Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement. (b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000. (c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses. (d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 3 contracts
Sources: Proxy Statement (Instron Corp), Proxy Statement (Instron Corp), Proxy Statement (Instron Corp)
Effect of Termination. (a) Subject Entergy and ITC agree that (i) if this Agreement is terminated by (A) Entergy pursuant to Sections 9.2(bSection 7.01(i) or (B) ITC pursuant to Section 7.01(h) or (ii) (A) if this Agreement is terminated by Entergy pursuant to Section 7.01(g), or by ITC or Entergy pursuant to Section 7.01(d), (B) prior to any such termination, any Person (other than Entergy or its Affiliates) shall have made an ITC Takeover Proposal which shall have been publicly announced or disclosed and not publicly withdrawn or abandoned by such Person at least five (5) Business Days prior to the ITC Shareholder Meeting, and (dC) hereofwithin twelve (12) months after such termination of this Agreement, ITC shall have entered into an agreement to consummate, or shall have consummated, an ITC Takeover Transaction, then ITC shall pay to Entergy the ITC Termination Fee as liquidated damages. The ITC Termination Fee shall be paid to Entergy by ITC in the event of the immediately available funds (x) upon termination of this Agreement in the case of a termination pursuant to clause (i)(B) above, (y) within five (5) Business Days after termination in the case of a termination pursuant to clause (i)(A) above and (z) upon the execution of or entrance into a definitive agreement with respect to an ITC Takeover Transaction in the case of a termination pursuant to clause (ii) above.
(b) Solely for purposes of this Section 9.1 hereof7.02, “ITC Takeover Transaction” shall have the meaning ascribed thereto in Section 5.07, except that all references to “fifteen percent (15%) or more” shall be changed to “more than fifty percent (50%).” Each of the Parties acknowledges and agrees that the covenants and obligations contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these covenants and obligations, the Parties would not have entered into this Agreement shall forthwith become null and void that the ITC Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Entergy and have no effectTransCo in the circumstances in which such ITC Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement, without any liability the Separation Agreement and the Ancillary Agreements and in reliance on this Agreement and on the part expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. Upon payment of the ITC Termination Fee in accordance with this Section 7.02, none of ITC, Merger Sub and any party hereto of their respective former, current or its affiliatesfuture Affiliates or Representatives shall have any further liability to Entergy, trustees, directors, officers TransCo or stockholders and all rights and obligations of any party hereto shall cease except for their respective shareholders with respect to this Agreement or the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10Transactions; provided, however, that Entergy shall have the right to elect in writing to ▇▇▇ for damages arising out of ITC’s intentional breach of this Agreement in lieu of (and prior to) payment of the ITC Termination Fee in circumstances in which the ITC Termination Fee would otherwise be payable, and upon such election in writing, Entergy shall no longer be entitled to payment of the ITC Termination Fee; provided, further, that nothing contained in this Section 9.2(a) herein shall relieve any party release ITC from liability for any fraud or willful breach of this Agreement.
(b) fraud. The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger Parties acknowledge and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, agree that in no event shall the Company ITC be obligated required to pay the Liquidated Amount or the Parent/MergerCo Expenses ITC Termination Fee on more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000one occasion.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 3 contracts
Sources: Separation Agreement, Merger Agreement (Entergy Corp /De/), Merger Agreement (ITC Holdings Corp.)
Effect of Termination. (a) Subject If this Agreement is terminated pursuant to Sections 9.2(b) and (d) Section 8.1 hereof, (i) all rights and obligations of the parties hereunder shall terminate and no party shall have any Liability to the other party under this Agreement, except for obligations of the parties hereto in the event of Sections 6.1(b), 6.5, 8.2, 10.4, 10.5 and 10.6, which shall survive the termination of this Agreement pursuant and (ii) subject to Section 9.1 6.4(c) hereof, this Agreement termination shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall not relieve any party from liability Liability for any fraud intentional or willful breach breaches of this AgreementAgreement prior to the Termination Date.
(bi) The Company shall pay In the event that either Seller or Buyer is entitled to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount")terminate, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)and terminates, or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i8.1(b) or 8.1(c) and, at the time of such termination, the government approval which is the subject of the conditions to the Closing set forth in Section 7.1(b) has not been received, but all of the other conditions to the Closing under Section 7.1 and Section 7.2 have been or are capable of being satisfied as of the date of termination or (Yii) MergerCo terminates in the event that Buyer is entitled to terminate, and terminates, this Agreement pursuant to Section 9.1(d)(ii8.1(f), then in either the case of (i) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(iii), if, prior Buyer shall pay to Seller a termination fee equal to $65,000,000 (the Special Meeting, (i“Reverse Termination Fee”) an Acquisition Proposal shall have been made directly to on or before the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately fifth Business Day following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated in writing to Buyer by MergerCoSeller no later than two Business Days after such termination. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding Seller agrees that, notwithstanding anything in this Agreement to the contrary contrary, in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect the event that the Reverse Termination Fee is paid to any termination of this Agreement Seller pursuant to this Section 9.1(c)(i) 8.2(b), other than claims of and causes of action arising from fraud or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofwillful misconduct, the payment of such Reverse Termination Fee shall be the Liquidated Amount sole and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages exclusive remedy of Seller and its Affiliates against Buyer or any other claim which Parent or MergerCo would otherwise be entitled to assert against of its Affiliates, and in no event will Seller, the Company or any of the Company Subsidiaries their respective Affiliates be entitled to recover any other money damages or any of their respective assetsother remedy, whether in law or against equity or any of their respective directors, officers, employees, partners, managers, members or shareholdersother type, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon (A) any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be Loss suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment failure of the amounts set forth in Section 9.2(b)transactions contemplated by this Agreement or any other Transaction Document to be consummated, Parent and MergerCo hereby agree that, upon any (B) the termination of this Agreement pursuant to Section 9.1(c)(iAgreement, (C) or Section 9.1(d)(ii) hereofany Liabilities arising under this Agreement, or Section 9.1(b)(i(D) any claims or Section 9.1(d)(i) hereof in circumstances where actions arising out of or relating to any breach, termination, or failure of or under this Agreement, and upon payment to Seller of the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofReverse Termination Fee, in Buyer shall have no event shall Parent further Liability to Seller or MergerCo (A) seek to obtain any recovery or judgment against the Company relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby. For all purposes of the Company Subsidiaries this Agreement, “willful misconduct” shall mean a conscious, voluntary act or any omission taken with intentional disregard of their respective assets, legal or against any contractual duty and knowledge that such action or omission is a breach of their respective directors, officers, employees, partners, managers, members such legal or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagescontractual duty.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Stock Purchase Agreement (Cardinal Health Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Section 8.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void (except for Sections 6.3, 8.2, and have Article 9 which shall survive such termination) and there shall be no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4Parent, the third sentence of Section 7.16 Purchaser or the Company, except (i) as set forth in Sections 6.3 and Articles 9 8.2, and 10; provided, however, that (ii) nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of any representation, warranty, covenant, or agreement of such party contained in this Agreement.
(b) The Company shall pay to MergerCo an amount in cash the Parent a termination fee equal to (A) $5,000,000 1,000,000 (the "Liquidated Amount"“Termination Fee”):
(i) if the Parent shall have terminated this Agreement pursuant to any of the Sections 8.1(c)(i), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii8.1(c)(ii), or 8.1(c)(iii);
(Xii) if the Company terminates Parent shall have terminated this Agreement pursuant to Section 9.1(c)(i8.1(c)(iv) or and (YA) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to or at the Special Meetingtime of such termination, a third party has publicly announced an intention to make (iwhether or not conditional) an Acquisition Proposal shall have been made directly to the Company's stockholders generally Company or any person shall have publicly announced of its Subsidiaries or to any of its Representatives, the consummation of which would constitute an Acquisition Proposal or solicited proxies or consents in opposition to the Merger Event (as defined below), and (iiB) within nine twelve (912) months immediately following the date termination of this Agreement, an Acquisition Event with such termination third party or its Affiliates is consummated or the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount such third party or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be its Affiliates providing for an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions Acquisition Event;
(collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by iii) if the Company shall have terminated this Agreement pursuant to Sections 8.1(d)(i); or
(iv) if the Company shall have terminated this Agreement pursuant to Sections 8.1(b)(ii) or 8.1(b)(iii) and, (A) prior to or at the time of such termination, a third party has publicly announced an intention to make (whether or not exceed $1,000,000conditional) an Acquisition Proposal to the Company or any of its Subsidiaries or to any of its Representatives, the consummation of which would constitute an Acquisition Event (as defined below), and (B) within twelve (12) months following the termination of this Agreement, an Acquisition Event with such third party or its Affiliates is consummated or the Company enters into a definitive agreement with such third party or its Affiliates providing for an Acquisition Event.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof The Termination Fee shall be payable by the Company to MergerCo by wire transfer of immediately available funds to such account as Parent may designate in writing to the Company:
(i) in the case of clause (WSection 8.2(b)(i) or (Y) thereofiii), within three (3) two business days after of the date termination of termination, this Agreement; and
(ii) in the case of clause Sections 8.2(b)(ii) or (Z) thereofiv), within three (3) two business days after the date earlier of entering the consummation of such Acquisition Event or the entry by the Company into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in For purposes of this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses term “Acquisition Event” shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or mean any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and following transactions (other than the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.Transactions):
Appears in 2 contracts
Sources: Merger Agreement (Eagle Supply Group Inc), Merger Agreement (Gulfside Supply, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination and abandonment of this Agreement pursuant to Section 9.1 hereofthis Article IX, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trusteesAffiliates, directors, officers or stockholders and all rights and obligations stockholders, other than the provisions of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a9.5 and the provisions of Article X, Section 7.5(e) shall relieve any party from liability for any fraud or willful breach of this Agreementand Section 7.14.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates event of termination of this Agreement under Section 9.1(d)(i) as a result prior to consummation of the Company having wilfully breached its obligations under Section 7.1(a)(itransactions contemplated hereby:
(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement by Parent pursuant to Section 9.1(c)(i9.3(ii);
(ii) or (Y) MergerCo terminates this Agreement by the Company pursuant to Section 9.1(d)(ii9.4(iii);
(iii) by either Parent or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, 9.2(ii) if prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and Board makes a Board Recommendation Change;
(iv) by either Parent or the party who shall have made Company pursuant to Section 9.2(ii) if prior to such termination any proposal or offer for an Acquisition Proposal made after the date hereof has been publicly announced or any affiliate thereof enter otherwise disclosed and not publicly withdrawn within five (5) Business Days prior to the Stockholders Meeting, the Company Board has not made a Board Recommendation Change and within twelve (12) months after the termination of this Agreement the Company enters into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall to any Alternative Transaction or consummates any Alternative Transaction; or
(v) by either Parent or the Company be obligated pursuant to pay Section 9.2(iii) if prior to such termination any proposal or offer for an Acquisition Proposal made after the Liquidated Amount date hereof has been publicly announced or otherwise disclosed and within twelve (12) months after the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions termination of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering enters into such a definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, agreement with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) Alternative Transaction or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to consummates any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.Alternative Transaction,
Appears in 2 contracts
Sources: Merger Agreement (Cpi International, Inc.), Merger Agreement (Cpi International, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto or its affiliateshereto, trusteesexcept with respect to Sections 6.4(b) and 6.10, directorsthis Section 8.2, officers or stockholders Section 8.3 and all rights and obligations of any party hereto Article IX, which shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10survive such termination; provided, however, that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful and material breach of this Agreementhereof.
