b)(i), further, that no the Termination Fee shall be payable paid by Napa prior to Parent pursuant termination of this Agreement; and provided further that with respect to clause (i1) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”8.05(b)(i); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries Termination Fee shall have entered be paid prior to Napa’s entering into an Alternative Acquisition Agreement with respect toor consummating, approving or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, recommending an Acquisition Proposal made by or on behalf within two Business Days following notice from Parent if Napa shall have failed to oppose such Acquisition Proposal.
(iii) Such Termination Fee or Shareholder Termination Fee, as the case may be, shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such Person or any of its Affiliates. The Company payment, subject to Section 8.05(c).
(c) Napa acknowledges that the agreements contained in this Section 8.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, such agreements Parent and Merger Sub Bank would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty. If Napa fails to promptly pay Parent any amount amounts due pursuant to this Section 8.5(b)under paragraph (b) above within the time period specified therein, and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company Napa shall pay to Parent or Merger Sub its all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime rate of Citibank N.A. interest printed in effect The Wall Street Journal on the date such payment was required to be made through the date of payment.made. ARTICLE IX
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither Washington Federal nor First Mutual shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that First Mutual shall pay Washington Federal the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 7.5 million (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by wire transfer of same day funds; providedWashington Federal pursuant to Section 8.01(f) or (g), however, that First Mutual shall pay the entire Termination Fee to be paid Washington Federal on the second Business Day following the termination of this Agreement; or
(ii) if this Agreement is terminated by (A) Washington Federal pursuant to Section 8.01(b), (B) by either Washington Federal or First Mutual pursuant to Section 8.01(c) and at the time of such termination no vote of the First Mutual stockholders contemplated by this Agreement at the First Mutual Meeting shall have occurred, or (C) by either Washington Federal or First Mutual pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been publicly announced or otherwise communicated or made known to the senior management of First Mutual or the First Mutual Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of First Mutual contemplated by this Agreement at the First Mutual Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 15 months after such termination First Mutual enters into an agreement with respect to a Control Transaction, then First Mutual shall pay to Washington Federal an amount equal to $5.0 million on the date of execution of such agreement and upon consummation of any such Control Transaction at any time thereafter, First Mutual shall pay to Washington Federal the remainder of the Termination Fee on the date of such consummation and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with First Mutual within 18 months after such termination, then First Mutual shall pay to Washington Federal the Termination Fee (less any amount previously paid by First Mutual pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “publicly withdrawnControl Transaction” means (i) the acquisition by any Person ifwhether by purchase, within 12 months merger, consolidation, sale, transfer or otherwise, in one transaction or any series of such terminationtransactions, of a majority of the Company voting power of the outstanding securities of First Mutual or FMB or a majority of the assets or First Mutual or FMB, (ii) any issuance of securities resulting in the ownership by any Person of more than 50% of the voting power of First Mutual or by any Person other than First Mutual or its Subsidiaries of more than 50% of the voting power of FMB or (iii) any merger, consolidation or other business combination transaction involving First Mutual or any of its Subsidiaries as a result of which the stockholders of First Mutual cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made account designated by or on behalf of such Person or any of its Affiliates. The Company acknowledges Washington Federal.
(c) First Mutual and Washington Federal agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement Washington Federal would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by First Mutual. If First Mutual fails to promptly pay any amount Washington Federal the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company First Mutual shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Washington Federal in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided Washington Federal prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII8, no party to this Agreement shall become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise set forth in paragraphs (b) and (c) below and Section 9.01, (ii) that termination will not relieve a breaching party from liability if not provided herein, no such termination shall relieve for herein for any party hereto willful breach of any liability covenant, agreement, representation or damages resulting from any willful or intentional breach warranty of this Agreement giving rise to such termination and (iiiii) the provisions set forth in the second sentence any other provision of Section 9.1 shall survive this Agreement which expressly survives the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In If this Agreement is terminated by ACP pursuant to Section 8.01, paragraph (b) upon such termination Planet shall pay to ACP a termination fee of $150,000 (the event that "Termination Fee").
(c) If this Agreement is terminated (i) an by ACP pursuant to Section 6.07 after a bona fide Acquisition Proposal for ACP shall have been made to the Company publicly disclosed, or any of its stockholders person or any Person entity shall have publicly announced an disclosed a bona fide intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (Aii) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement by Planet pursuant to Section 8.2(a8.01, paragraphs (b) or (d), upon such termination ACP shall pay to Planet the Termination Fee.
(d) Any Termination Fee that becomes payable to Planet or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement ACP pursuant to this Section 8.2(b)8.02 shall be paid by wire transfer of immediately available funds to an account designated by ACP or Planet, and thereafter as the case may be, if this Agreement is terminated by either Parent or and the Company pursuant to termination meets the conditions set forth in this Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on 8.02 at or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 .
(the “Termination Fee”e) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless ACP and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges Planet agree that the agreements contained in this Section 8.5(bparagraphs (b), (c) and (d) above are an integral part of the transactions contemplated by this Agreement, that without such agreements ACP and that, without these agreements, Parent and Merger Sub Planet would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty. If ACP or Planet fails to promptly pay any amount the amounts due pursuant to this Section 8.5(b), and, under paragraph (b) or (c) above within the time periods specified in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b)paragraph (d) above, the Company party obligated to pay the Termination Fee shall pay to Parent or Merger Sub its all costs and expenses (including attorneys’ fees) incurred by the other party in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime rate of Citibank Bank of America, N.A. in effect on from the date such payment was amounts were required to be made through the date of 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 VII, this Agreement shall will terminate and 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, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided hereinthe provisions set forth in this Section 7.5, no such the reimbursement and indemnification provisions set forth in Section 5.18, Article VIII and the Confidentiality and Non-Disclosure Agreement will survive the termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) nothing herein will relieve the provisions set forth Company, Parent or Merger Sub from liability for any willful action or omission to act occurring prior to such termination, undertaken with the Knowledge of such party that the taking of such act or failure to act would result in the second sentence a breach of Section 9.1 shall survive the termination any of its representations, warranties or covenants in this Agreement. No termination of this Agreement shall be effective unless , and until notice of such termination shall have been given by the terminating any aggrieved party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not will be entitled to terminate this Agreement all rights and remedies at law or receive any notice thereofin equity, including the right of the aggrieved party to seek the benefit of its bargain (in the case of the Company, the benefit expected by the Company Stockholders).
(b) In The Company will pay to Parent or one or more Persons designated by Parent a termination fee of $137,300,000 in cash (the event that “Company Termination Fee”) if this Agreement is terminated as follows:
(i) by the Company pursuant to Section 7.3(a), such payment to be made before or concurrently with such termination; or
(ii) by Parent pursuant to Section 7.4(b), such payment to be made within two Business Days following such termination, unless at the time of Parent’s termination, the Company has provided notice of termination pursuant to Section 7.3(b), in which case no amount shall be payable pursuant to this Section 7.5(b)(ii); or
(iii) if (A) this Agreement is terminated pursuant to Section 7.2(b), Section 7.2(c) or Section 7.4(a) (in the case of Section 7.4(a) where the breach arises out of or results from an intentional act by the Company), (B) a Company Acquisition Proposal has been publicly announced and not withdrawn at any time prior to the date of such termination, and (C) within twelve months after the date of such termination, the Company enters into a definitive agreement relating to a Company Acquisition Proposal and such Company Acquisition Proposal is ultimately consummated (whether or not during the foregoing 12 month period) or the Company consummates a Company Acquisition Proposal, in which case (upon the occurrence of all of the events described in clauses (A) through (C) of this Section 7.5(b)(iii)), the Company will pay to Parent the Company Termination Fee on a date not later two Business Days after demand by Parent; provided, however, that for purposes of this Section 7.5(b)(iii), the references in the definition of Company Acquisition Proposal to “15% or more” will be deemed to be references to “more than 50%” and “less than 85%” will be deemed to be references to “less than 50%”; or
(iv) by Parent pursuant to Section 7.4(c), such payment to be made within two Business Days following such termination.
(c) The Company will pay to Parent or one or more Persons designated by Parent by way of reimbursement of the reasonable out-of-pocket costs incurred by Parent in connection with the transactions contemplated by this Agreement up to $20,000,000 if the Agreement is terminated by the Company or Parent pursuant to Section 7.2(c). Any Company Termination Fee that subsequently becomes payable hereunder shall have been made be reduced by any amount previously paid by the Company pursuant to this Section 7.5(c).
(d) Parent will pay to the Company or any of its stockholders one or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to more Persons designated by the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least a termination fee of $250,000,000 in cash (Athe “Parent Termination Fee”) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter if this Agreement is terminated as follows:
(i) by either Parent or the Company pursuant to Section 8.2(a7.2(b), if, as of the time of such termination, the only conditions to Closing set forth in Article VI that have not been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied if the Closing Date were the date the notice of termination is delivered) are those set forth in Section 6.1(b) (solely with respect to Antitrust Laws) or 8.2(b), (iiSection 6.1(d) this Agreement and such failure to be satisfied is terminated due to (A) by Parent the failure to receive any required consent or approval (including the expiration of any waiting period and any extension thereof under the HSR Act) from a Specified Governmental Entity pursuant to Section 8.4(a), Antitrust Laws or (B) any action (including the enacting, issuing, entry or promulgation of Orders or Laws or instituting of proceedings) by any Specified Governmental Entity to enjoin or otherwise prohibit the Merger or make it illegal pursuant to Antitrust Laws, such payment to be made concurrently with such termination, in the case of a termination by Parent, or within two Business Days following such termination, in the case of a termination by the Company; or
(ii) by Parent or the Company pursuant to Section 8.2(b) and7.2(a), on or prior to if the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement Order is terminated by the Company pursuant to Section 8.3(a)Antitrust Laws, then the Company shall promptly, but in no event later than two days after the date of such payment to be made concurrently with such termination, pay Parent in the case of a termination fee by Parent, or within two Business Days following such termination, in the case of $12,825,000 a termination by the Company.
(the “Termination Fee”e) All amounts paid pursuant to this Section 7.5 will be by wire transfer of same day funds; providedimmediately available funds to an account directed by the party hereto entitled to payment.
(f) Each of the Company, however, Parent and Merger Sub acknowledges that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) 7.5 are an integral part of the transactions contemplated by this Agreement, and that, (ii) without these agreements, Parent and Parent, Merger Sub and the Company would not enter into this Agreement; accordingly, if (iii) the Company fails to promptly pay any Termination Fee is not a penalty, but rather constitutes damages in a reasonable amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, that will compensate Parent or and Merger Sub commences in the circumstances in which such Company Termination Fee is payable, and (iv) the Parent Termination Fee is not a suit which results penalty, but rather constitutes damages in a judgment against reasonable amount that will compensate the Company for in the fee, circumstances in which such Parent Termination Fee is payable.
(g) In the event that the Company shall fail to which reference is made in this Section 8.5(b)pay the Company Termination Fee when due, the Company shall pay to reimburse Parent or and Merger Sub its for all reasonable costs and expenses actually incurred or accrued by them (including attorneys’ feesreasonable fees and expenses of counsel) in connection with such suitthe collection under and enforcement of this Section 7.5, together with interest on the amount of the fee Company Termination Fee at the prime rate of Citibank N.A. as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment.
(h) In the event that Parent shall fail to pay the Parent Termination Fee when due, Parent shall reimburse the Company for all costs and expenses actually incurred or accrued by it (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 7.5, together with interest on the Parent Termination Fee at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment.
(i) Except as otherwise expressly contemplated by Section 7.5(a), notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated in accordance with Article VII and the Company Termination Fee is paid to Parent (or its designee) in accordance with the provisions of this Agreement, payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent, Merger Sub and each of their respective Affiliates against the Company, the Company’s Subsidiaries and any of their respective former, current and future Affiliates, and each of their respective directors, officers, employees, stockholders, controlling Persons, agents or Representatives for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the transactions contemplated by this Agreement or in respect of any other document or theory of law or equity or in respect of any representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(j) Except as otherwise expressly contemplated by Section 7.5(a), notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated in accordance with Article VII and the Parent Termination Fee is paid to the Company (or its designee) in accordance with the provisions of this Agreement, payment of the Parent Termination Fee shall be the sole and exclusive remedy of the Company and its Affiliates against the Parent, Parent’s Subsidiaries, the Financing Sources and any of their respective former, current and future Affiliates, and each of their respective directors, officers, employees, stockholders, controlling Persons, agents or Representatives for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the transactions contemplated by this Agreement or in respect of any other document or theory of law or equity or in respect of any representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(k) No Financing Source shall have any liability for any obligations or liabilities of the parties hereto or for any claim (whether in tort, contract or otherwise), based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any oral representations made or alleged to be made in connection herewith. Notwithstanding any provision of this Agreement, in no event shall the Company or any of its stockholders, partners, members, Affiliates, directors, officers, employees, controlling persons and other Representatives (each, a “Company Related Party”), and the Company agrees not to and to cause its Company Related Parties not to, (A) seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Financing Source or (B) seek to enforce the commitment against, make any claims for breach of the Financing commitment against, or seek to recover monetary damages from, or otherwise s▇▇, the Financing Sources for any reason, including in connection with the Financing commitments (if any) or the obligations of Financing Sources thereunder. Nothing in this Section 7.5(k) shall in any way limit or qualify the obligations and liabilities of the parties to any commitment letter for a Financing to each other or in connection therewith.
Appears in 1 contract
Sources: Merger Agreement (Atmel 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither PPBI nor IDPK shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that IDPK shall pay PPBI the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 3.5 million (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by wire transfer of same day funds; providedPPBI pursuant to Section 8.01(f) or (h), however, that IDPK shall pay the entire Termination Fee to be paid PPBI on the second Business Day following the termination of this Agreement; or
(ii) if this Agreement is terminated by (A) PPBI pursuant to Section 8.01(b), (B) by either PPBI or IDPK pursuant to Section 8.01(c) and at the time of such termination no vote of the IDPK shareholders contemplated by this Agreement at the IDPK Meeting shall have occurred, or (C) by either PPBI or IDPK pursuant to Section 8.01(e), and in addition thereto, in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been publicly announced or otherwise communicated or made known to the senior management of IDPK or the IDPK Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention 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 IDPK contemplated by this Agreement at the IDPK Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 12 months after such termination IDPK enters into an agreement with respect to a Control Transaction, then IDPK shall pay to PPBI an amount equal to $1.5 million on the date of execution of such agreement and upon consummation of any such Control Transaction at any time thereafter, IDPK shall pay to PPBI the remainder of the Termination Fee on the date of such consummation and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with IDPK within 15 months after such termination, then IDPK shall pay to PPBI the Termination Fee (less any amount previously paid by IDPK pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “publicly withdrawnControl Transaction” means (i) the acquisition by any Person ifwhether by purchase, within 12 months of such terminationmerger, the Company consolidation, sale, transfer or otherwise, in one transaction or any series of its Subsidiaries transactions, of a majority of the voting power of the outstanding securities of IDPK or a majority of the assets of IDPK, (ii) any issuance of securities resulting in the ownership by any Person of more than 50% of the voting power of IDPK or by any Person other than IDPK of more than 50% of the voting power of IDPK or (iii) any merger, consolidation or other business combination transaction involving IDPK as a result of which the shareholders of IDPK cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made account designated by or on behalf of such Person or any of its Affiliates. The Company acknowledges PPBI.
(c) IDPK and PPBI agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement PPBI would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by IDPK. If IDPK fails to promptly pay any amount PPBI the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), andprovided that PPBI prevails on the merits in connection with any action, in order including the filing of any lawsuit taken to obtain collect payment of such paymentamounts, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company IDPK shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by PPBI in connection with such suitaction, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pacific Premier Bancorp Inc)
Effect of Termination and Abandonment. (a) In Except as provided in Section 8.02(b), in the event of termination of this Agreement and the abandonment of the Merger is terminated pursuant to this Article VIII, this Agreement shall forthwith become void and of no effect with and there shall be no liability or obligation on the part of any party hereto (or of any of its such party’s Representatives or Affiliates), except as provided in the provisions of Section 6.03(b) (Access and Reports; Confidentiality), Section 6.07 (Expenses), Section 6.09(f) (Debt Financing), this Section 8.02 and Article IX (Miscellaneous), which provisions shall survive such termination; provided, however, that (i) except as otherwise provided hereinsubject to Section 8.02(e), no such termination shall relieve any party hereto of any liability or for damages to any other party hereto resulting from any willful Willful Breach by such party prior to such termination, and the aggrieved party will be entitled to all rights and remedies available at law or intentional breach of this Agreement and in equity (ii) the provisions set forth including, in the second sentence case of Section 9.1 shall survive a Willful Breach by Parent or Merger Sub (and irrespective of whether the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have Parent Termination Fee has been given paid by the terminating party Parent pursuant to Section 9.6, specifying the provision or provisions of 8.02(c))). The parties hereto acknowledge and agree that nothing in this Section 8.1, 8.2, 8.3 or 8.4 pursuant 8.02 shall be deemed to which termination has been effected. Merger Sub shall not be entitled affect their right to terminate this Agreement or receive any notice thereofspecific performance under Section 9.11.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(c)(i), then the Company shall promptly, but in no event later than two days ;
(ii) after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless Agreement and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended prior to the Company’s stockholders or otherwise not opposedShareholders Meeting, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an a bona fide Acquisition Proposal shall not be deemed to have been “publicly withdrawn” announced or publicly disclosed and not have been withdrawn prior to the Shareholders Meeting and thereafter (A) this Agreement is terminated by any Person if, Parent or the Company pursuant to Section 8.01(b)(ii) and (B) within 12 months of one (1) year after such termination, the Company or any of its Subsidiaries shall have entered enters into an Alternative a definitive agreement to consummate such Acquisition Proposal; or
(iii) this Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made is terminated by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 8.5(b8.01(d)(i), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of 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 VIIIany provision of Section 8.1, this Agreement shall forthwith become void and of have no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates); providedfurther force, however, except that (i) except as otherwise provided hereinthe first sentence of Section 5.2(i) and Section 5.3(g), no this Section 8.2 and Article 9 shall survive such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and remain in full force and effect and (ii) the provisions set forth in the second sentence termination shall not relieve a party of Section 9.1 shall survive the termination any liability for a willful breach of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) If this Agreement is terminated, expenses and damages of the parties hereto shall be determined as follows:
(1) Except as provided below, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses.
(2) In the event that (i) an Acquisition Proposal of a willful breach of any representation, warranty, covenant or agreement contained in this Agreement, the breaching party shall have been made to be liable for any and all damages, costs and expenses, including all reasonable attorneys' fees, sustained or incurred by the Company non-breaching party as a result thereof or any of its stockholders in connection therewith or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company enforcement of its rights hereunder.
(3) As a condition of Parent's willingness, and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior in order to termination of induce Parent to enter into this Agreement, with respect and to termination of reimburse Parent for incurring the costs and expenses related to entering into this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of consummating the transactions contemplated by this Agreement, Bank hereby agrees to pay Parent, and thatParent shall be entitled to payment of, without these agreementsa fee of $500,000 (the "Bank Fee"), within three business days after written demand for payment is made by Parent, following the occurrence of any of the events set forth below:
(A) This Agreement is terminated pursuant to Sections 8.1(f) and (g); or
(B) The entering into a definitive agreement by Bank relating to an Acquisition Proposal or the consummation of an Acquisition Proposal involving Bank within twelve months after the occurrence of any of the following: (i) the termination of the Agreement by Parent pursuant to Section 8.1(b) because of a willful breach by Bank; or (ii) the failure of the shareholders of Bank to approve this Agreement after the occurrence of an Acquisition Proposal.
(4) If demand for payment of the Bank Fee is made pursuant to Section 8.2(b)(3) and Merger Sub would payment is timely made, then Parent will not enter into have any other rights or claims against Bank, or their respective officers and directors, under this Agreement; accordingly, if it being agreed that the Company fails to promptly pay any 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount acceptance of the fee at Bank Fee under Section 8.2(b)(3) will constitute the prime rate sole and exclusive remedy of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentParent against Bank and their respective officers and directors.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by any of Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them shall have any liability of any nature whatsoever hereunder, or Affiliates)in connection with the transactions contemplated hereby, except that Sections 6.5, 6.20 and 9.4 and this Section 8.2 and 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 (i) except as otherwise provided that, notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(h) or by the Company pursuant to Section 8.1(i), the Company shall pay to Buyer an amount equal to the sum of (i) $2,478,000 (the “Termination Fee”), plus (ii) an Acquisition Proposal shall have been made amount not to exceed, in the aggregate, $375,000 for the documented out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts and consultants, incurred by Buyer or on its respective behalf in connection with or related to the preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.1(e) or any Section 8.1(c) due to the failure to obtain the approval of its stockholders or any Person shall have publicly announced an intention the Company’s shareholders required for the consummation of the Merger, and (whether or not conditionali) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior announced, disclosed or otherwise communicated to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), Board and (ii) this Agreement is terminated within twelve (A12) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement a definitive agreement with respect to, or the Company shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposedconsummated, an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the sum of the Termination Fee, plus the Buyer Expenses.
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(b) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board and (ii) within twelve (12) months of such termination, the Company shall have entered into a definitive agreement with respect to, or the Company shall have consummated, an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the sum of the Termination Fee, plus the Buyer Expenses.
(e) Any payment of the Termination Fee and/or the Buyer Expenses required to be made pursuant to this Section 8.2 shall be made not more than five (5) Business Days after the date of the event giving rise to the obligation to make such payment, unless such amount is payable as a result of the termination of this Agreement by the Company pursuant to Section 8.1(i), in which case, such amount 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 Buyer. No payment of the Termination Fee and/or Buyer Expenses under this Section 8.2 shall limit in any respect any rights or on behalf remedies available to Buyer relating to any breach or failure of such Person the Company to perform any representation, warranty, covenant or any of its Affiliates. The agreement set forth in this Agreement resulting, directly or indirectly, in the right to receive the Termination Fee and/or Buyer Expenses under this Section 8.2.
(f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 8.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub Buyer would not enter into this Agreement; accordingly. Accordingly, if the Company fails promptly to promptly pay any amount due pursuant to this Section 8.5(b), 8.2 and, in order to obtain such payment, Parent or Merger Sub Buyer commences a suit which results in a judgment against the Company for the fee, to which reference is made amount set forth in this Section 8.5(b)8.2, the Company shall pay to Parent or Merger Sub Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) in connection with such suit, together with interest on the amount of the fee Termination Fee and/or Buyer Expenses at the prime rate of Citibank N.A. published in the Wall Street Journal in effect on the date such payment was required to be made through the date of paymentmade.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Transactions pursuant to this Article VIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party 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 Party hereto of any liability or damages resulting from to pay the Termination Fee pursuant to this Section 10.5, (ii) no such termination shall relieve any of the Parties of liability for any willful or intentional and material breach of this Agreement prior to termination; and (iiiii) the provisions set forth agreements of the parties contained in this Section 10.5, Article XI and the second sentence of Section 9.1 Confidentiality Agreement shall survive the termination of this Agreement (in the case of the Confidentiality Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by , subject to the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice terms thereof).