(bi) The In the event that this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii), then the Company shall pay the Parent Termination Fee to MergerCo an amount in cash equal to General Growth Limited Partnership, a Delaware limited partnership (A) $5,000,000 (the "Liquidated AmountParent OP"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) at or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date time of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, same day funds.
(ii) in In the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreementevent that this Agreement is terminated pursuant to Section 8.1(b)(iii), and (iiix) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to such termination any person or "group" (within the meaning of Section 9.1(c)(i13(d)(3) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(bExchange Act) hereof shall be payable by have publicly made a Company Acquisition Proposal, which proposal is not withdrawn prior to the Company to MergerCo by wire transfer Stockholders Meeting, and (y) within 12 months of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof8.1(b)(iii), the payment Company enters into an agreement in respect of any Company Acquisition Proposal or a transaction pursuant to which any Company Acquisition Proposal is consummated, then the Company shall pay the Parent Termination Fee to Parent OP, by wire transfer of same day funds, on the date of execution of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with agreement in respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any Acquisition Proposal or, if earlier, consummation of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to such transaction.
(iii) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii), and (x) prior to such termination any person or "group" (within the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light meaning of Section 13(d)(3) of the difficulty of accurately determining actual damages with respect Exchange Act) shall have publicly made a Company Acquisition Proposal, which proposal is not withdrawn prior to the foregoing upon any Company Stockholders Meeting, and (y) within 12 months of the termination of this Agreement pursuant to Section 9.1(c)(i8.1(d)(ii) the Company enters into an agreement in respect of any Company Acquisition Proposal or Section 9.1(d)(ii) hereofa transaction pursuant to which any Company Acquisition Proposal is consummated, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where then the Liquidated Amount and Company shall pay the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofParent Termination Fee to Parent OP, by wire transfer of same day funds, on the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate date of execution of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof agreement in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any respect of the Company Subsidiaries or any Acquisition Proposal or, if earlier, consummation of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagessuch transaction.
Appears in 2 contracts
Sources: Merger Agreement (Rouse Company), Merger Agreement (General Growth Properties Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Sections 7.8 and 7.10, this Section 7.4, the third sentence of Section 7.16 9.2 and Articles 9 and 10Article X; provided, however, that nothing contained in this Section 9.2(a) 9.2 shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) Parent the sum of $5,000,000 2,000,000 (the "Liquidated Amount"), plus ) if this Agreement is terminated as follows:
(Bi) if this Agreement is terminated by Parent or MergerCo pursuant to Section 9.1(d)(ii)(A) or (iii) or;
(ii) if this Agreement is terminated by (x) the Parent/Company or Parent or MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under pursuant to Section 9.1(d)(i9.1(b)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) failure to obtain the required vote of the stockholders of the Company terminates this Agreement or by (y) Parent or MergerCo pursuant to Section 9.1(c)(i9.1(d)(i) and in the case of any termination pursuant to clause (x) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (iy) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made directly known to the Company's stockholders generally Company Board of Directors (or any person Person shall have publicly announced announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iiProposal) within nine (9) months immediately following at any time after the date of such termination this Agreement and prior to, in the case of clause (x), the taking of a vote of the shareholders of the Company contemplated by this Agreement at the special meeting of Company shareholders and in the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect case of clause (y), the date of termination; provided, however, if within 5 days from the date of this Agreement the Voting Agreement exactly in the form attached hereto as Exhibit C is executed by all Voting Agreement Stockholders thereto. Notwithstanding the foregoing, in no event shall then the Company shall only be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of pursuant to this Section 9.29.2(b)(ii), "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereofif, within three (3) business days 12 months after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the a Company Subsidiaries Subsidiary enters into an agreement, arrangement or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kindunderstanding, including, without limitation, consequentialan agreement in principle or letter of intent with respect to, indirect or punitive damagesconsummates, an Acquisition Proposal.
(c) (i) Upon the termination of this Agreement by Parent or MergerCo pursuant to Section 9.1(d)(i) or 9.1(d)(ii)(B) hereof, the Company shall pay to Parent an amount in cash equal to the aggregate amount of Parent's and MergerCo's out-of-pocket expenses incurred in connection with pursuing the transactions contemplated hereby (including, without limitation, legal, accounting, investment banking and printing fees) (collectively, the "Reimbursable Expenses") (as such Reimbursable Expenses may be estimated by Parent and MergerCo in good faith prior to the date of such payment, subject to an adjustment payment between the parties upon Parent's definitive determination of such Reimbursable Expenses). Notwithstanding the foregoing, if, the Company pays to Parent the Liquidated Amount, the Parent shall pay to the Company an amount in cash equal to the amount of Reimbursable Expenses, if any, paid by the Company to Parent.
Appears in 2 contracts
Sources: Merger Agreement (H Power Corp), Merger Agreement (Plug Power Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereofExcept as provided in Section 9.1, in the event of the termination of this Agreement pursuant to Section 9.1 hereof11.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto or any of its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for stockholders, subject to the agreements contained in Section 7.4, the third sentence provisions of Section 7.16 11.2(b) or Section 11.2(d), and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of this Agreementhereof occurring prior to termination.
(b) The Company shall pay Notwithstanding anything to MergerCo an amount the contrary contained in cash equal this Agreement, in the event that this Agreement is terminated by (i) Parent pursuant to (A) $5,000,000 (the "Liquidated Amount"Section 11.1(a)(iv), plus (B) the Parent/MergerCo Expenses Section 11.1(a)(v), or (as hereinafter definedC) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i11.1(a)(vi) as a result of a material breach of a covenant or agreement by the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)Company, or (Xii) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either 11.1(a)(vii), the Company or MergerCo terminates this Agreement pursuant shall pay to Section 9.1(b)(i)Parent, if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 $2,500,000 plus all documented fees and expenses incurred by Parent and MergerCo in connection with or related to the authorization, preparation, regulation, execution and performance of this Agreement and the Transactionstransactions contemplated hereby (including, including without limitation, all fees and disbursements expenses of its outside legal counsel, investment bankersaccountants, accountants experts, consultants, banks and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"financial institutions); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by to be made pursuant to Section 9.2(b11.2(b) hereof shall be payable made to Parent or its designee not later than two business days after delivery by Parent or its designee to the Company to MergerCo of notice of demand for payment and shall be made by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any Parent or its designee in the notice of demand for payment of the Parent/MergerCo Expenses required by delivered pursuant to this Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses11.2.
(d) Notwithstanding anything to The indemnification provisions set forth in Section 9 and the contrary remedies provided in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses 11.2 are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy remedies available to Parent and MergerCoAcquisition Sub hereunder or in connection with the Merger. The parties hereto expressly acknowledge and agree thatNeither Section 9 nor this Section 11.2, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon however, affects or eliminates any termination of this Agreement pursuant to Section 9.1(c)(i) statutory, contract or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against common law remedy the Company or the Selling Shareholders may have for misrepresentation, breach of warranty or breach of covenant by Parent or Acquisition Sub before or after the Closing or if the Closing does not occur. The amount of any of damages recoverable by the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (Bthe Selling Shareholders pursuant to this Section 11.2(d) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesshall not exceed $3,000,000.
Appears in 2 contracts
Sources: Merger Agreement (MJD Communications Inc), Merger Agreement (MJD Communications Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of Upon the termination of this Agreement pursuant in accordance with Section 11.2 hereof with respect to a System or Systems, and except as set forth in Section 9.1 hereof11.3(c) below, the Parties shall be relieved of any further obligations or liability under this Agreement with respect to the System or Systems that are the subject of a termination except that:
(i) in the case of a termination of this Agreement prior to any Closing occurring, only (1) the confidentiality obligations contained in Section 7.4 (with respect only to confidential information regarding Buyer) and Section 8.3 (with respect only to confidential information regarding Seller), (2) the confidentiality obligations under the Non-Disclosure Agreement, and (3) the expense allocation provisions under Section 16.1 shall survive such termination; provided, that, nothing herein shall relieve any Party from its obligations for a breach of this Agreement occurring prior to such termination.