(b) In the event that that:
(i) an Acquisition Proposal shall have been made (x) this Agreement is terminated pursuant to Section 10.2(a) (in the Company case of Section 10.2(a) only, before obtaining the Trust Shareholder Approvals), Section 10.2(b), or Section 10.4(b) (as a result of any of its stockholders or willful breach), (y) any Person shall have publicly announced an intention (whether disclosed or not conditional) shall have made known to make an the Board of Trust Managers of Trust a bona fide Acquisition Proposal with respect after the date hereof and prior to the Company and such termination (unless irrevocably and, if such Acquisition Proposal or publicly announced intention shall not have been is public, publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(bsuch termination), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a(z) or 8.2(b), within twelve (ii12) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company Trust shall have entered into an Alternate Acquisition Agreement a definitive agreement with respect to, to an Acquisition Proposal or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have been be references to “publicly withdrawn” 50%”);
(ii) this Agreement is terminated by any Person ifCIM pursuant to Section 10.4(a); or
(iii) this Agreement is terminated by Trust pursuant to Section 10.3(a); then Trust shall:
(A) in the case of clause (i) above, promptly, but in no event later than three (3) Business Days after the date on which Trust consummates the Acquisition Proposal referred to in subclause (i)(z) above, pay CIM the Termination Fee by wire transfer of immediately available funds; provided, however, the portion of the Termination Fee representing the Expense Reimbursement is payable within 12 months the later of the aforesaid three (3) Business Day Period and two Business Days after receipt from CIM of an invoice therefor; and
(B) in the case of clause (ii) and (iii) above, immediately prior to or substantially concurrently with such termination, pay CIM the Company or any Termination Fee by wire transfer of its Subsidiaries immediately available funds (it being understood that in no event shall have entered into an Alternative Acquisition Agreement with respect toTrust be required to pay the Termination Fee on more than one occasion); provided, or shall have consummated or shall have approvedhowever, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part portion of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if Termination Fee representing the Company fails to promptly pay any 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 Company for the fee, to which reference Expense Reimbursement is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount payable within two Business Days after receipt from CIM of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentan invoice therefor.
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 VIII8, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliatesaffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided specified herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any the willful or intentional material breach of this Agreement or the willful failure on the part of any party to fulfill in any material respect a condition to the performance of the other party. The provisions of this Section 8.05 and (ii) the provisions set forth in the second sentence of Section 9.1 Confidentiality Agreement shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) 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 have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 three business days prior to termination the date of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (Bthe Company Stockholders Meeting) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated either by either Parent Acquiror or the Company pursuant to either Section 8.2(a8.02(i) or 8.2(bSection 8.02(ii), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.03(b) or (iii) this Agreement is terminated by Acquiror pursuant to Section 8.04(a)(i), then the Company shall promptly, but in no event later than two days after the date of such terminationtermination (or, in the case of a termination by the Company pursuant to Section 8.03(b), as a condition to a valid termination by the Company pursuant to Section 8.03(b)), pay Parent Acquiror a termination fee of $12,825,000 23.5 million (the “Termination Fee”) by wire transfer of same day funds); provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent Acquiror pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person ifuntil, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposedconsummated, an Acquisition Proposal made by or on behalf Proposal. The Company’s payment under this Section 8.05 shall be the sole and exclusive remedy of such Person or Acquiror and Merger Sub for damages against the Company and any of its AffiliatesSubsidiaries and their respective Representatives with respect to such termination or any breach of any covenant or agreement giving rise to such payment. The Company acknowledges that the agreements contained in this Section 8.5(b) 8.05 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent Acquiror and Merger Sub would not enter into this Agreement; accordingly. Accordingly, if the Company fails to reasonably promptly pay any the amount due pursuant to this Section 8.5(b)8.05, and, in order to obtain such payment, Parent Acquiror or Merger Sub commences a suit which that results in a judgment against the Company for the fee, to which reference is made fee set forth in this Section 8.5(b)8.05 or any portion of such fee, the Company shall pay to Parent Acquiror or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Merger Agreement (Saxon Capital 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 VIII9, this Agreement shall terminate and 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, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in this Section 9.05, Article 10 (Miscellaneous and General) and the second sentence agreements of the Company, Parent and Merger Sub contained in Section 9.1 7.10 (Expenses), the indemnification and reimbursement obligations of Parent pursuant to Section 7.13(b) (Financing) and Section 7.14(f) (Debt Tender Offers; Credit Agreement; Repatriation of Cash), the Guarantees (to the extent set forth therein) and the Confidentiality Agreements shall survive the termination of this Agreement. No termination ; and (ii) nothing herein shall relieve the Company, Parent or Merger Sub from liability for any fraud or material breach of any of its representations, warranties, covenants and agreements set forth in this Agreement occurring prior to such termination, and any aggrieved party shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate all rights and remedies at law or in equity, including the right of the aggrieved party to seek the benefit of its bargain (in the case of the Company, the bargain lost by the Company’s shareholders). For the avoidance of doubt, this Agreement or receive any notice thereofSection 9.05(a) shall be subject to the limitations on liability contained in Sections 9.05(b), (c) and (f), as applicable to the relevant party.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditionalx) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated (1) by either Parent or the Company pursuant to Section 8.2(a9.02(a), (2) by either Parent or the Company pursuant to Section 9.02(b) or 8.2(b(3) by Parent pursuant to Section 9.04(b) (but only if such termination is in respect of the Company’s breach of its obligations in Sections 7.01 through 7.05 and 7.12 through 7.14), (y) any Person shall (as of the Termination Date, in the case of the foregoing clause (1), as of the Shareholder Meeting at which the adoption of this Agreement by the shareholders of the Company referred to in Section 8.01(a) shall not have been obtained upon a vote taken thereon, in the case of the foregoing clause (2), or prior to the breach in the case of the foregoing clause (3)) have publicly announced or disclosed (or in the case of clause (3) disclosed privately to the Company) and not withdrawn in a bona fide manner an Acquisition Proposal and (z) at any time after the execution of this Agreement and prior to the first anniversary of such termination the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or the transactions contemplated by any Acquisition Proposal are 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 (A) by Parent pursuant to Section 8.4(a9.04(a), or (B) 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) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a9.03(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 1 contract
Sources: Merger Agreement (Heinz H J Co)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability on Buyer, the part Company, any of their respective Subsidiaries or any party hereto (of the officers or directors of any of its Representatives them shall have any liability of any nature whatsoever hereunder, or Affiliates)in connection with the transactions contemplated hereby, except that Sections 6.4, 6.14 and 9.4 and this Section 8.2 and 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 (i) except as otherwise provided that, notwithstanding anything to the contrary herein, no such termination neither Buyer nor the Company shall relieve be relieved or released from any party hereto liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay to Buyer an amount equal to $5,500,000 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.1(e) or Section 8.1(c) due to the failure to obtain the approval of the Company’s shareholders required for the consummation of the Merger, and (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days announced, disclosed or otherwise communicated to the Company Board prior to termination of this Agreement, with respect to termination of this Agreement pursuant to the date specified in Section 8.2(a), or (B8.1(c) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Company Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(aand (ii) shall have occurred, or within twelve (iii12) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement a definitive agreement with respect to, or the Company shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposedconsummated, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this AgreementTransaction, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), then the Company shall pay to Parent Buyer an amount equal to the Termination Fee.
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(b) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or Merger Sub its costs and expenses (including attorneys’ feesotherwise communicated to the Company Board 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(b) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.and
Appears in 1 contract
Sources: Merger Agreement (Merrill Merchants Bancshares 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise provided hereinset forth in subsection (b), no such (c) and (d) below and Section 9.01, (ii) that termination shall will not relieve a breaching party from liability for any party hereto willful breach of any liability covenant, agreement, representation or damages resulting from any willful or intentional breach warranty of this Agreement giving rise to such termination and (iiiii) the provisions set forth in the second sentence any other provision of Section 9.1 shall survive this Agreement which expressly survives the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(g) or Section 8.01(h), then or (ii) is terminated by Parent pursuant to Section 8.01 (e), (f) or (g), upon any such termination the Company shall promptly, but in no event later than two days after the date of such termination, pay to Parent a termination fee fee, representing liquidated damages, of $12,825,000 3,600,000 (the “Termination Fee”). The payment of the Termination Fee shall be the sole and exclusive remedy available to a party with respect to the breach of any covenant or agreement giving rise to such a payment.
(c) In the event this Agreement is terminated by Parent because the Company breached any covenant or obligation contained in this Agreement and that breach entitled Parent to terminate this Agreement pursuant to Section 8.01(b) (provided that the Company is not entitled to terminate this Agreement at such time pursuant to Section 8.01(b)), the Company will pay Parent the Termination Fee in immediately available funds as agreed-upon liquidated damages and as the sole and exclusive remedy of Parent under this Agreement.
(d) In the event this Agreement is terminated by the Company because Parent breached any covenant or obligation contained in this Agreement and that breach entitled the Company to terminate this Agreement under Section 8.01(b) (provided that Parent is not entitled to terminate this Agreement at such time pursuant to Section 8.01(b)), Parent will pay the Company the Termination Fee in immediately available funds as agreed-upon liquidated damages and as the sole and exclusive remedy of the Company under this Agreement.
(e) Any amount that becomes payable to a party pursuant to this Section 8.02 shall be paid by wire transfer of same day funds; provided, however, that immediately available funds to an account designated by such party either if this Agreement is terminated by a party and the Termination Fee to be paid pursuant to clause (iii) shall be paid as termination meets the conditions set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of 8.02 at or prior to such termination by the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal party.
(substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. f) The Company acknowledges and Parent agree that the agreements contained in this Section 8.5(bparagraphs (b), (c), (d) and (e) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, such agreements Parent and Merger Sub the Company would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty. If a party fails to promptly pay any amount the other party the amounts due pursuant to this Section 8.5(bunder paragraph (b), and(c) and (d) above within the time period specified in paragraph (e) above, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company party shall pay to Parent or Merger Sub its all costs and expenses (including attorneys’ fees) incurred by the other party in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime or base rate of Citibank Bank of America, N.A. in effect on from the date such payment was amounts were required to be made through the date of 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, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its Representatives directors, officers, employees, agents, legal and financial advisors or Affiliatesother representatives); provided, however, that except (i) except as otherwise provided herein, in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(bi) In Napa shall immediately pay or cause to be paid a termination fee, representing liquidated damages, of $1.9 million (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following: (1) in the event that (iA) an Acquisition Proposal shall have been made to the Company Napa or any of its stockholders shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company Napa and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company Napa pursuant to (x) Section 8.2(a8.02(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 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), inaction of Napa or (By) by the Company pursuant to Section 8.2(b8.02(b)(ii) and, on or prior to the date and (C) within twelve (12) months of the Stockholders Meetingtermination of this Agreement, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or Napa consummates an Acquisition Proposal; (iii2) this Agreement is terminated by the Company Napa pursuant to Section 8.3(a8.03(a), then the Company ; or (3) this Agreement is terminated by Parent or Bank pursuant to Section 8.04(b) or Section 8.04(c).
(ii) Any Termination Fee or Shareholder Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two days Business Days after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, provided that the Termination Fee to be paid pursuant with respect to clause (iii2) shall be paid as set forth in of Section 8.3; provided8.05 (b)(i), further, that no the Termination Fee shall be payable paid by Napa prior to Parent pursuant termination of this Agreement; and provided further that with respect to clause (i1) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”8.05(b)(i); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries Termination Fee shall have entered be paid prior to Napa’s entering into an Alternative Acquisition Agreement with respect toor -56- consummating, approving or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, recommending an Acquisition Proposal made by or on behalf within two Business Days following notice from Parent if Napa shall have failed to oppose such Acquisition Proposal.
(iii) Such Termination Fee or Shareholder Termination Fee, as the case may be, shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such Person or any of its Affiliates. The Company payment, subject to Section 8.05(c).
(c) Napa acknowledges that the agreements contained in this Section 8.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, such agreements Parent and Merger Sub Bank would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty. If Napa fails to promptly pay Parent any amount amounts due pursuant to this Section 8.5(b)under paragraph (b) above within the time period specified therein, and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company Napa shall pay to Parent or Merger Sub its all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime rate of Citibank N.A. interest printed in effect The Wall Street Journal on the date such payment was required to be made through the date of paymentmade. ARTICLE IX MISCELLANEOUS 9.