(ii) in the case of a termination of this Agreement after one but not both Closings have been consummated, this Agreement shall forthwith become null terminate only insofar as it relates to the System for which a Closing did not occur and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and following obligations of any party hereto with respect to such terminated System shall cease except for continue to apply: (1) the agreements confidentiality obligations contained in Section 7.47.4 (with respect only to confidential information regarding Buyer) and Section 8.3 (with respect only to confidential information regarding Seller), (2) the third sentence of confidentiality obligations under the Non-Disclosure Agreement, and (3) the expense allocation provisions under Section 7.16 and Articles 9 and 1016.1; provided, howeverthat, that except as provided in Section 11.3(b), nothing contained in this Section 9.2(a) herein shall relieve any party from liability for its obligations in respect of any fraud or willful breach of this AgreementAgreement occurring prior to such termination.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement Upon any termination pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i11.2(b), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" Seller shall be an amount equal entitled to retain the reasonable entire Escrow Amount as reimbursement for its out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactionstransactions contemplated hereby, including without limitationand upon any termination pursuant to Section 11.2(a), fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof or (d), Buyer shall be payable by entitled to the Company entire Escrow Amount and Seller shall promptly, and in any event within two business days following such termination, return the Escrow Amount to MergerCo Buyer (by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCoBuyer). Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary set forth in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof15.3, the payment retention of the Liquidated Escrow Amount and the Parent/MergerCo Expenses by Seller shall constitute be liquidated damages with to Buyer in respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions all claims and shall constitute be the sole and exclusive remedy available to Parent and MergerCoSeller upon such a termination. The parties hereto expressly acknowledge and agree thatIn the event the Parties disagree as to whether a proper termination has occurred, Seller will not be entitled to retain or be obligated to repay the Escrow Amount until any such disagreement is resolved by the Parties in light of the difficulty of accurately determining actual damages with respect good faith.
(c) Notwithstanding anything to the foregoing upon contrary contained herein, the provisions of this Section 11.3, Article XV and Article XVI shall survive any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Knology Inc), Asset Purchase Agreement (Knology Inc)
Effect of Termination. (a) Subject In the event that this Agreement and Individual’s employment is voluntarily terminated by Individual pursuant to Sections 9.2(b) and (d) hereofSection 12(a), or in the event of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement for cause pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates 12(c), all obligations of the Company and all duties, responsibilities and obligations of Individual under this Agreement Agreement, except for those obligations set forth in Sections 8, 10, 11 and 17 hereof, shall cease and all unvested stock options and/or unearned milestone bonuses, will be forfeited. Upon termination pursuant to Section 9.1(d)(ii) or (Z) either 12(b), where the Company or MergerCo voluntarily terminates this Agreement pursuant to Section 9.1(b)(i)Agreement, if, prior to the Special Meeting, Company shall (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into pay Individual as severance compensation a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount cash sum equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions fifteen (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c15) Any payment months' of the Liquidated Amount required by Base Compensation, plus award the milestone option grants under Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i5(c) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where extent such milestones are met within the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofEmployment Term, and (ii) automatically vest all unvested stock options granted pursuant to Section 5(b) had the Agreement not been terminated. However, if termination pursuant to Section 12(b) occurs within the final fifteen (15) months of the Employment Term, then Individual will receive whatever Base Compensation as would have been payable for the remaining Employment Term of this Agreement, or through July 18, 2008. In addition, if Individual voluntarily terminates, all unvested stock options and/or unearned milestone bonuses, will be forfeited. In the event of a sale of the Company, to the extent not already vested, all 200,000 of Individual’s stock options shall automatically vest. In the event of a merger, consolidation, sale, or change of control, the Company's rights hereunder shall be in full and complete satisfaction of any and all damages arising as a result of assigned to the foregoingsurviving or resulting company, which company shall then honor this Agreement with Individual. Except for nonpayment of the amounts The obligations set forth in Section 9.2(b)Sections 8, Parent 10, 11, 12 and MergerCo hereby agree that, upon any termination 17 of this Agreement pursuant are intended to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where survive the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance termination of Individual's employment with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesCompany.
Appears in 2 contracts
Sources: Employment Agreement (Patient Safety Technologies, Inc), Employment Agreement (Patient Safety Technologies, Inc)
Effect of Termination. a. Except (ai) Subject for any breach of this Agreement prior to its termination, and (ii) except for the obligations in Section 5.2, 5.6 and 10.1 hereof, and (iii) except for termination pursuant to Sections 9.2(b8.3(c), 8.3(d) and 8.3(e) below, upon the termination of Agreement pursuant to Section 8.1, this Agreement shall become null and void and none of the Parties or any of their respective officers, directors, employees, agents, affiliates, consultants, stockholders or principals shall have any liability or obligation hereunder with respect hereto.
b. If this Agreement is terminated pursuant to 8.1(g) or 8.1(h), then neither party shall have any liability or obligation to the other.
c. If this Agreement is terminated pursuant to the provisions of Sections 8.1 (db), 8.1(e) hereofor 8.1(f), Buyer shall immediately pay to Seller in cash a termination fee of One Hundred Thousand and no/1OOths Dollars ($100,000.00) ("Termination Fee").
d. If this Agreement is terminated after due diligence, then Buyer shall pay to the Seller in cash the Termination Fee of One Hundred Thousand and No/lOOths ($100,000.00).
e. If this Agreement does not Close as specified herein, as a result of the failure to obtain governmental approvals, manufacturers' approvals or any other third party approvals, or consents after good faith efforts of all parties, to obtain the same, then, in that event, the Buyer shall pay to the Seller in cash the Termination Fee of One Hundred Thousand and No/100ths Dollars ($100,000.00).
f. The Termination Fee shall be the sole and exclusive remedy of the Stockholder, the Company and the JAG Subsidiaries for damages as a result of a pre-closing breach of this Agreement by Buyer except for the Buyer's willful and intentional breach of this agreement. Because the actual damages that the Stockholder, the Company and the JAG Subsidiaries would sustain if Buyer breaches its pre-closing obligations under this Agreement are uncertain and would be impossible or very difficult to ascertain accurately, the Parties agree in good faith that the Termination Fee would be reasonable and just compensation for the harm caused by such breach. Therefore, the Stockholder, the Company and the JAG Subsidiaries acknowledge and agree to accept said Termination Fee, if due and paid hereunder, as liquidated damages, and not as a penalty, in the event of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful a pre-closing breach of this Agreementby Buyer.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sunbelt Automotive Group Inc), Stock Purchase Agreement (Sunbelt Automotive Group Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the termination of If this Agreement is terminated pursuant to Section 9.1 hereof7.1, then this Agreement (other than as set forth in Section 5.13, this Agreement Section 7.2, Section 7.3, Section 7.4 and Article VIII, which provisions shall forthwith survive such termination) shall become null and void and have of no effect, without any effect with no liability on the part of any party hereto (or of any of its affiliates, trustees, directors, officers officers, employees, agents, legal or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10financial advisors or other representatives); provided, however, that nothing contained in this Section 9.2(a) neither the Company nor Parent shall relieve be relieved or released from any party from liability for any fraud or willful liabilities arising out of its material breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to If (Ai) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo Parent terminates this Agreement under pursuant to Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i7.1(g)(i) or Section 7.1(a)(iii7.1(i), or (Xii) the Company terminates this Agreement pursuant to Section 9.1(c)(i7.1(h), (iii) Parent or (Y) MergerCo the Company terminates this Agreement pursuant to Section 9.1(d)(ii7.1(b) or (Z) either without the Company Shareholders Meeting having occurred, Parent or MergerCo the Company terminates this Agreement pursuant to Section 9.1(b)(i7.1(d) or Parent terminates this Agreement pursuant to Section 7.1(g)(ii), ifor (iv) Parent or the Company terminates this Agreement (except as otherwise provided in the preceding clauses (i), (ii) or (iii)) following a material breach by the Company or any of its Affiliates or Representatives of any of the material provisions of Section 5.6 (other than a termination (x) by the Company pursuant to Section 7.1(f) or (y) by Parent or the Company pursuant to Section 7.1(c)) and in the case of any such termination pursuant to Section 7.1(b), 7.1(d) or 7.1(g)(ii) or any termination described in the preceding clause (iv) (A) at any time after the date of this Agreement and prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been made directly publicly announced or otherwise communicated in any manner to the Company's stockholders generally senior management or any person shall have Board of Directors of the Company or publicly announced an Acquisition Proposal or solicited proxies or consents in opposition otherwise publicly communicated to the Merger shareholders of the Company generally and (iiB) within nine (9) prior to the date that is 12 months immediately following after the effective date of such termination termination, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding to an Acquisition Proposal or an Acquisition Proposal is consummated, then in connection with any such termination pursuant to the foregoing, in no event shall preceding clauses (i) through (iv) the Company be obligated shall pay to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount Parent a termination fee equal to $1,300,000 (the reasonable “Termination Fee") and shall reimburse Parent for its reasonable, documented out-of-pocket costs A-29 120 fees and expenses incurred by Parent and MergerCo in connection with the transactions contemplated by this Agreement and up to a maximum of $800,000 (the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo “Termination Expenses"); provided, however, that if, prior to the aggregate amount No-Shop Period Start Time, (x) Parent terminates this Agreement pursuant to Section 7.1(i), then (y) for purposes of all Parent/MergerCo this Section 7.2(b) the Termination Fee shall equal $1,100,000 and the Termination Expenses shall be up to be reimbursed a maximum of $750,000. The Company shall satisfy its obligation under the preceding sentence by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds to an account that Parent designates (ix) in the case of termination pursuant to clause (Wi) or (Yii) thereofabove, within three not later than the time of such termination and (3) business days after the date of termination, (iiy) in the case of clause clauses (Ziii) thereofor (iv) above, within three (3) business days not later than the second Business Day after the date on which the Company consummates an Acquisition Proposal (as that term is defined for purposes of entering clause (B) of Section 7.2(b)) (whether or not, in the event the Company has entered into such a definitive agreement, the Company consummates such Acquisition Proposal during the foregoing 12-month period).
(c) The Company acknowledges that the agreements contained in Section 7.2(b) are an integral part of the transactions contemplated hereby and (iii) that, without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, event the Parent and Merger Sub prevail in any such case action, suit, arbitration or other proceeding brought to an account designated by MergerCo. Any enforce the payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreementamounts payable under Section 7.2(b), then Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses Merger Sub shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise also be entitled to assert against receive from the Company all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by them in connection with the enforcement of their right to collect such overdue amounts and the enforcement by Parent and Merger Sub of their rights under Section 7.2(b), together with interest on such overdue amounts at a rate per annum equal to the “prime rate” (as announced by JPMorgan Chase & Co. or any of successor thereto) in effect on the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect date on which such payment was required to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmade.
Appears in 2 contracts
Sources: Merger Agreement (Nashua Corp), Merger Agreement (Nashua Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the --------------------- termination of this Agreement as provided in Section 8.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4Parent, the third sentence of Section 7.16 Purchaser or the Company, except (i) as set forth in Sections 6.5(a), 8.2 and Articles 9 9.3 and 10; provided, however, that (ii) nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company If
(i) Parent shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates have terminated this Agreement pursuant to Section 9.1(c)(i8.1(d),
(ii) or (Y) MergerCo terminates the Company shall have terminated this Agreement pursuant to Section 9.1(d)(ii8.1(e),
(iii) or (Z) either the Company or MergerCo terminates Parent shall have terminated this Agreement pursuant to Section 9.1(b)(i), if, 8.1(c)(iii) following the date hereof but prior to such termination there shall have been a Takeover Proposal (other than a Takeover Proposal prior to the Special Meeting, date hereof or that is withdrawn prior to the termination of this Agreement),
(iiv) an Acquisition Proposal (x) Parent shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating terminated this Agreement pursuant to Section 9.1(c)(i8.1(b) hereofor Section 8.1(c)(ii); (y) following the date hereof but prior to such termination there shall have been a Takeover Proposal (other than a Takeover Proposal prior to the date hereof or that is withdrawn prior to the termination of this Agreement); and (z) concurrently with such termination, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(bor within 12 months thereafter, (A) hereof shall be payable by the Company to MergerCo by wire transfer enters into a merger agreement, acquisition agreement or similar agreement (including a letter of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(dintent) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination a Takeover Proposal, or a Takeover Proposal is consummated or (B) the Company enters into a merger agreement, acquisition agreement or similar agreement (including a letter of this intent) with respect to a Superior Proposal, or a Superior Proposal is consummated, or (v) (x)this Agreement shall have been terminated pursuant to Section 9.1(c)(i8.1(b) or Section 9.1(d)(ii8.1(c)(iv), (y) hereofany stockholder party to the Stockholder Agreement shall have breached or failed to perform any of obligations of such stockholder party under the Stockholder Agreement and (z) within 12 months thereafter, (A) the Company enters into a merger agreement, acquisition agreement or Section 9.1(b)(isimilar agreement (including a letter of intent) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages a Takeover Proposal, or any other claim which Parent a Takeover Proposal is consummated, or MergerCo would otherwise be entitled to assert against (B) the Company enters into a merger agreement, acquisition agreement or any similar agreement (including a letter of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, intent) with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofa Superior Proposal, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.Superior Proposal is consummated,
Appears in 2 contracts
Sources: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Merger Sub as provided in Section 9.1 hereof9.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto the Company or its affiliates, trustees, directorsMerger Sub or their respective Subsidiaries, officers or stockholders and all rights and obligations of any party hereto shall cease directors except for the agreements contained in (i) with respect to Section 7.4, Section 7.9, this Section 9.2 and Article X and (ii) with respect to any liabilities for damages incurred or suffered by a party as a result of the third sentence willful and material breach by the other party of Section 7.16 and Articles 9 and 10any of its representations, warranties, covenants or other agreements set forth in this Agreement or any Ancillary Document; provided, however, that nothing contained in the event this Agreement is terminated by Purchaser other than as a result of a willful and material breach by the Company and the Termination Fee and Purchaser Termination Expenses are paid pursuant to Section 9.2(a) shall relieve any party from liability for any fraud or willful breach 9.2(b), then Purchaser’s right to such payment will be the sole and exclusive remedy of this AgreementPurchaser and Merger Sub hereunder.
(b) The Notwithstanding any other provision of this Agreement, the Company and Purchaser agree that: (i) if this Agreement is terminated pursuant to Section 9.1(e) or Section 9.1(f) then the Company shall immediately pay to MergerCo an amount in cash equal Purchaser the Termination Fee and Purchaser Termination Expenses; (ii) if this Agreement is terminated pursuant to (A) $5,000,000 Section 9.1(b)(i) (provided, that at the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result time of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement such termination pursuant to Section 9.1(b)(i), ifthe condition precedent in Section 8.1(b) shall have been satisfied and the reason for the Closing not having previously occurred shall not be the failure to satisfy the condition precedent set forth in Section 8.2 through no fault of the Company) or (B) Section 9.1(b)(iii), then, in the event that, prior to the Special Meetingsuch termination, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person Third Party shall have publicly announced made, proposed, communicated or disclosed an intention to make an Acquisition Proposal, or such Acquisition Proposal or solicited proxies or consents in opposition to the Merger becomes publicly known, and (ii) within nine (9) 12 months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding to an Acquisition Proposal, then the foregoingCompany shall immediately pay to Purchaser the Termination Fee and Purchaser Termination Expenses; and (iii) if (A) this Agreement is terminated pursuant to Section 9.1(d), (B) no Termination Fee has been paid by the Company to Purchaser, and (C) within 12 months following such termination the Company enters into a definitive agreement with respect to an Acquisition Proposal, then, the Company shall immediately pay to Purchaser the Termination Fee and Purchaser Termination Expenses upon the entry into such definitive agreement.
(c) Without duplication of any payments made pursuant to Section 9.2(b), in no the event shall that this Agreement is terminated prior to the Effective Time pursuant to Section 9.1(b)(iii) or 9.1(d) or as a consequence of the failure or non-waiver of any of the conditions set forth in Section 8.3(a), 8.3(c) or 8.3(e), then the Company be obligated to shall pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be Purchaser an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with Purchaser Termination Expenses. In the event that this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating is terminated prior to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement Effective Time pursuant to Section 9.1(c)(i9.1(c) hereof, in any such case to an account designated by MergerCo. Any payment or as a consequence of the Parent/MergerCo Expenses required by failure or non-waiver of any of the conditions set forth in Section 9.2(b8.2(a) hereof or 8.2(c), then Purchaser shall be payable by pay the Company an amount equal to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Termination Expenses.
(d) Notwithstanding anything in this Section 9.2 to the contrary contrary, the Company shall not be required to pay any Termination Fee or Termination Expenses to Purchaser in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of the event this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered is terminated by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising Purchaser as a result of the foregoing. Except for nonpayment of the amounts set forth condition in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i8.3(f) or Section 9.1(d)(ii8.3(h) hereof, becoming incapable of being satisfied due to the death or Section 9.1(b)(i“Disability” (as that term is defined in the applicable employment agreement) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled applicable individuals party to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesthe agreements referenced therein.
Appears in 2 contracts
Sources: Merger Agreement (FTD Inc), Merger Agreement (FTD Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to any provision of Section 9.1 hereof10.1, this Agreement shall forthwith become null and void and have no effectfurther force, without except that the provisions of Sections 10.2, 11.1, 11.4, 11.5, 11.7, 11.10, 11.11, 11.12 (related to jurisdiction) and any liability on the part of any party hereto other Section which, by its terms, relates to post-termination rights or its affiliatesobligations, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach survive such termination of this AgreementAgreement and remain in full force and effect.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates If this Agreement under Section 9.1(d)(i) as a result is terminated, expenses and damages of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, parties hereto shall be determined as follows:
(i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally Except as provided below, whether or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to not the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingis consummated, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket all costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements transactions contemplated by this Agreement shall be paid by the party incurring such expenses.
(ii) In the event of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions 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 remain liable for any and any other agreements all damages, costs and expenses, including all reasonable attorneys’ fees, sustained or other documents relating incurred by the non-breaching party as a result thereof or in connection therewith or with respect to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount enforcement of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000its rights hereunder.
(ciii) Any payment of In the Liquidated Amount required event that this Agreement is terminated by Mid Penn pursuant to Section 9.2(b10.1(g), or by First Priority pursuant to Section 10.1(h), First Priority shall pay to Mid Penn the Mid Penn Termination Fee within five (5) hereof Business Days after Mid Penn makes written demand therefor. Such payments shall be payable by the Company to MergerCo made by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment Mid Penn.
(iv) In the event that this Agreement is terminated by First Priority pursuant to Section 10.1(i), each party shall bear and pay all costs and expenses incurred by it in connection with the transactions contemplated hereby, including fees and expenses of its own financial advisors, accountants and legal counsel, and neither party shall have any further obligation to the other arising hereunder.
(v) In the event that First Priority enters into a definitive agreement relating to a First Priority Acquisition Proposal or consummates a First Priority Acquisition Proposal within twelve (12) months after the termination of this Agreement (i) by Mid Penn pursuant to Sections 10.1(b) or 10.1(c) because of a willful breach by First Priority; or (ii) by Mid Penn or First Priority pursuant to Section 10.1(e)(i) following failure of the Parent/MergerCo Expenses required shareholders of First Priority to approve the transactions contemplated by this Agreement and, in the case of (ii): (y) First Priority has breached the provisions of Section 9.2(b6.8, or (z) hereof a third party has publicly proposed or announced an Acquisition Proposal, First Priority shall pay to Mid Penn the Mid Penn Termination Fee within two (2) Business Days after Mid Penn makes written demand therefor. Such payments shall be payable by the Company to MergerCo made by wire transfer of immediately available funds promptly following receipt to an account designated by Mid Penn.
(c) For purposes of this Agreement, the Company of reasonable documentation of all Parent/ MergerCo Expenses“Mid Penn Termination Fee” shall mean $3,500,000.00.
(d) Notwithstanding anything The right to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the receive payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute Mid Penn Termination Fee under Section 10.2(b)(iv) constitutes the sole and exclusive remedy available to Parent of either party against the other and MergerCo. The parties hereto expressly acknowledge their respective officers and agree that, in light of the difficulty of accurately determining actual damages directors with respect to the foregoing upon any a termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesSection.