Appears in 1 contract
Sources: Merger Agreement
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 10.5(b) and Section 10.5(c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto Party (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.-64- 052054-0169-16505-Active.27978848.6 SC1:4755315.9
(b) In the event that this Agreement is terminated: (i) an by either L3 or ▇▇▇▇▇▇ pursuant to Section 10.2(a) [Outside Date] or Section 10.2(c)(i) [Requisite L3 Vote Not Obtained], or by ▇▇▇▇▇▇ pursuant to Section 10.3(b) [L3 Material Breach], and, in each case, a bona fide Acquisition Proposal with respect to L3 shall have been publicly made directly to the Company stockholders of L3 or any of its stockholders shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company L3 (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A1) 10 business days prior to termination the date of this Agreementsuch termination, with respect to any termination of this Agreement pursuant to Section 8.2(a)10.2(a) [Outside Date] or Section 10.3(b) [L3 Material Breach], or (B2) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the L3 Stockholders Meeting, any event giving rise with respect to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company termination pursuant to Section 8.3(a10.2(c)(i) [Requisite L3 Vote Not Obtained]), then the Company shall promptly, but in no event later than two days and within twelve (12) months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”1) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company L3 or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, to any Acquisition Proposal with respect to L3 or (2) there shall have been consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an any Acquisition Proposal made by with respect to L3 (in each case of clauses (1) and (2), with forty percent (40%) being substituted in lieu of fifteen percent (15%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or on behalf concurrently with the occurrence of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part either of the transactions contemplated events described in the foregoing clauses (B)(1) or (B)(2), (ii) by 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 any amount due ▇▇▇▇▇▇ pursuant to this Section 8.5(b)10.3(a) [L3 Change of Recommendation], andthen promptly, but in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses no event later than three (including attorneys’ fees3) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through Business Days after the date of payment.such termination, or (iii) by either ▇▇▇▇▇▇ or L3 pursuant to Section 10.2(c)
(i) [Requisite L3 Vote Not Obtained] (and, at the time of such termination pursuant to Section 10.2(c)
Appears in 1 contract
Sources: Merger Agreement (Harris 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 VII, this Agreement shall will terminate and 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, that and notwithstanding anything in the foregoing to the contrary, (i) except as otherwise provided hereinthe provisions set forth in this Section 7.5, no such the reimbursement and indemnification provisions set forth in Section 5.21, Article VIII and the Confidentiality and Non-Disclosure Agreement will survive the termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) nothing herein will relieve the provisions set forth Company, Parent or Merger Sub from liability for any willful action or omission to act occurring prior to such termination, undertaken with the Knowledge of such party that the taking of such act or failure to act would result in the second sentence a breach of Section 9.1 shall survive the termination any of its representations, warranties or covenants in this Agreement. No termination of this Agreement shall be effective unless , and until notice of such termination shall have been given by the terminating any aggrieved party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not will be entitled to terminate this Agreement all rights and remedies at law or receive any notice thereofin equity, including the right of the aggrieved party to seek the benefit of its bargain (in the case of the Company, the benefit expected by the Company Stockholders).
(b) In The Company will pay to Parent or one or more Persons designated by Parent a termination fee of $137,300,000 in cash (the event that (i“Company Termination Fee”) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter if this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), as follows:
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (Bi) by the Company pursuant to Section 8.2(b7.3(a), such payment to be made before or concurrently with such termination;
(ii) andby Parent pursuant to Section 7.4(b), on such payment to be made within two Business Days following such termination, unless at the time of Parent’s termination, the Company has the right to terminate this Agreement pursuant to Section 7.3(b), Section 7.3(d) or Section 7.3(e), in which case no amount shall be payable pursuant to this Section 7.5(b)(ii); or
(iii) if (A) this Agreement is terminated pursuant to Section 7.2(b), Section 7.2(c) or Section 7.4(a) (in the case of Section 7.4(a) where the breach arises out of or results from an intentional act by the Company), (B) a Company Acquisition Proposal has been publicly announced and not withdrawn at any time prior to the date of the Stockholders Meetingsuch termination, any event giving rise to Parent’s right to terminate under Section 8.4(aand (C) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days within twelve months after the date of such termination, the Company enters into a definitive agreement relating to a Company Acquisition Proposal and such Company Acquisition Proposal is ultimately consummated (whether or not during the foregoing 12 month period) or the Company consummates a Company Acquisition Proposal, in which case (upon the occurrence of all of the events described in clauses (A) through (C) of this Section 7.5(b)(iii)), the Company will pay to Parent the Company Termination Fee on a termination fee of $12,825,000 (the “Termination Fee”) date not later two Business Days after demand by wire transfer of same day fundsParent; provided, however, that for purposes of this Section 7.5(b)(iii), the Termination Fee references in the definition of Company Acquisition Proposal to “15% or more” will be deemed to be paid references to “more than 50%” and “less than 85%” will be deemed to be references to “less than 50%”; or
(iv) by Parent pursuant to clause Section 7.4(c), such payment to be made within two Business Days following such termination.
(c) Parent will pay to the Company or one or more Persons designated by the Company a termination fee of $41,100,000 in cash (the “Parent Termination Fee”) if this Agreement is terminated as follows:
(i) by the Company pursuant to Section 7.3(e), such payment to be made within two Business Days following such termination;
(ii) by the Company pursuant to Section 7.3(c), such payment to be made within two Business Days following such termination, unless at the time of the Company’s termination, Parent has the right to terminate this Agreement pursuant to Section 7.4(a) or Section 7.4(c), in which case no amount shall be payable pursuant to this Section 7.5(c)(ii);
(iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent if (A) this Agreement is terminated pursuant to clause Section 7.2(b), Section 7.2(d) or Section 7.3(b) (iin the case of Section 7.3(b) where the breach arises out of or results from an intentional act by Parent or Merger Sub), (B) a Parent Acquisition Proposal has been publicly announced and not withdrawn at any time prior to the date of such termination, and (C) within twelve months after the date of such termination, Parent enters into a definitive agreement relating to a Parent Acquisition Proposal and such Parent Acquisition Proposal is ultimately consummated (whether or not during the foregoing 12 month period) or Parent consummates a Parent Acquisition Proposal, in which case (upon the occurrence of all of the events described in clauses (A) through (C) of this Section 8.5(b) unless and until within 12 months of such termination 7.5(c)(iii)), Parent will pay to the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Parent Termination Fee on a date not later two Business Days after demand by the Company’s stockholders or otherwise not opposed; provided, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided however, that for purposes of this AgreementSection 7.5(c)(iii), an the references in the definition of Parent Acquisition Proposal shall not to “15% or more” will be deemed to have been be references to “publicly withdrawnmore than 50%” and “less than 85%” will be deemed to be references to “less than 50%”; or
(iv) by any Person ifthe Company pursuant to Section 7.3(d), such payment to be made within 12 months of two Business Days following such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. .
(d) The Company acknowledges that will pay to Parent or one or more Persons designated by Parent by way of reimbursement of the agreements contained reasonable out-of-pocket costs incurred by Parent in this Section 8.5(b) are an integral part of connection with the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, Agreement up to $41,100,000 if the Agreement is terminated by the Company fails or Parent pursuant to promptly Section 7.2(c). Parent will pay to the Company or one or more Persons designated by the Company by way of reimbursement of the reasonable out-of-pocket costs incurred by the Company in connection with the transactions contemplated by this Agreement up to $41,100,000 if the Agreement is terminated by the Company or Parent pursuant to Section 7.2(d) or Section 7.3(f). Any Parent Termination Fee or Company Termination Fee that subsequently becomes payable hereunder shall be reduced by any amount due previously paid by the applicable party pursuant to this Section 8.5(b7.5(d), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.
Appears in 1 contract
Sources: Merger Agreement (Atmel 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise provided hereinset forth in this Section 8.02 and Section 9.01, no and any other Section which, by its terms, relates to post-termination rights or obligations, shall survive such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and remain in full force and Table of Contents effect, and (ii) the provisions set forth in the second sentence that termination will not relieve a breaching party from liability for any willful breach of Section 9.1 shall survive the termination of this Agreement. No termination any covenant, agreement, representation or warranty of this Agreement shall be effective unless and until notice of giving rise to such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereoftermination.
(b) In the event that (i) an Acquisition Proposal the Merger is terminated, NFCU, Parent and Nationwide shall have been made pay expenses related to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to and the transactions contemplated hereby as set forth in Schedule 8.02(b).
(c) In the event of termination or abandonment for a reason specified in Section 8.2(a8.01, subsections (a) – (g), or Parent will for a period not to exceed twelve (B12) five business days prior months provide NFCU (1) access to termination of this AgreementNFCU’s present premises, with respect including ATM locations, (2) access to termination of this Agreement pursuant to Section 8.2(b)Parent services, e.g. communications, data transfer and support, and thereafter this Agreement is terminated by either Parent or the Company pursuant (3) provide for a period not to Section 8.2(aexceed six (6) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date months use of the Stockholders Meeting, any event giving rise to name and marks of Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, Parent shall not be required by this provision to increase the level of such services except in the ordinary course of business and; further provided, however, that the Termination Fee to be paid pursuant to clause (iii) Parent shall be paid as set forth in Section 8.3; provided, further, under no obligation to provide services that no Termination Fee shall be payable support NFCU’s marketing efforts which are directed to Parent pursuant to clause non-Members.
(id) In the event of a termination of this Section 8.5(b) unless and until within 12 months Agreement because of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect toa willful breach of any representation, warranty, covenant or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” agreement contained in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal the breaching party shall not be deemed to have been “publicly withdrawn” by remain liable for any Person ifand all damages, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (expenses, including all reasonable attorneys’ fees) , sustained or incurred by the non-breaching party as a result thereof or in connection therewith or with such suit, together with interest on respect to the amount enforcement of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymentits rights hereunder.