Appears in 2 contracts
Sources: Merger Agreement (First Priority Financial Corp.), Merger Agreement (Mid Penn Bancorp Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Section 8.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto Yahoo!, Purchaser or its affiliatesLaunch, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained (i) as set forth in this Section 9.2(a8.2 and (ii) nothing herein shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company If (i) Yahoo! shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates have terminated this Agreement pursuant to Section 9.1(c)(i) 8.1(e), or (Yii) MergerCo terminates Launch shall have terminated this Agreement pursuant to Section 9.1(d)(ii8.1(f), then Launch shall pay to Yahoo! a termination fee (the "TERMINATION FEE") or of $480,000. Payment of Termination Fee shall be a condition to the effectiveness of a termination by Launch pursuant to Section 8.1(f). In the case of a termination by Yahoo! pursuant to Section 8.1(e), such Termination Fee shall be due and payable promptly, but in no event later than two business days after such termination.
(Zc) either If each of the Company or MergerCo terminates following shall occur: (i) Yahoo! shall have terminated this Agreement pursuant to Section 9.1(b)(i8.1(c) (but only if such termination is the result of the failure of the Minimum Condition or the occurrence of an event set forth in subsections (d) or (f) of Annex I hereto), if, ; (ii) following the date hereof but prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been made directly commenced, publicly proposed or communicated to the Company's stockholders generally Launch or any person its stockholders; and (iii) within nine months following such termination of this Agreement, Launch shall have publicly announced entered into an Acquisition Agreement with respect to an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such consummated the transaction contemplated by an Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding Proposal, then immediately upon the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment occurrence of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by first to occur of the Company to MergerCo by wire transfer of immediately available funds (i) events identified in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in Launch shall pay to Yahoo! the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesTermination Fee.
(d) Notwithstanding anything All amounts payable under this Section 8.2 shall be payable by cashier's check or wire transfer to the contrary such account as Yahoo! may designate in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect writing to Launch. Launch shall not withhold any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to United States withholding taxes on any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under this Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages8.2.
Appears in 2 contracts
Sources: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media Inc)
Effect of Termination. (a) Subject Any termination of this Agreement by Parent pursuant to Sections 9.2(bthis Article VIII shall require Parent and Purchaser to terminate the Offer if theretofore commenced.
(b) and (d) hereofExcept as provided in Section 8.5(c), in the event of the termination of this Agreement and the abandonment of the Merger pursuant to Section 9.1 hereofthis Article VIII prior to the Effective Time, this Agreement (other than Section 6.2(b) and 6.16(b) and Articles VIII and IX and, if the Purchase Time has occurred, Sections 3.2, 3.5 and 6.5) shall forthwith become null and void and have of no effect, without any effect with no liability on the part of any party hereto (or of any of its affiliates, trustees, directors, officers officers, employees, agents, legal and financial advisors or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10other representatives); provided, however, that nothing contained in this that, subject to Section 9.2(a8.5(f), no such termination (or termination of the Offer) shall relieve any party Person of any liability or damages resulting from liability for any fraud willful or willful intentional breach of this Agreement.
(bc) The In the event that:
(i) this Agreement is terminated by the Company shall pay pursuant to MergerCo an amount in cash equal Section 8.3(b) or by Parent pursuant to Section 8.4(c); or
(ii) this Agreement is terminated by the Company pursuant to Section 8.3(a)(ii) or 8.3(a)(iii) or by Parent pursuant to Section 8.4(a) or 8.4(b), and (A) $5,000,000 (at any time on or after the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, date hereof and prior to the Special Meeting, (i) an such termination a bona fide Acquisition Proposal shall have been made directly to the Company's stockholders generally Company Board or publicly announced or publicly disclosed and, in each case, not definitively withdrawn, or any person Person shall have publicly announced an intention to make an Acquisition Proposal or solicited proxies or consents which intention has not been definitively withdrawn (in opposition each case, a “Qualifying Acquisition Proposal”), (B) the Minimum Tender Condition shall not have been satisfied at the time of termination of this Agreement (and all other conditions set forth in Paragraphs 1(b) and 1(c) of Exhibit A shall have been satisfied at such time), (C) neither Parent nor any of its Affiliates shall have publicly stated (and not withdrawn at least five (5) Business Days prior to such termination) that it would not be obligated to accept Shares for payment pursuant to the Merger Offer if the Minimum Tender Condition were met, and (iiD) within nine (9) months immediately following after the date of such termination termination, either (1) the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive acquisition agreement with respect thereto. Notwithstanding to a Qualifying Transaction, which is thereafter consummated (provided, that consummation of such Qualifying Transaction shall not be required if such acquisition agreement is entered into with the foregoingPerson who (or whose Affiliate) proposed a Qualifying Acquisition Proposal), in no event shall (2) the Company be obligated to pay the Liquidated Amount Board recommends that stockholders tender into a Qualifying Transaction that involves a tender or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2exchange offer, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions which offer is thereafter consummated (collectively, the "Parent/MergerCo Expenses"); provided, howeverthat consummation of such offer shall not be required if such offer is made by the Person who proposed (or whose Affiliate proposed) a Qualifying Acquisition Proposal), that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by or (3) a Qualifying Transaction is consummated; then in any such case, the Company shall not exceed $1,000,000.
(c) Any payment of pay Parent the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo Termination Fee, by wire transfer of immediately available funds to the account or accounts designated by Parent. Such payment shall be made (i1) concurrently with such termination in the case of a termination by the Company pursuant to Section 8.3(b), (2) on the second Business Day following the date of such termination in the case of a termination by Parent pursuant to Section 8.4(c), and (3) on the first Business Day after (x) the entry into a definitive acquisition agreement, or the recommendation of the Company Board that stockholders tender their shares, with respect to the Qualifying Transaction with the Person who (or whose Affiliate) proposed a Qualifying Acquisition Proposal or (y) the consummation of the Qualifying Transaction, in the case of both (x) and (y) as referred to in clause (D) of Section 8.5(c)(ii) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement a termination fee payable pursuant to Section 9.1(c)(i) hereof8.5(c)(ii). For the avoidance of doubt, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company shall not be required to MergerCo by wire transfer pay a termination fee pursuant to more than one clause of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesthis Section 8.5(c) or on more than one occasion.
(d) The Company acknowledges that the agreements contained in Section 8.5(c) are an integral part of the transactions contemplated by this Agreement and that, without those agreements, Parent and Purchaser would not have entered into this Agreement.
(e) Each party agrees that if either party commences litigation in connection with the payments contemplated by this Section 8.5, the prevailing party shall be entitled to receive from the losing party its costs and expenses (including attorneys’ fees) in connection with such suit.
(f) Notwithstanding anything to the contrary in this Agreement, each of Parent and MergerCo hereto expressly acknowledge Purchaser acknowledges and agree that, with respect to any termination agrees on behalf of this Agreement itself and its Affiliates that in the event that the Termination Fee becomes payable and is paid by the Company pursuant to this Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof8.5, the payment of right to receive the Liquidated Amount and the Parent/MergerCo Expenses Termination Fee shall constitute liquidated damages with respect to any claim for damages or any other claim which each of Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the Purchaser’s sole and exclusive remedy available to under this Agreement; provided that Parent and MergerCo. The parties hereto expressly acknowledge Purchaser may seek money damages for a willful or intentional breach of Section 6.3 in the event that Parent returns, and agree thatirrevocably waives any right to, in light the Termination Fee within ten (10) Business Days after receipt by the Parent of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesTermination Fee.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LS Cable Ltd.), Merger Agreement (Superior Essex Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Company or Purchaser as provided in Section 9.1 hereof6.1, this Agreement shall will forthwith become null and void and have there will be no effect, without any liability or obligations on the part of Company, on the one hand, or Purchaser, on the other hand, or any party hereto or its of their respective affiliates, trusteesofficers, directorsdirectors or shareholders, officers or stockholders and all rights and obligations except (i) with respect to the provisions of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a6.2, as applicable, and (ii) shall that no such termination will relieve any party from liability for any fraud or willful breach of this Agreementtheir respective representations, warranties, covenants and other obligations hereunder prior to the date of termination.
(b) The Company shall pay If this Agreement is terminated mutually by the parties pursuant to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"Section 6.1(a), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(iby Purchaser pursuant to Sections 6.1(b)(i) or Section 7.1(a)(iii6.1(b)(ii), or (X) the by Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i6.1(c)(i), ifthen, prior without limitation of a party’s rights and remedies hereunder or otherwise, Purchaser shall be entitled to a return of the Special MeetingEscrow Amount and a full refund of the Deposit. In such event, (i) an Acquisition Proposal Purchaser shall have been made directly to notify the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents Escrow Agent in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company writing and the party who Escrow Agent will immediately return the Escrow Amount (less the Deposit) as instructed. The Escrow Agent shall have made such Acquisition Proposal return the Escrow Amount (less the Deposit) to Purchaser regardless of any dispute or any affiliate thereof enter into a definitive agreement with respect theretowritten instrument from Company. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of further return the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company Deposit to MergerCo Purchaser in cash or by wire transfer of immediately available funds within two (i2) in days following the case of clause (W) or (Y) thereof, within three (3) business days after the effective date of any such termination, .
(iic) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating If this Agreement is terminated by Purchaser pursuant to Section 9.1(c)(i) hereof6.1(b)(iii), in any such case or by Company pursuant to an account designated by MergerCo. Any payment Section 6.1(c)(iii), then, as Purchaser’s sole and exclusive remedy and as liquidated damages, Purchaser shall be entitled to a return of the Parent/MergerCo Expenses required by Section 9.2(bEscrow Amount (less the Deposit), a full refund of the Deposit, and Company will pay to Purchaser a termination fee equal to Ten Thousand Dollars ($10,000.00) hereof (the “Termination Fee”). In such event, Purchaser shall be payable by notify the Escrow Agent in writing and the Escrow Agent will immediately return the Escrow Amount (less the Deposit) as instructed. The Escrow Agent shall return the Escrow Amount (less the Deposit) to Purchaser regardless of any dispute or written instrument from Company. Company shall further return the Deposit and pay the Termination Fee to MergerCo Purchaser in cash or by wire transfer of immediately available funds promptly funds, in each case within two (2) days following receipt by the Company effective date of reasonable documentation of all Parent/ MergerCo Expensesany such termination.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of If this Agreement is terminated by Company pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof6.1(c)(ii), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofthen, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the as Company’s sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree thatas liquidated damages, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) Company shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain retain the Deposit without any other damages further action required by Purchaser. Purchaser will be entitled to the Escrow Amount (less the Deposit) and shall accordingly notify the Escrow Agent in writing thereof. Upon Escrow Agent’s receipt of notice from Purchaser, Escrow Agent will immediately forward the Escrow Amount (less the Deposit) as instructed. The Escrow Agent shall forward the Escrow Amount (less the Deposit) to Purchaser regardless of any kind, including, without limitation, consequential, indirect dispute or punitive damageswritten instrument from Company.