Appears in 1 contract
Sources: Merger Agreement (Nationwide Financial Services 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither Washington Federal nor First Mutual shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that First Mutual shall pay Washington Federal the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 7.5 million (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by wire transfer of same day funds; providedWashington Federal pursuant to Section 8.01(f) or (g), however, that First Mutual shall pay the entire Termination Fee to be paid Washington Federal on the second Business Day following the termination of this Agreement; or
(ii) if this Agreement is terminated by (A) Washington Federal pursuant to Section 8.01(b), (B) by either Washington Federal or First Mutual pursuant to Section 8.01(c) and at the time of such termination no vote of the First Mutual stockholders contemplated by this Agreement at the First Mutual Meeting shall have occurred, or (C) by either Washington Federal or First Mutual pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by announced or otherwise communicated or made known to the senior management of First Mutual or the First Mutual Board (or any Person ifshall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of First Mutual contemplated by this Agreement at the First Mutual Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 12 15 months after such termination First Mutual enters into an agreement with respect to a Control Transaction, then First Mutual shall pay to Washington Federal an amount equal to $5.0 million on the date of execution of such agreement and upon consummation of any such Control Transaction at any time thereafter, First Mutual shall pay to Washington Federal the remainder of the Termination Fee on the date of such consummation and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with First Mutual within 18 months after such termination, then First Mutual shall pay to Washington Federal the Company or Termination Fee (less any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended amount previously paid by First Mutual pursuant to clause (1) above) on the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf date of such Person or any consummation of its Affiliatessuch Control Transaction. The Company acknowledges that the agreements contained As used in this Section 8.5(b) are an integral part of the transactions contemplated by 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 any amount due pursuant to this Section 8.5(b8.02(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.“Control
Appears in 1 contract
Effect of Termination and Abandonment. (a) In If this Agreement is terminated and the event of Merger is abandoned, neither party will have any liability or further obligation under this Agreement, except that termination will not relieve a party from liability for any willful or deliberate breach by it of this Agreement and the abandonment of the Merger pursuant to this Article VIIIexcept that Section 6.05(b), this Agreement shall become void Section 8.02 and of no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall Article IX will survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company CB Bancshares or any of its stockholders shareholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), CB Bancshares and thereafter this Agreement is terminated by either Parent or the Company party pursuant to (x) Section 8.2(a8.01(e) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or 8.2(b), inaction of the non-terminating party or (y) Section 8.01(c) for failure to obtain CB Bancshares’ shareholder approval or (ii) this Agreement is terminated (A) by Parent Central Pacific pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(d), then the Company CB Bancshares shall promptly, but in no event later than two 2 business days after the date of such termination, pay Parent a termination fee fee, representing liquidated damages, of $12,825,000 12,520,000 (the “Termination Fee”) ), by wire transfer of same day fundsimmediately available funds to an account specified by Central Pacific; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent Central Pacific pursuant to clause (i) or (ii) of this Section 8.5(bparagraph (b) unless and until within 12 18 months following the termination of such termination the Company shall have entered this Agreement, a transaction constituting an Acquisition Transaction is consummated or CB Bancshares enters into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, agreement providing for an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for Transaction. For purposes of this Agreement, an the term “Acquisition Proposal Transaction” shall not be deemed to have been “publicly withdrawn” mean (i) the direct or indirect acquisition, purchase or assumption of all or a substantial portion of the assets or deposits of CB Bancshares, (ii) the acquisition by any Person ifperson of direct or indirect beneficial ownership (including by way of merger, within 12 months consolidation, share exchange or otherwise) of 25% or more of the outstanding shares of voting stock of CB Bancshares, or (iii) a merger, consolidation, business combination, liquidation, dissolution or similar transaction of or involving CB Bancshares, other than a merger, business combination or similar transaction if (x) the shareholders of CB Bancshares immediately before any such transaction own at least 60% of the voting stock of the entity surviving such transaction (or the parent thereof) immediately following such transaction, and (y) as a result of such termination, the Company transaction no person or any of its Subsidiaries group shall have entered into an Alternative Acquisition Agreement with respect to, own or shall have consummated control 25% or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part more of the transactions contemplated by 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 any 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount voting stock of the fee at surviving entity (or parent thereof) immediately following the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymenttransaction.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In If this Agreement is terminated and the event of Merger is abandoned, neither party will have any liability or further obligation under this Agreement, except that termination will not relieve a party from liability for any willful or deliberate breach by it of this Agreement and the abandonment of the Merger pursuant to this Article VIIIexcept that Section 6.05(b), this Agreement shall become void Section 8.02 and of no effect with no liability on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall Article IX will survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company CB Bancshares or any of its stockholders shareholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), CB Bancshares and thereafter this Agreement is terminated by either Parent or the Company party pursuant to (x) Section 8.2(a8.01(e) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or 8.2(b), inaction of the non-terminating party or (y) Section 8.01(c) for failure to obtain CB Bancshares' shareholder approval or (ii) this Agreement is terminated (A) by Parent Central Pacific pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a8.01(d), then the Company CB Bancshares shall promptly, but in no event later than two 2 business days after the date of such termination, pay Parent a termination fee fee, representing liquidated damages, of $12,825,000 12,520,000 (the “"Termination Fee”) "), by wire transfer of same day fundsimmediately available funds to an account specified by Central Pacific; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent Central Pacific pursuant to clause (i) or (ii) of this Section 8.5(bparagraph (b) unless and until within 12 18 months following the termination of such termination the Company shall have entered this Agreement, a transaction constituting an Acquisition Transaction is consummated or CB Bancshares enters into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, agreement providing for an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for Transaction. For purposes of this Agreement, an the term "Acquisition Proposal Transaction" shall not be deemed to have been “publicly withdrawn” mean (i) the direct or indirect acquisition, purchase or assumption of all or a substantial portion of the assets or deposits of CB Bancshares, (ii) the acquisition by any Person ifperson of direct or indirect beneficial ownership (including by way of merger, within 12 months consolidation, share exchange or otherwise) of 25% or more of the outstanding shares of voting stock of CB Bancshares, or (iii) a merger, consolidation, business combination, liquidation, dissolution or similar transaction of or involving CB Bancshares, other than a merger, business combination or similar transaction if (x) the shareholders of CB Bancshares immediately before any such transaction own at least 60% of the voting stock of the entity surviving such transaction (or the parent thereof) immediately following such transaction, and (y) as a result of such termination, the Company transaction no person or any of its Subsidiaries group shall have entered into an Alternative Acquisition Agreement with respect to, own or shall have consummated control 25% or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part more of the transactions contemplated by 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 any 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 Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount voting stock of the fee at surviving entity (or parent thereof) immediately following the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of paymenttransaction.
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise provided hereinset forth in subsection (b) below and Section 9.01, no such (ii) that termination shall will not relieve a breaching party from liability for any party hereto willful breach of any liability covenant, agreement, representation or damages resulting from any willful or intentional breach warranty of this Agreement giving rise to such termination and (iiiii) the provisions set forth in the second sentence any other provision of Section 9.1 shall survive this Agreement which expressly survives the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company FCB pursuant to Section 8.2(a8.01(e) or 8.2(b(f), (ii) this Agreement is terminated (A) by Parent pursuant SCB shall pay to Section 8.4(a)FCB a termination fee, or (B) by representing liquidated damages, of $2.5 million. In 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) shall have occurred, or (iii) this Agreement is terminated by the Company FCB or by SCB pursuant to Section 8.3(a8.01(b), then the Company non-terminating party shall promptlypay a termination fee, but representing liquidated damages, of $2.5 million to the terminating party. In the event this Agreement is terminated by SCB pursuant to Section 8.01(g), FCB shall pay to SCB a termination fee, representing liquidated damages, equal to $250,000 plus the actual out-of-pocket costs incurred by SCB in no connection with the Merger. In the event later than two days after the date of such terminationthis Agreement is terminated by FCB pursuant to Section 8.01(h), SCB shall pay Parent FCB a termination fee of $12,825,000 100. The payment of any termination fees pursuant to this Section 8.02(b) shall be the sole and exclusive remedy available to a party with respect to the breach of any covenant or agreement giving rise to such a payment, and the parties agree and stipulate that the amount of the termination fees are reasonable and full liquidated damages and reasonable compensation to the other party for their involvement in the proposed transactions contemplated by this Agreement to the date of such notice of termination and is not a penalty or forfeiture.
(the “c) Any Termination Fee”) Fee that becomes payable to a party pursuant to this Section 8.02 shall be paid by wire transfer of same day funds; provided, however, that immediately available funds to an account designated by such party either if this Agreement is terminated by a party and the Termination Fee to be paid pursuant to clause (iii) shall be paid as termination meets the conditions set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of 8.02 at or prior to such termination by the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal party.
(substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges d) SCB and FCB agree that the agreements contained in this Section 8.5(bparagraphs (b) and (c) above are an integral part of the transactions contemplated by this Agreement, that without such agreements FCB and that, without these agreements, Parent and Merger Sub SCB would not enter have entered into this Agreement; accordingly, if the Company and that such amounts do not constitute a penalty. If a party fails to promptly pay any amount the other party the amounts due pursuant to this Section 8.5(b)under paragraph (b) above within the time periods specified in paragraph (c) above, and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company party shall pay to Parent or Merger Sub its all costs and expenses (including attorneys’ fees) incurred by the other party in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the publicly announced prime rate of Citibank Bank of America, N.A. in effect on from the date such payment was amounts were required to be made through the date of paymentpaid.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in Section 8.5(b) and Section 8.5(c), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything herein to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or and intentional material breach of this Agreement and (ii) the provisions set forth in the second sentence of this Section 9.1 8.5 and Article X shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders Holders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification or rejected in writing by the Company at least (Ax) 10 with respect to any termination pursuant to Section 8.2(a) [Drop Dead], thirty (30) business days prior to termination of this Agreement, the Termination Date or (y) with respect to termination of this Agreement pursuant to Section 8.2(a)8.2(b) [No Stockholder Approval], or ten (B10) five business days prior to termination of this Agreement, with respect to termination the adoption of this Agreement pursuant to Section 8.2(b), by the holders of Shares constituting the Requisite Stockholder Approval) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b8.2(c), or (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), ) [No Stockholder Written Consent] or Section 8.4(c) [Change of Recommendation] or (B) by the Company pursuant to Section 8.2(b8.3(a) [Superior Proposal] 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) or (c) shall have occurred, then the Company shall pay to Parent a termination fee of $10,000,000 (the “Termination Fee”) (x) in the case of termination by Parent pursuant to Section 8.4(c) or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two ten (10) days after the date of such termination or (y) otherwise no later than twelve (12) months after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable paid to Parent pursuant to clause (i) of this Section 8.5(bparagraph (b) unless and until within 12 twelve (12) months of such termination (x) the Company shall have entered into an Alternate Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal, (y) there shall have been consummated an Acquisition Proposal (substituting in both instances “50%” for “2025%” in the definition of “Acquisition Proposal”); provided ) or (z) the Company shall have completed an initial public offering.
(c) In the event that for purposes of this Agreement(i) the Merger shall not have been consummated on or before the Termination Date, an (ii) a bona fide Acquisition Proposal has not been made to the Company or any Holders which has not been rejected in writing by the Company, (iii) the Requisite Stockholder Approval shall have been obtained, and (iv) Parent shall not be deemed have terminated this Agreement pursuant to Section 8.4(b) [Company Breach] or Section 8.4(c) [Change of Recommendation], and either (x) the Company has terminated this Agreement pursuant to Section 8.3(b) [Parent Breach] or (y) either Parent or the Company has terminated this Agreement pursuant to Section 8.2(a) [Drop Dead] at a time when the Company could have been “publicly withdrawn” by any Person ifterminated this Agreement pursuant to Section 8.3(b), within 12 months then Parent shall, no later than ten (10) days after the date of such termination, pay to the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. Termination Fee.
(d) The Company acknowledges parties acknowledge that the agreements contained in this Section 8.5(b) and Section 8.5(c) are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any amount the amounts due pursuant to this Section 8.5(b), as applicable, and, in order to obtain such payment, Parent or Merger Sub commences a suit which that results in a non-appealable judgment against the Company for the fee, to which reference is made in this Section 8.5(b)Termination Fee, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. published in effect The Wall Street Journal on the date such payment was required to be made through the date of payment.
(e) Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is so paid by the Company and accepted by Parent pursuant to Section 8.5(b), the Termination Fee, as applicable, 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 (Conmed 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither EVBS nor VCB shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that VCB shall pay EVBS the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 490,000 (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by wire transfer of same day funds; providedEVBS pursuant to Section 8.01(f) or 8.01(g), however, that VCB shall pay the entire Termination Fee to be paid EVBS on the second Business Day following the termination of this Agreement;
(ii) if this Agreement is terminated by (A) EVBS pursuant to Section 8.01(b)(i), (B) either EVBS or VCB pursuant to Section 8.01(c) and at the time of such termination no vote of the VCB shareholders contemplated by this Agreement at the VCB Meeting shall have occurred or (C) by either EVBS or VCB pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by announced or otherwise communicated or made known to the senior management of VCB or the VCB Board (or any Person ifshall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention 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 VCB contemplated by this Agreement at the VCB Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 12 twelve months after such termination VCB enters into an agreement with respect to an Acquisition Proposal, then VCB shall pay to EVBS the Termination Fee on the date of execution of such terminationagreement (regardless of whether such Acquisition Proposal is consummated before or after the termination of this Agreement), the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, and (2) if an Acquisition Proposal made is consummated otherwise than pursuant to an agreement with VCB within fifteen months after the termination of this Agreement, then VCB shall pay to EVBS the Termination Fee on the date such Acquisition Proposal is consummated; or
(iii) if this Agreement is terminated by VCB pursuant to Section 8.01(h), VCB shall pay the entire Termination Fee to EVBS prior to or on behalf concurrent with the termination of such Person or any of its Affiliates. The Company acknowledges this Agreement.