Appears in 2 contracts
Sources: Share Purchase Agreement (Weiner David), Share Purchase Agreement (Trestle Holdings Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto Parent, Merger Sub or its affiliates, trustees, directors, the Company or their respective officers or stockholders and all rights and obligations of any party hereto shall cease directors except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in with respect to this Section 9.2(a) 9.2 and Article X, provided that the termination of this Agreement shall not relieve any party from any liability for any fraud or willful material breach of any covenant or agreement or material breach of any representation or warranty in this AgreementAgreement occurring prior to termination.
(b) The Company If Parent shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates terminate this Agreement pursuant to Section 9.1(c)(i9.1(f), then the Company shall pay to Parent the Parent Expenses, within two Business Days after delivery to the Company of written notice of the amount of such Parent Expenses.
(c) If the Company or (Y) MergerCo terminates Parent shall terminate this Agreement pursuant to Section 9.1(d)(ii) 9.1(d), or (Z) either if the Company or MergerCo terminates shall terminate this Agreement pursuant to Section 9.1(b)(i9.1(e), ifthen Parent shall pay to the Company, not later than two Business Days following such termination, an amount equal to $1,567,178 (the “Termination Fee”), plus the Company Expenses, within two Business Days after delivery to Parent of written notice of the amount of such Company Expenses.
(d) If (i) the Company or Parent shall terminate this Agreement pursuant to Section 9.1(b), or if the Company shall terminate this Agreement pursuant to Section 9.1(g), (ii) at or prior to the Special Meeting, (i) an Acquisition Proposal time of the event giving rise to such termination there shall have been made directly known to the Company's stockholders generally or any person shall have proposed to Parent or otherwise publicly disclosed or announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iiiii) within nine (9) 12 months immediately following of the date termination of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter this Agreement, Parent enters into a definitive agreement (other than a confidentiality agreement) with respect thereto. Notwithstanding to, or consummates, an Acquisition Proposal, then Parent shall pay to the foregoingCompany, in no event shall not later than two Business Days after the execution of the definitive agreement or consummation of the underlying transaction, as applicable, and the delivery to Parent of written notice of the amount of such Company Expenses, the Termination Fee plus the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. Expenses.
(e) For purposes of this Section 9.2, "Parent/MergerCo Expenses" the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 7.5(a) hereof, except that (i) the reference to “more than 20%” in the definition therein of “Acquisition Proposal” shall be deemed to be a reference to “more than 50%”, and (ii) such term shall exclude any offer or proposal relating to an amount equal equity financing with respect to the reasonable out-of-pocket costs A-29 120 and expenses incurred by greater of (x) securities representing 20% or less of the voting power of Parent and MergerCo in connection with this Agreement and or 20% or less of the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf assets of Parent and MergerCo together with its Subsidiaries taken as a whole and (y) securities whose sale results in gross proceeds to Parent of not more than $10 million (as to which all amounts in excess of $5 million shall be used to repay amounts owed to Hercules Technology Growth Capital, Inc.), and, in either case, the other out-of-pocket costs and expenses incurred by primary purpose of which is to raise capital for Parent and MergerCo in connection with analyzing its Subsidiaries and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000repay such debt.
(cf) Any payment of the Liquidated Amount required by All payments under this Section 9.2(b) hereof 9.2 shall be payable by the Company to MergerCo made by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by payee to the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensespayor.
(dg) Notwithstanding anything to Each of Parent and the contrary Company acknowledges that the agreements contained in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses 9.2 are payable in accordance with Section 9.2(b) hereof, the payment an integral part of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to transactions contemplated by this Agreement and the Transactions are not a penalty, and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, without these agreements, neither such party, as a beneficiary under certain of these agreements, would enter into this Agreement. If the payor fails to pay promptly the fee due pursuant to this Section 9.2, the payor will also pay to the payee the payee’s reasonable costs and expenses (including legal fees and expenses) in light connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of the difficulty of accurately determining actual damages with respect unpaid fee under this Section 9.2, accruing from its due date, at an interest rate per annum equal to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof two percentage points in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate excess of the damages that prime commercial lending rate quoted by Citibank, N.A. Any change in the interest rate hereunder resulting from a change in such prime rate will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where effective at the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result beginning of the foregoing. Except for nonpayment date of the amounts set forth such change in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagessuch prime rate.
Appears in 2 contracts
Sources: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Effect of Termination. (a) Subject The Party desiring to Sections 9.2(b) and (d) hereof, in the event of the termination of terminate this Agreement pursuant to Section 9.1 hereof7.1 above shall deliver written notice of such termination to each other Party or Parties hereto specifying with particularity the reason for such termination, and such termination will be effective immediately upon delivery. If this Agreement shall forthwith is terminated pursuant to Section 7.1 above, it will become null and void and have of no further force and effect, without any with no liability on the part of any party hereto Party to this Agreement (or its affiliatesany director, trusteesofficer, directorsemployee, officers agent or stockholders and all rights and obligations representative of any party hereto shall cease such Party), except for that (i) if applicable, Digital River will be entitled to the agreements contained Company Termination Fee and/or the Expense Reimbursement described in Section 7.47.2(b) below, and (ii) if applicable, the third sentence of Company will be entitled, as its sole and exclusive remedy, to the Purchaser Termination Fee described in Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a7.2(c) shall relieve any party from liability for any fraud or willful breach of this Agreementbelow.
(b) The In the event of termination (i)(A) by Digital River pursuant to Section 7.1(b) (inclusive) or by the Company shall pursuant to Section 7.1(c), the Company will pay to MergerCo an amount Digital River as soon as reasonably practicable (and in cash equal to (Aany event, within two Business Days following such termination) $5,000,000 (by wire transfer of same day funds the "Liquidated Amount")Company Termination Fee, plus or (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under by Digital River pursuant to Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii7.1(e), or (X) the Company terminates this Agreement pursuant to h), or by either Party under Section 9.1(c)(i7.1(d) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either 7.3 and, in any of the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i)foregoing circumstances, if, if prior to the Special Meetingone year anniversary of such termination, (i) the Company consummates a transaction contemplated by an Acquisition Proposal shall have been made directly that was received by the Company prior to the Company's stockholders generally or termination of this Agreement, the Company will pay to Digital River as soon as reasonably practicable (and in any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to event within two Business Days following the Merger consummation of such transaction) by wire transfer of same day funds the Company Termination Fee, and (ii) within nine (9) months immediately following the date of such termination by Digital River pursuant to Section 7.1(e), or by either Party pursuant to Section 7.1(d), the Company will pay to Digital River as soon as reasonably practicable (and the party who shall have made in any event within two Business Days following such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(ctermination) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available same day funds (i) the Expense Reimbursement Fee. In the event that termination of this Agreement results in the case payment of clause an Expense Reimbursement Fee (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement ie. pursuant to Section 9.1(c)(i7.2(b)(ii) hereofabove) and a Company Termination Fee subsequently becomes payable (ie. pursuant to Section 7.2(b)(i)(B) above), in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall Expense Reimbursement Fee actually paid will be payable by deducted from the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Termination Fee due and owing. Notwithstanding anything to the contrary in this Agreement, Parent the Purchaser’s and MergerCo hereto expressly acknowledge and agree that, with respect Digital River’s right to any termination of terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount 7.1 above and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the receive payment of the Liquidated Amount Company Termination Fee and/or Expense Reimbursement Fee pursuant to this Section 7.2(b) shall be the sole and exclusive remedy of the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages Purchaser and Digital River or any other claim which Parent or MergerCo would otherwise be entitled to assert of their Affiliates for monetary damages against the Company or any of the Company Subsidiaries their respective Affiliates or any of their respective assetsstockholders, partners, members or against representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee and/or Expense Reimbursement Fee in accordance with this Section 7.2(b), none of the Company or any of their respective directors, officers, employeesAffiliates or any of their respective stockholders, partners, managers, members or shareholdersrepresentatives shall have any further liability or obligation relating to or arising out of this Agreement or any of the agreements, with respect certificates, or documents contemplated hereby or the transactions contemplated by this Agreement or any of the agreements, certificates, or documents contemplated hereby. In no event shall Digital River or the Purchaser seek any money damages or any other recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, other than the Company Termination Fee and/or Expense Reimbursement Fee, but the foregoing will not eliminate or limit the right of Digital River and Purchaser to seek equitable relief pursuant to the terms of Section 7.6(a) of this Agreement. In no event will more than one Company Termination Fee be due and owing.
(c) In the event of termination by the Company pursuant to Section 7.1(f), Digital River will pay to the Company as soon as reasonably practicable (and in any event within two Business Days following such termination) by wire transfer of same day funds the Purchaser Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Company’s right to terminate this Agreement pursuant to Section 7.1 above and receive payment of the Purchaser Termination Fee pursuant to this Agreement and the Transactions and Section 7.2(c) shall constitute be the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of its Affiliates against Digital River or the Company Subsidiaries Purchaser or any of their respective assets, Affiliates or against any of their respective directors, officers, employeesstockholders, partners, managersmembers or representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Purchaser Termination Fee in accordance with this Section 7.2(c), none of Digital River or the Purchaser or any of their respective Affiliates or any of their respective stockholders, partners, members or shareholdersrepresentatives shall have any further liability or obligation relating to or arising out of this Agreement or any of the agreements, and certificates, or documents contemplated hereby or the transactions contemplated by this Agreement or any of the agreements, certificates, or documents contemplated hereby. In no event shall the Company seek any (By) be entitled to seek equitable relief or obtain equitable remedies of any kind whatsoever or (z) money damages or any other recovery, judgment, or damages of any kind, including, without limitation, including consequential, indirect indirect, or punitive damages, other than the Purchaser Termination Fee. In no event will more than one Purchaser Termination Fee be due and owing.