(c) VCB and EVBS agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement EVBS would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by VCB. If VCB fails to promptly pay any amount EVBS the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company VCB shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by EVBS in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided EVBS prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment. If this Agreement is terminated and a Termination Fee is payable by VCB to EVBS pursuant to this Section 8.02, the Termination Fee and any fees and expenses awarded pursuant to this Section 8.02(c) shall be EVBS’s sole and exclusive remedies.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Newco Merger pursuant to this Article VIIIVII, this Agreement shall become void and of no effect (other than as set forth in Section 8.01) with no liability or further obligation on the part of any party hereto (or of any of its Representatives representatives or Affiliatesaffiliates); provided, however, that (i) except as otherwise provided hereinin this Section 7.02; provided that, and notwithstanding anything in the foregoing to the contrary, (i) no such termination shall relieve any party hereto of any liability or damages to the other parties hereto resulting from any willful or intentional material breach of this Agreement Agreement, and (ii) the provisions set forth in the second sentence of Section 9.1 8.01 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating not relieve any party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofliability under such provisions.
(b) In the event that (i) an a bona fide Acquisition Proposal shall have been made to the Company SL Bancorp or any of its stockholders 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 the Company SL Bancorp or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (Ax) 10 business 30 calendar days prior to termination of this Agreementto, with respect to any termination of this Agreement pursuant to Section 8.2(a7.01(c) or Section 7.01(d), the date of termination, or (By) five business days at least 10 Business Days prior to termination of this Agreementto, with respect to a termination of this Agreement pursuant to Section 8.2(b7.01(h), the date of SL Bancorp Shareholders Meeting); and thereafter this Agreement is terminated by either Parent Purchaser Parties or the Company SL Bancorp pursuant to Section 8.2(a7.01(d) or 8.2(bSection 7.01(h), or (ii) this Agreement is terminated (Ax) by Parent Seller Parties pursuant to Section 8.4(a7.01(g), (y) by Purchaser Parties pursuant to Section 7.01(c)(i) or (ii) and the Required Shareholder Vote is not obtained, or (Bz) by the Company Purchaser Parties pursuant to Section 8.2(b7.01(c)(iii) 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(athrough (vi) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a)inclusive, then the Company SL Bancorp shall promptly, but and in any event no event later than two days Business Days after the date of such termination, pay Parent Purchaser Parties a termination fee of $12,825,000 175,000.00 (the “Termination Fee”) ), payable by wire transfer of same same-day funds; provided. SL Bancorp’s payment, however, that the Termination Fee to be paid pursuant to clause (iii) together with reimbursement of its expenses under Section 8.05 shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) the sole and exclusive remedy of this Section 8.5(b) unless Purchaser Parties for damages against SL Bancorp and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement and their respective representatives with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf occurrence of any event giving rise to such Person or any payment.
(c) Each of its Affiliates. The Company Purchaser Parties and SL Bancorp acknowledges that the agreements contained in this Section 8.5(b7.02(b) are an integral part of the transactions contemplated by this Agreement, Agreement and that, that without these agreements, Parent Purchaser Parties and Merger Sub SL Bancorp would not enter into this Agreement; accordingly, if the Company (i) SL Bancorp fails to promptly pay any amount due the Termination Fee pursuant to this Section 8.5(b7.02(b), and, in order to obtain such paymentpayment of the Termination Fee, Parent or Merger Sub commences any of Purchaser Parties commence a suit which that results in a judgment against the Company SL Bancorp for the feeTermination Fee or any portion thereof, to which reference is made in this Section 8.5(b), the Company SL Bancorp shall pay to Parent or Merger Sub its Purchaser Parties their costs and expenses (including attorneys’ feesfees and expenses) in connection with such suit, together with interest on the amount of the such fee at the publicly announced prime rate of Citibank N.A. interest published in effect The Wall Street Journal on the date such payment was required to be made from the date such payment was required to be made through the date of payment.. 3266.019/439907.1
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in the second sentence contrary, neither FCBI nor TCB shall be relieved or released from any liabilities or damages arising out of Section 9.1 shall survive the termination its fraud or willful breach of any provision of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In The parties hereto agree that TCB shall pay FCBI the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee sum of $12,825,000 450,000 (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by wire transfer of same day funds; providedFCBI pursuant to Section 8.01(f) or 8.01(g), however, that TCB shall pay the entire Termination Fee to be paid FCBI on the second Business Day following the termination of this Agreement; or
(ii) if this Agreement is terminated by (A) FCBI pursuant to Section 8.01(b), (B) either FCBI or TCB pursuant to Section 8.01(c) and at the time of such termination no vote of the TCB stockholders contemplated by this Agreement at the TCB Meeting shall have occurred or (C) by either FCBI or TCB pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (iiiA), (B) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause or (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”C); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been publicly announced or otherwise communicated or made known to the senior management of TCB or the TCB Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, or reiterated a previously expressed plan or intention to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of TCB contemplated by this Agreement at the TCB Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 12 months after such termination TCB enters into an agreement with respect to a Control Transaction, then TCB shall pay to FCBI the Termination Fee on the date of execution of such agreement and (2) if a Control Transaction is consummated otherwise than pursuant to an agreement with TCB within 15 months after such termination, then TCB shall pay to FCBI the Termination Fee on the date of such consummation of such Control Transaction. As used in this Section 8.02(b), a “publicly withdrawnControl Transaction” means (i) the acquisition by any Person ifwhether by purchase, within 12 months of such terminationmerger, the Company consolidation, sale, transfer or otherwise, in one transaction or any series of its Subsidiaries transactions, of a majority of the voting power of the outstanding securities of TCB or TCB or a majority of the assets or TCB or TCB, (ii) any issuance of securities resulting in the ownership by any Person of more than 50% of the voting power of TCB or by any Person other than TCB of more than 50% of the voting power of TCB or (iii) any merger, consolidation or other business combination transaction involving TCB as a result of which the stockholders of TCB cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b)(ii) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made account designated by or on behalf of such Person or any of its Affiliates. The Company acknowledges FCBI.
(c) TCB and FCBI agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement FCBI would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by TCB. If TCB fails to promptly pay any amount FCBI the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company TCB shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by FCBI in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided FCBI prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Sources: Merger Agreement (First Community Bancshares Inc /Nv/)
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, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any member of its Representatives the Parent Group or Affiliates)the Company Group) except as provided in this Section 7.5; provided, however, that (i) except as otherwise provided hereinsubject to Section 7.5(b) and Section 7.5(c), no such termination nothing herein shall relieve any party hereto of from liability for any liability or damages resulting from any willful or intentional breach Willful Breach of this Agreement or the Commitment Letters prior to such termination, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity, and (ii) Section 5.6(b), Section 5.9, the provisions set forth in the second last sentence of Section 9.1 5.13(a), this Section 7.5 and Article VIII shall survive the termination of this Agreement. No termination of The party desiring to terminate this Agreement pursuant to Section 7.2, 7.3 or 7.4 shall be effective unless and until give written notice of such termination shall have been given by termination, including a description in reasonable detail of the terminating party pursuant reasons for such termination, to the other parties in accordance with Section 9.68.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 hereof pursuant to which such termination has been is effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made (A) this Agreement is validly terminated pursuant to the Company Section 7.2(b) or any of its stockholders or Section 7.4(b), (B) any Person shall have publicly announced an intention (whether or not conditional) to make an made a bona fide Acquisition Proposal with respect after the date of this Agreement and prior to the Company Stockholders Meeting (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least four (A4) 10 business days Business Days prior to termination of this Agreementthe Stockholders Meeting or any adjournment or postponement thereof), with respect or prior to the termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the if there has been no Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(aand (C) shall have occurred, or within twelve (iii12) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have (1) entered into an Alternate Acquisition Agreement agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal and such Acquisition Proposal is ultimately consummated or (substituting 2) consummated an Acquisition Proposal, then the Company shall, no later than three (3) Business Days after the date such Acquisition Proposal is consummated, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of this Section 7.5(b)(i), the references to “5020%” for and “2080%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have been be references to “publicly withdrawn” 50%”; or
(ii) this Agreement is validly terminated by any Person ifthe Company pursuant to Section 7.3(a) or by Parent pursuant to Section 7.4(a), within 12 months of the Company shall, prior to or substantially concurrently with such termination, in the case of a termination by the Company, or within three (3) Business Days thereafter, in the case of a termination by Parent, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended more accounts designated by Parent. Notwithstanding anything to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained contrary in this Section 8.5(b) are an integral part of the transactions contemplated by 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 any amount Termination Fee shall become due and payable in accordance with this Section 7.5, from and after such termination and payment of the Company Termination Fee in full pursuant to and in accordance with 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 Company for the fee, to which reference is made in this Section 8.5(b7.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) have no further liability of any kind for any reason in connection with such suit, together with interest on this Agreement or the amount of termination contemplated hereby other than as set forth in this Section 7.5. In no event shall the fee at the prime rate of Citibank N.A. in effect on the date such payment was Company be required to be made through pay the date of paymentCompany Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Xo 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth in contrary, neither PPBI nor HEOP shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The parties hereto agree that HEOP shall pay PPBI the sum of $15.0 million (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if this Agreement is terminated by PPBI pursuant to Section 8.01(f) or (h), or by HEOP pursuant to Section 8.01(i), HEOP shall pay the entire Termination Fee to PPBI on the second sentence of Section 9.1 shall survive Business Day following the termination of this Agreement. No termination of ; or
(ii) if this Agreement shall be effective unless is terminated by (A) PPBI pursuant to Section 8.01(b), (B) by either PPBI or HEOP pursuant to Section 8.01(c) and until notice at the time of such termination no vote of the HEOP shareholders contemplated by this Agreement at the HEOP Meeting shall have been given occurred, or (C) by the terminating party PPBI pursuant to Section 9.68.01(e), specifying and in the provision or provisions case of Section 8.1, 8.2, 8.3 or 8.4 any termination pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement clause (A), (B) or receive any notice thereof.
(b) In the event that (i) C), an Acquisition Proposal shall have been publicly announced and communicated or made known to the Company executive officers of HEOP or any of its stockholders the HEOP Board (or any Person shall have publicly announced and communicated or made known an intention (intention, whether or not conditional) , to make an Acquisition Proposal Proposal, or reiterated a previously expressed plan or intention 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 HEOP contemplated by this Agreement at the HEOP Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 9 months after such termination HEOP enters into an agreement with respect to a Control Transaction, which was the Company and subject of such Acquisition Proposal or publicly announced intention Proposal, then HEOP shall not have been publicly withdrawn without qualification pay to PPBI an amount equal to $11.25 million on the date of execution of such agreement and upon consummation of such Control Transaction at least any time thereafter, HEOP shall pay to PPBI the remainder of the Termination Fee on the date of such consummation and (A2) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement if a Control Transaction is consummated otherwise than pursuant to an agreement with HEOP within 12 months after such termination, then HEOP shall pay to PPBI the Termination Fee (less any amount previously paid by HEOP pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.2(a8.02(b), a “Control Transaction” means (i) the acquisition by any Person whether by purchase, merger, consolidation, sale, transfer or (B) five business days prior to termination otherwise, in one transaction or any series of this Agreementtransactions, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent a majority of the voting power of the outstanding securities of HEOP or Heritage Oaks Bank or a majority of the Company pursuant to Section 8.2(a) assets of HEOP or 8.2(b)Heritage Oaks Bank, (ii) this Agreement is terminated (A) any issuance of securities resulting in the ownership by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date any Person of more than 50% of the Stockholders Meeting, voting power of HEOP or by any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, Person other than HEOP or its Subsidiaries of more than 50% of the voting power of Heritage Oaks Bank or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a)any merger, 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, consolidation or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company other business combination transaction involving HEOP or any of its Subsidiaries as a result of which the shareholders of HEOP cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall have entered into be paid by wire transfer of immediately available funds to an Alternative Acquisition Agreement with respect toaccount designated by PPBI. Under no circumstances shall HEOP be obligated to pay the entire Termination Fee on more than one occasion, or and the parties hereby acknowledge and agree that in the event the entire Termination Fee becomes payable and is paid by HEOP pursuant to this Section 8.02, the Termination Fee shall have consummated or shall have approved, adopted or recommended to the Companybe PPBI’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges sole and exclusive remedy under this Agreement.