(d) For purposes of this Agreement, “Company Termination Fee” will mean an amount equal to US $3,000,000 and “Purchaser Termination Fee” will mean an amount equal to US $3,000,000. For purposes of this Agreement, “Expense Reimbursement Fee” will mean an amount equal to all out of pocket expenses and fees incurred by Digital River and the Purchaser in connection with the negotiation, execution and performance of this Agreement. In the event any Company Termination Fee, Purchaser Termination Fee, or Expense Reimbursement Fee is not paid when due, the Party obligated to pay such amount will additionally pay interest at a rate of 4% per annum from the date due and reimburse the Party entitled to such amount for its costs of collection.
Appears in 2 contracts
Sources: Arrangement Agreement (LML Payment Systems Inc), Arrangement Agreement (Digital River Inc /De)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Validus or IPC as provided in Section 9.1 hereof7.1, this Agreement shall forthwith become null void, and void and have there shall be no effect, without any liability or obligation on the part of any party hereto IPC, Amalgamation Sub or its affiliates, trustees, directors, Validus or their respective officers or stockholders directors under or arising from this Agreement, except with respect to Section 5.2(b) (Confidentiality), Section 5.7 (Fees and all rights and obligations of any party hereto shall cease except for the agreements contained in Expenses), Section 7.4, the third sentence of Section 7.16 and Articles 9 and 105.19 (Requisitioned Meeting); provided, however, that nothing contained in this Section 9.2(a) 7.2 (Effect of Termination), Section 7.3 (Repayment of the Reimbursement Amount), and ARTICLE VIII (General Provisions), which shall relieve survive such termination, except that no party shall be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful breach of this Agreement (including in the event that this Agreement is terminated by either party pursuant to Section 7.2(e)). For the avoidance of doubt, Section 5.17 shall not survive termination of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (If IPC or Validus, as the "Liquidated Amount")case may be, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i7.1(d), then the non-terminating party shall, as promptly as reasonably practicable (and in any event within three business days following such termination), pay to the terminating party, by wire transfer of immediately available funds, an amount equal to $16,000,000 (the “Termination Fee”).
(c) or (Y) MergerCo If either party terminates this Agreement pursuant to Section 9.1(d)(ii7.1(c), and (i) at any time on or after June 12, 2009 and on or prior to January 31, 2010, an Acquisition Proposal (Zwhich for the purposes of this Section 7.2(c) shall apply to an Acquisition Proposal for either IPC or Validus) shall have been publicly announced or otherwise communicated to the Company officers of a party or MergerCo its board of directors, and (ii) within 12 months of the date of such termination of this Agreement, such party or any of its subsidiaries enters into or consummates an Acquisition Transaction with the person (or its affiliate) that made such Acquisition Proposal, then such party shall pay to the other party upon the earlier of the date of such execution or such consummation, by wire transfer of immediately available funds, the Termination Fee.
(d) If either party terminates this Agreement pursuant to Section 9.1(b)(i)7.1(e) and (i) at any time on or after June 12, if, 2009 and on or prior to the Special Meeting, (i) date of such termination an Acquisition Proposal (which for the purposes of this Section 7.2(d) shall apply to an Acquisition Proposal for either IPC or Validus) shall have been made directly publicly announced or otherwise communicated to the Company's stockholders generally officers of the non-terminating party or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger its board of directors, and (ii) within nine (9) 12 months immediately following of the date of such termination of this Agreement, the Company and non-terminating party or any of its subsidiaries enters into or consummates an Acquisition Transaction with the party who shall have person (or its affiliate) that made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding Proposal, then the foregoing, in no event non-terminating party shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and terminating party upon the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment earlier of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo date of such execution or such consummation, by wire transfer of immediately available funds funds, the Termination Fee.
(ie) in If IPC or Validus, as the case of clause (W) or (Y) thereofmay be, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating terminates this Agreement pursuant to Section 9.1(c)(i7.1(f) hereof, in because the Required Validus Vote has not been obtained and (i) at any such case time on or after the date of this Agreement and on or prior to an account designated by MergerCo. Any payment the date of the Parent/MergerCo Expenses required by Section 9.2(bValidus Shareholders Meeting, an Acquisition Proposal is publicly announced or otherwise communicated to the officers of Validus or Validus’ board of directors, and (ii) hereof within 12 months of the date of such termination of this Agreement, Validus or any of its subsidiaries enters into or consummates an Acquisition Transaction with the person (or its affiliate) that made such Acquisition Proposal, then Validus shall be payable by pay to IPC upon the Company to MergerCo earlier of the date of such execution or such consummation, by wire transfer of immediately available funds promptly following receipt by funds, the Company of reasonable documentation of all Parent/ MergerCo ExpensesTermination Fee.
(df) Notwithstanding anything to If IPC or Validus, as the contrary in this Agreementcase may be, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of terminates this Agreement pursuant to Section 9.1(c)(i7.1(f) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where because the Liquidated Amount Required IPC Vote has not been obtained and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate at any time on or after June 12, 2009 and on or prior to the date of the damages that will be suffered by reason IPC Shareholders Meeting, an Acquisition Proposal is publicly announced or otherwise communicated to the officers of any such proposed IPC or actual termination IPC’s board of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofdirectors, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result within 12 months of the foregoing. Except for nonpayment date of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any such termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofAgreement, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company IPC or any of its subsidiaries enters into or consummates an Acquisition Transaction with the Company Subsidiaries person (or any its affiliate) that made such Acquisition Proposal, then IPC shall pay to Validus upon the earlier of their respective assetsthe date of such execution or such consummation, or against any by wire transfer of their respective directorsimmediately available funds, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesthe Termination Fee.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Ipc Holdings LTD), Amalgamation Agreement (Validus Holdings LTD)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to any provision of Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effectfurther force, without any liability on except that (i) the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence provisions of Section 7.16 3.1 and Articles 9 Article VIII, and 10; provided(ii) any other Section which, howeverby its terms, that nothing contained in this Section 9.2(a) relates to post-termination rights or obligations, shall relieve any party from liability for any fraud or willful breach survive such termination of this AgreementAgreement and remain in full force and effect.
(b) The Company In recognition of the efforts, expenses and other opportunities foregone by Bancorp while structuring and pursuing the Merger, the parties hereto agree that FMS shall pay to MergerCo Bancorp a termination fee of seven million three hundred thousand dollars ($7,300,000) (the “FMS Termination Fee”) in the manner and subject to the conditions set forth below if:
(i) this Agreement is terminated by Bancorp pursuant to Section 8.1(i) or 8.1 (j);
(ii) this Agreement is terminated by Bancorp pursuant to Sections 8.1(b) or 8.1(c) and, in each case, within 18 months after such termination FMS or a FMS Subsidiary enters into any agreement with respect to, or consummates, any Acquisition;
(iii) this Agreement is terminated by Bancorp pursuant to Sections 8.1(b) or 8.1(c) resulting from the intentional or willful conduct or gross negligence of FMS;
(iv) this Agreement is terminated by either Bancorp or FMS pursuant to Section 8.1(e), and an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of FMS or the FMS Board of Directors (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of FMS contemplated by this Agreement at the FMS Meeting; or
(v) this Agreement is terminated by FMS pursuant to Section 8.1(k). In the event the FMS Termination Fee shall become payable pursuant to Section 8.2(b)(i), (iii) or (iv), (x) FMS shall pay to Bancorp an amount in cash equal to three million seven hundred thousand dollars (A$3,700,000) $5,000,000 on or before the third Business Day following termination of this Agreement, and (y) if within 18 months after such termination FMS or a FMS Subsidiary enters into any agreement with respect to, or consummates, any Acquisition, FMS shall pay to Bancorp the "Liquidated Amount"FMS Termination Fee (net of any payment made pursuant to clause (x) above) on the earliest of the date of execution of such agreement or consummation of the Acquisition. In the event the FMS Termination Fee shall become payable pursuant to Section 8.2(b)(ii), plus FMS shall pay to Bancorp the entire FMS Termination Fee on the earliest of the date of execution of such agreement or consummation of the Acquisition. In the event the FMS Termination Fee shall become payable pursuant to Section 8.2(v), FMS shall pay to Bancorp the entire FMS Termination Fee within three Business Days following the date of termination of this Agreement. Any amount that becomes payable pursuant to this Section 8.2(b) shall be paid by wire transfer of immediately available funds to an account designated by Bancorp.
(Bc) In recognition of the Parent/MergerCo Expenses efforts, expenses and other opportunities foregone by Bancorp while structuring and pursuing the Merger, the parties hereto agree that FMS shall pay to Bancorp a termination fee of one million eight hundred thousand dollars (as hereinafter defined$1,800,000) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company FMS terminates this Agreement pursuant to Section 9.1(c)(i8.1(l) and within 18 months after such termination FMS or a FMS Subsidiary enters into any agreement with respect to, or consummates, any Acquisition (Ythe “FMS Section 8.1(l) MergerCo terminates this Agreement Termination Fee”). In the event the FMS Section 8.1(l) Termination Fee shall become payable pursuant to this Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.2(c), if, prior FMS shall pay to Bancorp the Special Meeting, (ientire FMS Section 8.1(l) an Acquisition Proposal shall have been made directly to Termination Fee on the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following earliest of the date of execution of such termination agreement or consummation of the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect theretoAcquisition. Notwithstanding the foregoing, in no event shall the Company be obligated Any amount that becomes payable pursuant to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" 8.2(c) shall be paid by wire transfer of immediately available funds to an amount equal to account designated by Bancorp.
(d) Except as provided in Sections 8.2(b) and 8.3, whether or not the Merger is consummated, all out of pocket expenses, including, without limitation, reasonable out-of-pocket costs A-29 120 legal accounting and investment banking expenses incurred by Parent such other party in connection with the entering into this Agreement and MergerCo the carrying out of all acts contemplated hereunder (collectively referred to hereunder as the “Costs”) incurred in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to transactions contemplated hereby shall be reimbursed borne by the Company shall not exceed $1,000,000party incurring such Costs.