(c) HEOP and PPBI agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement PPBI would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by HEOP. If HEOP fails to promptly pay any amount PPBI the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company HEOP shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by PPBI in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided PPBI prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Heritage Oaks Bancorp)
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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, hereunder except that (i) except as otherwise provided hereinthis Section 8.02, no such Section 6.06(c) and Article IX shall survive any termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) notwithstanding anything to the provisions set forth contrary, neither PPBI nor SDTB shall be relieved or released from any liabilities or damages arising out of its fraud or willful breach of any provision of this Agreement.
(b) The parties hereto agree that SDTB shall pay PPBI the sum of $1.75 million (the "Termination Fee") if this Agreement is terminated as follows, it being understood that in no event shall SDTB be required to pay the Termination Fee on more than one occasion:
(i) if this Agreement is terminated by PPBI pursuant to Section 8.01(f) or (g), SDTB shall pay the entire Termination Fee to PPBI on the second sentence of Section 9.1 shall survive Business Day following the termination of this Agreement. No termination of ; or
(ii) if this Agreement shall be effective unless is terminated by (A) PPBI pursuant to Section 8.01(b), (B) by either PPBI or SDTB pursuant to Section 8.01(c) and until notice at the time of such termination no vote of the SDTB shareholders contemplated by this Agreement at the SDTB Meeting shall have been given occurred, or (C) by the terminating party either PPBI or SDTB pursuant to Section 9.68.01(e), specifying and in the provision or provisions case of Section 8.1, 8.2, 8.3 or 8.4 any termination pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement clause (A), (B) or receive any notice thereof.
(b) In the event that (i) C), an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the Company senior management of SDTB or any of its stockholders the SDTB Board (or any Person shall have publicly announced announced, communicated or made known an intention (intention, whether or not conditional) , to make an Acquisition Proposal Proposal, or reiterated a previously expressed plan or intention 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 SDTB contemplated by this Agreement at the SDTB Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), then (1) if within 12 months after such termination SDTB enters into an agreement with respect to a Control Transaction, then SDTB shall pay to PPBI an amount equal to $1.0 million on the Company date of execution of such agreement and upon consummation of any such Acquisition Proposal or publicly announced intention Control Transaction at any time thereafter, SDTB shall not have been publicly withdrawn without qualification at least pay to PPBI the remainder of the Termination Fee on the date of such consummation and (A2) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement if a Control Transaction is consummated otherwise than pursuant to an agreement with SDTB within 15 months after such termination, then SDTB shall pay to PPBI the Termination Fee (less any amount previously paid by SDTB pursuant to clause (1) above) on the date of such consummation of such Control Transaction. As used in this Section 8.2(a8.02(b), a "Control Transaction" means (i) the acquisition by any Person whether by purchase, merger, consolidation, sale, transfer or (B) five business days prior to termination otherwise, in one transaction or any series of this Agreementtransactions, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent a majority of the voting power of the outstanding securities of SDTB or a majority of the Company pursuant to Section 8.2(a) or 8.2(b)assets of SDTB, (ii) this Agreement is terminated (A) any issuance of securities resulting in the ownership by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date any Person of more than 50% of the Stockholders Meeting, voting power of SDTB or by any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, Person other than SDTB of more than 50% of the voting power of SDTB or (iii) this Agreement is terminated by any merger, consolidation or other business combination transaction involving SDTB as a result of which the Company shareholders of SDTB cease to own, in the aggregate, at least 50% of the total voting power of the entity surviving or resulting from such transaction. Any amount that becomes payable pursuant to this Section 8.3(a), then the Company 8.02(b) shall promptly, but in no event later than two days after the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) be paid by wire transfer of same day funds; providedimmediately available funds to an account designated by PPBI. To the extent fully paid in accordance with this Section 8.02, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no payment of a Termination Fee shall be payable the sole and exclusive remedy of PPBI, Pacific Premier and each of their affiliates and representatives for damages against SDTB with respect to Parent pursuant to clause (i) or arising out of this Section 8.5(bAgreement or the Transaction contemplated thereby.
(c) unless SDTB and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges PPBI agree that the agreements agreement contained in this Section 8.5(bparagraph (b) are above is an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement PPBI would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty or liquidated damages in the Company event of a breach of this Agreement by SDTB. If SDTB fails to promptly pay any amount PPBI the amounts due pursuant to this Section 8.5(bunder paragraph (b) above within the time periods specified in such paragraph (b), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company SDTB shall pay to Parent or Merger Sub its the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by PPBI in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, provided PPBI prevails on the merits, together with interest on the amount of the fee any such unpaid amounts at the prime lending rate of Citibank N.A. prevailing during such period as published in effect The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made through paid until the date of actual payment.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pacific Premier Bancorp 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, VI this Agreement shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers or other Representatives or Affiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 7.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) 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) shall have occurred, or (iii) If this Agreement is terminated by the Company pursuant to Section 8.3(a6.3(a) and a fee has not been paid in respect of Section 6.5(c) or (d), then the Company shall promptlyshall, but in no event later than two days after upon the date of such termination, pay Parent a termination cash fee of equal to (x) $12,825,000 15,000,000 (the “Termination Fee”) and (y) as promptly as possible (but in any event within three (3) Business Days) following receipt of an invoice therefor, all of Parent’s and Merger Sub’s documented out-of-pocket fees and expenses (including legal fees and expenses) actually incurred by Parent and Merger Sub and their Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (such amount, the “Acquiror Expenses”), which amount shall not be greater than $2,000,000. All payments shall be made by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause .
(i) of this Section 8.5(bIf (A) unless and until within 12 months of such termination after the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended date hereof (x) a Person has publicly announced that subject to the Merger being disapproved by the Company’s stockholders or otherwise rejected, it will make a bona fide Acquisition Proposal with respect to the Company or (y) a Person has made a bona fide Acquisition Proposal (whether or not opposedpublicly announced) with respect to the Company, and thereafter this Agreement is terminated by Parent pursuant to Section 6.4(a) and a fee has not been paid in respect of Section 6.5(b) or (d) and (B) concurrently with such termination or within twelve (12) months after such termination the Company shall enter into a definitive agreement with regard to an Acquisition Proposal or an Acquisition Proposal shall be consummated, then the Company shall upon consummating such Acquisition Proposal, pay, without duplication, the Termination Fee and the Acquiror Expenses.
(substituting ii) If (A) after the date hereof (x) a Person has publicly announced that subject to the Merger being disapproved by the Company’s stockholders or otherwise rejected, it will make a bona fide Acquisition Proposal with respect to the Company or (y) a Person has made a bona fide Acquisition Proposal with respect to the Company, and thereafter this Agreement is terminated by Parent pursuant to Section 6.2(b) and a fee has not been paid in respect of Section 6.5(b) or (d) and (B) concurrently with such termination or within twelve (12) months after such termination the Company shall enter into a definitive agreement with regard to an Acquisition Proposal or an Acquisition Proposal shall be consummated, then the Company shall upon consummating such Acquisition Proposal, pay, without duplication, the Termination Fee and the Acquiror Expenses.
(iii) Solely for the purposes of Section 6.5(c)(i) and (ii) and Section 6.5(d), reference to the figure “5015%” for “20%” in within the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have be replaced by the words “a majority”. All payments to be made pursuant to this Section 6.5(c) shall be made by wire transfer of same day funds.
(d) If after the date hereof this Agreement is terminated by Parent pursuant to Section 6.4(a) and no Person has made a bona fide Acquisition Proposal with respect to the Company (whether or not publicly announced) and a fee has not been “publicly withdrawn” paid in respect of Section 6.5(b) or (c), then the Company shall promptly pay to Parent, without duplication, the Termination Fee and the Acquiror Expenses. All payments to be made pursuant to this Section 6.5(d) shall be made by any Person ifwire transfer of same day funds.
(e) If this Agreement is terminated by the Company pursuant to Section 6.3(c), within 12 months then Parent and Merger Sub shall, jointly and severally, upon the date of such termination, pay the Company or a cash fee equal to (x) $15,000,000, (y) as promptly as possible (but in any event within three (3) Business Days) following receipt of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect toinvoice therefor, or shall have consummated or shall have approved, adopted or recommended to all of the Company’s stockholders documented out-of-pocket fees and expenses (including legal fees and expenses) actually incurred by the Company and its Affiliates on or otherwise prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement, which amount shall not opposed, an Acquisition Proposal be greater than $2,000,000 and (z) any outstanding amounts required to be reimbursed to the Company by Parent or Merger Sub pursuant to the terms of this Agreement. All payments shall be made by or on behalf wire transfer of such Person or any of its Affiliates. same day funds.
(f) The Company acknowledges parties hereto acknowledge that the agreements contained in this Section 8.5(bSections 6.5(b), (c), (d) and (e) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the parties hereto would not enter into this Agreement; accordingly, if and that any amounts payable pursuant to this Section 6.5 constitute liquidated damages. If (i) the Company fails to pay promptly pay any amount due pursuant to this Section 8.5(b6.5(b), and(c) or (d), in order and to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the such fee, charges or expenses payable by the Company, or (ii) Parent fails to which reference is made in this pay promptly any amount due pursuant to Section 8.5(b6.5(e), and to obtain such payment, the Company commences a suit which results in a judgment against Parent for such fee, charges or expenses payable by Parent, the party against whom judgment was entered shall pay to Parent or Merger Sub its the prevailing party such party’s costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through made. If the date Company pays amounts due under Section 6.5(b), (c) or (d), such payment shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages with respect to a termination of paymentthis Agreement, and if Parent pays amounts due under Section 6.5(e), such payment shall be the Company’s sole and exclusive remedy for monetary damages with respect to a termination of 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 VIIIIX, this Agreement shall become void and of no effect (except for Section 7.9, this Section 9.5 and Article X) 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 damages to the other party hereto resulting from any willful or intentional material breach of this Agreement (but subject in all cases to the other provisions of this Section 9.5) and (ii) the provisions set forth in the second sentence of Section 9.1 10.1 shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that this Agreement is terminated (i) an Acquisition Proposal shall have been made to (x) by the Company or any of its stockholders Parent pursuant to Section 9.2(i) or Section 9.2(ii) or (y) Parent pursuant to Section 9.4(b), and prior to such termination, any Person shall have publicly announced an intention (whether or not conditionalconditional or withdrawn) to make an Acquisition Proposal with respect or an Acquisition Proposal has been communicated to the Company or become publicly known and within one year of such termination, the Company enters into a definitive agreement with respect to, consummates, or the Board of Directors of the Company recommends, a transaction contemplated by any Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (Bx) by the Company pursuant to Section 8.2(b9.3(a) andor (y) by Parent pursuant to Section 9.4(a), on then the Company shall pay to Parent a termination fee equal to Eight Million Dollars ($8,000,000) (the “Termination Fee”). For purposes of this Section 9.5(b), the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”. Any payment required to be made pursuant to clause (i) of this Section 9.5(b) shall be made to Parent at or prior to the date earlier of the Stockholders Meetingexecution of a definitive agreement with respect to, the consummation of, or the Board of Directors of the Company recommending, any event giving rise transaction contemplated by an Acquisition Proposal and any payment required to Parent’s right be made pursuant to terminate under clause (ii) of this Section 8.4(a9.5(b) shall have occurred, be made to Parent prior to or simultaneously with (iiiand as a condition to the effectiveness of) termination of this Agreement by the Company. All such payments shall be made by wire transfer of immediately available funds to an account to be designated by Parent.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 8.3(a9.3(c), then (i) if the Company became entitled to terminate this Agreement pursuant to Section 9.3(c) on or before May 7, 2009 (the “Milestone Date”), then Parent shall promptly, but in no event later than two days after the date of such termination, (A) pay Parent a termination fee of equal to $12,825,000 10,000,000 (the “Parent Termination Fee”) and (B) sell and cause its Affiliates to sell to the Company or any third party designated by wire transfer the Board of same day funds; providedDirectors all Shares beneficially owned by Parent and its Affiliates (the “Parent Shares”) in consideration for the payment of the par value of the Parent Shares, howeveror (ii) if the Company became entitled to terminate this Agreement pursuant to Section 9.3(c) after the Milestone Date, then Parent shall pay the Parent Termination Fee. The parties agree that in no event shall Parent be required to pay the Parent Termination Fee to be paid on more than one (1) occasion. If the Parent Termination Fee becomes payable by Parent and, if applicable, the sale of the Parent Shares is required pursuant to clause (iii) shall be paid as set forth in this Section 8.3; provided9.5(c), further, that no the Parent Termination Fee shall be payable to paid and the sale of Parent Shares shall take place no later than three (3) business days after the termination of this Agreement pursuant to clause Section 9.3(c).
(id) of this Section 8.5(b) unless and until within 12 months of such termination In the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided event that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries Parent shall have entered into an Alternative Acquisition Agreement with respect tofail to pay the Termination Fee or the Parent Termination Fee, or as applicable, when due, as the case may be, such payment amount shall have consummated or shall have approvedaccrue interest for the period commencing on the date such payment amount became past due, adopted or recommended at a rate equal to the Companyrate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s stockholders or otherwise not opposedPrime Lending Rate. In addition, an Acquisition Proposal made by or on behalf if either party shall fail to pay such payment amount when due, such party shall also pay to such other party all of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such suit, together with interest on the amount payment amount. Each of the fee at Company and Parent acknowledges that the prime rate payment amounts and the other provisions of Citibank N.A. this Section 9.5 are an integral part of the transactions contemplated hereby and that, without these agreements, neither the Company nor Parent would enter into this Agreement.
(e) The Company’s right to receive payment of the Parent Termination Fee from Parent or the Investors pursuant to the Limited Guarantees in effect on respect thereof, to purchase the date such payment was required Parent Shares and enforce the benefits of the Stand-Still Undertaking shall be the sole and exclusive remedy of the Company and its Affiliates against Parent, Merger Sub, the Investors or any of their respective former, current or future general or limited partners, shareholders, managers, members, directors, officers, employees, representatives or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise (“Company Damages”) (except with respect to any breach of or default under the Confidentiality Agreement, the provisions of Sections 7.17(a) or 7.17(d) or the SafeNet Undertaking related thereto) and upon payment of such amount and the making available for sale of the Parent Shares to the Company none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (except that Parent and the Investors under the Limited Guarantees shall also be obligated with respect to Section 9.5(d) and Parent shall also be obligated with respect to any breach of or default under the Confidentiality Agreement, the provisions of Sections 7.17(a) or 7.17(d) or the SafeNet Undertaking related thereto).
(f) Notwithstanding anything herein to the contrary, (i) the maximum aggregate liability of Parent and Merger Sub for all Company Damages (inclusive of the Parent Termination Fee and the Parent Shares), shall be limited to an amount equal to the Parent Termination Fee, plus any amounts that become due under Section 9.5(d), and Parent’s making the Parent Shares available for purchase by the Company pursuant to Section 9.5(c) (the “Parent Liability Limitation”), and in no event shall the Company or any of its Affiliates seek (x) any Company Damages in excess of such amount, (y) any Company Damages in any amount if the Parent Termination Fee has been paid and the Parent Shares have been made available for purchase by the Company pursuant to Section 9.5(c) or (z) any other recovery, judgment, or damages of any kind, including equitable relief or consequential, indirect, or punitive damages, against Parent, Merger Sub or any other Parent Related Parties in connection with this Agreement or the Transactions (except with respect to any breach of or default under the Confidentiality Agreement, the provisions of Sections 7.17(a) or 7.17(d) or the SafeNet Undertaking related thereto) and (ii) the Company acknowledges and agrees that it has no right of recovery against, and no personal liability shall attach to, in each case with respect to Company Damages, any of the Parent Related Parties, through the date Parent or otherwise, whether by or through attempted piercing of paymentthe corporate veil, by or through a claim by or on behalf of Parent against any Parent Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise, except for its rights to recover the Parent Termination Fee or Company Damages subject to the Parent Liability Limitation or purchase the Parent Shares, from Parent or the Investors under and to the extent provided in the Limited Guarantees (but not any other Parent Related Party (including any general partner or managing member)), in each case, subject to the Parent Liability Limitation and the other limitations described therein and herein and except with respect to any breach of or default under the Confidentiality Agreement, the provisions of Sections 7.17(a) or 7.17(d) or the SafeNet Undertaking related thereto). Subject to the limitations contained herein and in the Limited Guarantees, recourse against Parent hereunder and the Investors under the Limited Guarantees shall be the sole and exclusive remedy of the Company and its Affiliates against any Parent Related Party in respect of any liabilities or obligations arising under, or in connection with, this Agreement except with respect to any breach of or default under the Confidentiality Agreement, the provisions of Sections 7.17(a) or 7.17(d) or the SafeNet Undertaking related thereto). The limitations of liability set forth in Sections 9.5(e) and (f) shall be void if Parent or any of Parent Related Parties or the Investors claims or a court of competent jurisdiction determines that the provisions of Section 9.5(c) are unenforceable or excessive.
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 shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its 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 the Company of any liability to pay the Termination Fee pursuant to this Section 8.5, (ii) no such termination shall relieve the Company, on the one hand, or damages resulting from the Buyer Parties, on the other hand, of liability for any willful or intentional breach of this Agreement prior to termination; and (iiiii) the agreements of the parties contained in Section 6.10, the indemnification and reimbursement provisions set forth in the second sentence of Section 9.1 6.13, this Section 8.5, Article IX and the Confidentiality Agreement shall survive the termination of this Agreement (in the case of the Confidentiality Agreement, subject to the terms thereof). For purposes of this Agreement, “willful breach” shall mean any act or failure to act by any person with the actual knowledge and intent that the taking of such act or the failure to take such act would cause a breach of this Agreement. No termination For the avoidance of doubt, the failure of Parent or Merger Sub to cause the Merger and the Effective Time to occur and to effect the Closing as and when required under this Agreement shall be effective unless and until notice a willful breach of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereofAgreement.
(b) In Without limiting Section 8.5(a), in the event that that: (i) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditionalx) to make an Acquisition Proposal with respect to the Company and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) (before obtaining the Company Requisite Vote), Section 8.2(b) or 8.2(bSection 8.4(b) (as a result of any willful breach), (iiy) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), or (B) by the Company pursuant to Section 8.2(b) and, on or any Person shall have made a bona fide Acquisition Proposal prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 and (the “Termination Fee”z) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause within twelve (iii12) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of after such termination the Company shall have entered into an Alternate Acquisition Agreement agreement with respect to, to any Acquisition Proposal or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an any Acquisition Proposal (substituting “50%” provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal ” shall not be deemed to have been be references to “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 8.5(b50%”), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 1 contract
Sources: Merger Agreement (Sciquest 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 become void and of no effect with no have any liability on the part of or further obligation to any other party hereto (or of any of its Representatives or Affiliates); provided, however, that hereunder except (i) except as otherwise provided hereinset forth in subsections (b) and (c) below and Section 9.01, no such (ii) that termination shall will not relieve a breaching party from liability for actual damages for any party hereto willful breach of any liability covenant, agreement, representation or damages resulting from any willful or intentional breach warranty of this Agreement giving rise to such termination and (iiiii) the provisions set forth in the second sentence any other provision of Section 9.1 shall survive this Agreement which expressly survives the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that (i) an Acquisition Proposal shall have been made to the Company 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 and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), and thereafter If this Agreement is terminated by either Parent or the Company RLBI pursuant to Section 8.2(a) or 8.2(b), (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a8.01(f), or (B) by the Company pursuant to Section 8.2(b) and8.01(e), on or prior upon such termination RLBI shall pay to the date Company a termination fee, representing liquidated damages, of $1,000,000 (the Stockholders Meeting"Termination Fee"). Notwithstanding any Termination Fee paid to the Company pursuant to Section 8.01(f), such Termination Fee shall not be the sole remedy available to the Company in the event that RLBI has breached Section 6.06 or any event giving rise other provision of this Agreement and the Company shall be entitled to Parent’s right pursue all remedies to which it is entitled at law or equity.
(c) If this Agreement is terminated by RLBI pursuant to Section 8.01(b) where the Company would not be entitled to terminate under Section 8.4(asubdivisions (i) shall have occurred, or (iiiii) of that subsection, the Company shall pay to RLBI a Termination Fee of $1,000,000, representing liquidated damages. Notwithstanding any Termination Fee paid to RLBI, such Termination Fee shall not be the sole remedy available to RLBI in the event that the Company has breached any provision of this Agreement, and RLBI shall be entitled to pursue all remedies to which it is entitled at law or equity.
(d) Any Termination Fee that becomes payable to the Company or RLBI pursuant to this Section 8.02 shall be paid by wire transfer of immediately available funds to an account designated by the Company or RLBI, as the case may be, either if this Agreement is terminated by the Company pursuant to Section 8.3(a), then or RLBI and the Company shall promptly, but in no event later than two days after termination meets the date of such termination, pay Parent a termination fee of $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as conditions set forth in Section 8.3; provided, further, that no Termination Fee shall be payable 8.02 at or prior to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to RLBI.
(e) RLBI and the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges agree that the agreements contained in this Section 8.5(bparagraphs (b) and (c) above are an integral part of the transactions contemplated by this Agreement, that without such agreements RLBI and that, without these agreements, Parent and Merger Sub the Company would not enter have entered into this Agreement; accordingly, if and that such amounts do not constitute a penalty. If the Company party owing the Termination Fee fails to promptly pay any amount the other party the amounts due pursuant to this Section 8.5(b), and, under paragraph (b) above within the time periods specified in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b)paragraph (c) above, the Company party owing the Termination Fee shall pay to Parent or Merger Sub its all reasonable attorneys' fees, costs and expenses (including attorneys’ fees) incurred by the other party in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the fee any such unpaid amounts at the prime rate publicly announced Prime Rate of Citibank Bank One N.A. in effect on from the date such payment was amounts were required to be made through the date of paymentpaid.
Appears in 1 contract
Sources: Merger Agreement (Northern States Financial 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 VIII, this Agreement shall become void and of no effect with no liability to any person on the part of any party hereto (or of any of its Representatives or Affiliatesaffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided hereinherein 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 or for damages to the other party hereto resulting from any willful or knowing and intentional material breach of this Agreement and (ii) the provisions set forth in this Section 8.5, Section 8.6, Section 6.15(b) (with respect to Parent’s reimbursement and indemnification obligations) and Section 9.1, the second sentence of Section 9.1 Confidentiality Agreements and the Guarantees (to the extent set forth therein) shall survive the termination of this Agreement. No termination of this Agreement shall be effective unless and until notice of such termination shall have been given by the terminating party pursuant to Section 9.6, specifying the provision or provisions of Section 8.1, 8.2, 8.3 or 8.4 pursuant to which termination has been effected. Merger Sub shall not be entitled to terminate this Agreement or receive any notice thereof.
(b) In the event that that:
(i) (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 8.2(a) or Section 8.2(b) or Section 8.4(c), (y) any person shall have made and publicly disclosed an Acquisition Proposal shall have been made after the date of this Agreement but prior to the Company 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 such termination, and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) 10 business days prior to such termination of this Agreementor, with respect to a termination of this Agreement pursuant to Section 8.2(a), or (B) five business days prior to termination of this Agreement, with respect to termination of this Agreement pursuant to Section 8.2(b), at least 10 Business Days prior to the Stockholders Meeting and thereafter this Agreement is terminated by either Parent (z) prior to or within nine (9) months of such termination the Company pursuant shall have consummated any Acquisition Proposal (in each case whether or not such Acquisition Proposal is the same Acquisition Proposal referred to Section 8.2(ain clause (y)) or 8.2(b(provided that for purposes of this clause (z) the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”), ;
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a) or 8.4(b), or (B) 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) shall have occurred, or ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), 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 $12,825,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this Section 8.5(b) unless and until within 12 months of such termination the Company shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal (substituting “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any of its Affiliates. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this 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 or Merger Sub commences a suit which results in a judgment against the Company for the fee, to which reference is made in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment.;
Appears in 1 contract