(ce) Any payment In no event shall any officer, agent, or director of the Liquidated Amount required FMS, any FMS Subsidiary, Bancorp or any Bancorp Subsidiary, be personally liable thereunder for any default by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, any party in any of its obligations hereunder unless any such case to an account designated default was intentionally caused by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensessuch officer, agent or director.
(df) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses In no event shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise Bancorp be entitled to assert against receive both the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement FMS Termination Fee and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to FMS Section 9.1(c)(i8.1(1) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesTermination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Beneficial Mutual Bancorp Inc), Merger Agreement (Beneficial Mutual Bancorp Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereofthis Article IX, the Merger shall be deemed abandoned and this Agreement shall forthwith become null and void and have no effectvoid, without any liability on the part of any party hereto or its affiliateshereto, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained as provided in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement9.2, Section 7.1, Section 7.10 and Section 7.14.
(b) The If (x) Parent shall have terminated this Agreement pursuant to Sections 9.1(d)(iii), 9.1(d)(iv) or 9.1(d)(v) or (y) either (1) Parent or the Company shall have terminated this Agreement pursuant to Section 9.1(b) or (2) Parent shall have terminated this Agreement pursuant to Section 9.1(d)(i), 9.1(d)(ii) or 9.1(f) and, prior to or within one (1) year after any termination described in this clause (y), the Company (or any of its Subsidiaries) shall have directly or indirectly entered into a definitive agreement for, or shall have consummated, an Acquisition Transaction or (z) the Company shall have terminated this Agreement pursuant to Section 9.1(e)(iii), then, in any of such cases, the Company shall pay to MergerCo an amount in cash equal to Parent (A) a termination fee of five million dollars ($5,000,000 (the "Liquidated Amount"5,000,000), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable Parent's actual, documented out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactionstransactions contemplated hereby, including including, without limitation, legal, professional and service fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses")expenses; provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed any liquidated damage amounts previously paid by the Company to Parent pursuant to Section 9.2(c) shall be credited against the termination fee payable under this Section 9.2(b); provided further, however, that no amounts paid in respect of expenses pursuant to Section 9.2(c) shall be credited against any additional expenses covered hereunder and not exceed $1,000,000previously paid under Section 9.2(c). Any fees or amounts payable under this Section 9.2(b) shall be paid in same day funds no later than: (i) two business days after a termination described in clause (x) of this Section 9.2(b); (ii) concurrently with or prior to the entering into of the definitive agreement for, or the consummation of, such Acquisition Transaction, in the case of a termination described in clause (y) of this Section 9.2(b); or (iii) concurrently with or prior to a termination described in clause (z) of this Section 9.2(b).
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof If Parent shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating have terminated this Agreement pursuant to Section 9.1(c)(iSections 9.1(d)(i), 9.1(d)(ii) hereofor 9.1(f), then, in any of such case cases, the Company shall pay to an account designated by MergerCoParent as liquidated damages and not as a penalty, three million dollars ($3,000,000). Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof Such liquidated damage amount shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesno later than two business days after such termination.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Micro Bio Medics Inc), Merger Agreement (Schein Henry Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the termination of If this Agreement is validly terminated pursuant to Section 9.1 hereof11.01, this Agreement shall forthwith become null and void and have of no effect, without any effect with no liability on the part of any party hereto or its affiliateshereto, trustees, directors, officers or stockholders and all except that termination of this Agreement shall be without prejudice to any rights and obligations any party may have hereunder against any other party for an intentional breach of any party hereto shall cease except for the agreements covenant, agreement or obligation contained in Section 7.4or made pursuant to this Agreement or any knowing breach of any representation or warranty contained in or referred to in this Agreement or in any schedule, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing exhibit or certificate delivered hereunder. The agreements contained in this Section 9.2(a) 11.02 and 90 Sections 8.11, 12.03, 12.05, 12.06, 12.07, 12.08, 12.11 and 12.14 shall relieve any party from liability for any fraud or willful breach of this Agreementsurvive the termination hereof.
(b) The In the event that this Agreement is terminated by the Company pursuant to Section 11.01(g) or by Parent pursuant to Section 11.01(h), then the Company shall pay the Termination Fee to MergerCo an amount Parent prior to or concurrently with such termination, in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result case of termination by the Company having wilfully breached its obligations under pursuant to Section 7.1(a)(i) or Section 7.1(a)(iii11.01(g), or (X) within two days of receipt by the Company terminates this Agreement of notice from Parent of such termination, in the case of termination by Parent pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i11.01(h), if, prior such Termination Fee to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingbe payable, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2each case, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCoParent. Any payment of In the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of event this Agreement is terminated by Parent pursuant to Section 9.1(c)(i11.01(d), 11.01(e) or Section 9.1(d)(ii11.01(i) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek after the date hereof and prior to obtain any recovery such termination, there shall have been made and publicly announced or judgment against publicly communicated to the Company's shareholders a Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, Acquisition Proposal (which shall not have been withdrawn in good faith) and (B) be entitled concurrently with or within twelve months of the date of such termination, the Company enters into a definitive agreement with respect to seek a Company Acquisition Proposal (which is subsequently consummated) or obtain any other damages a Company Acquisition Proposal is consummated, then the Company shall pay to Parent the Termination Fee within two days of any kind, including, without limitation, consequential, indirect or punitive damagesthe consummation of the Company Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Itc Deltacom Inc), Merger Agreement (Itc Deltacom Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Section 8.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto Yahoo!, Purchaser or its affiliatesLaunch, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained (i) as set forth in this Section 9.2(a8.2 and (ii) nothing herein shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company If (i) Yahoo! shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates have terminated this Agreement pursuant to Section 9.1(c)(i) 8.1(e), or (Yii) MergerCo terminates Launch shall have terminated this Agreement pursuant to Section 9.1(d)(ii8.1(f), then Launch shall pay to Yahoo! a termination fee (the "Termination Fee") or of $480,000. Payment of Termination Fee shall be a condition to the effectiveness of a termination by Launch pursuant to Section 8.1(f). In the case of a termination by Yahoo! pursuant to Section 8.1(e), such Termination Fee shall be due and payable promptly, but in no event later than two business days after such termination.
(Zc) either If each of the Company or MergerCo terminates following shall occur: (i) Yahoo! shall have terminated this Agreement pursuant to Section 9.1(b)(i8.1(c) (but only if such termination is the result of the failure of the Minimum Condition or the occurrence of an event set forth in subsections (d) or (f) of Annex I hereto), if, ; (ii) following the date hereof but prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been made directly commenced, publicly proposed or communicated to the Company's stockholders generally Launch or any person its stockholders; and (iii) within nine months following such termination of this Agreement, Launch shall have publicly announced entered into an Acquisition Agreement with respect to an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such consummated the transaction contemplated by an Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding Proposal, then immediately upon the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment occurrence of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by first to occur of the Company to MergerCo by wire transfer of immediately available funds (i) events identified in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in Launch shall pay to Yahoo! the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesTermination Fee.
(d) Notwithstanding anything All amounts payable under this Section 8.2 shall be payable by cashier's check or wire transfer to the contrary such account as Yahoo! may designate in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect writing to Launch. Launch shall not withhold any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to United States withholding taxes on any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under this Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages8.2.
Appears in 2 contracts
Sources: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement by either or both of Parent and the Company pursuant to Section 9.1 hereof9.1, this Agreement shall forthwith terminate and become null and void and have no effect, without any and there shall be no liability or obligation arising under this Agreement on the part of the Acquirer Parties, the Company or any party hereto of their respective direct or its affiliatesindirect, trusteesformer, current or future general or limited partners, stockholders, managers, members, directors, officers officers, Affiliates, employees, agents, other Representatives or stockholders and all rights and obligations of any party hereto shall cease assignees, in each case except for the agreements contained as set forth in Section 7.49.3(b), and the third sentence transactions contemplated by this Agreement shall be abandoned without further action by the parties to this Agreement, other than Section 7.3(b) (Confidentiality), this Section 9.3 and Article X, which provisions shall survive the termination of Section 7.16 and Articles 9 and 10; provided, however, that nothing this Agreement. Notwithstanding anything to the contrary contained in this Section 9.2(a) Agreement, neither the Acquirer Parties nor the Company shall relieve be relieved or released from any party from liability for any liabilities or damages arising out of its fraud or willful breach material and Willful Breach of any provision of this Agreement.
(b) The Company shall pay to MergerCo Parent (x) in the cases of clauses (i) or (ii) below, an amount in cash equal to (A) $5,000,000 45,000,000 (the "Liquidated Amount"“Company Termination Fee”), plus and (By) in the Parent/MergerCo case of clause (iii) below, an amount equal to that required to reimburse Parent and its Affiliates for all of their documented out-of-pocket Expenses in an amount not to exceed $15,000,000 (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii“Acquirer Expenses”), or if:
(Xi) the Company Parent terminates this Agreement pursuant to Section 9.1(c)(i9.1(e) or Section 9.1(f);
(ii) (A) prior to the Company Stockholders Meeting, a Company Takeover Proposal shall have been publicly made to the Company or otherwise communicated in writing to the Company’s senior management or the Company Board and not expressly withdrawn, (B) this Agreement is terminated pursuant to (I) Section 9.1(b)(iii), (II) Section 9.1(d) or (YIII) MergerCo terminates Section 9.1(b)(i), provided that in the case of (II) or (III), the Company Stockholder Approval shall not have been obtained prior to such termination, and (C) within 12 months of such termination, the Company enters into a definitive Contract to consummate a Company Takeover Proposal or a Company Takeover Proposal is consummated; provided, however, that for purposes of this Section 9.3(b)(ii) only, each reference to “20%” in the definition of Company Takeover Proposal shall be deemed to be a reference to “50%”, and provided further that in the case of (B)(I), in the event that the Company reimburses Parent and its Affiliates for any Acquirer Expenses pursuant to Section 9.3(b)(y), the Company shall pay to Parent only an amount equal to the difference between the Company Termination Fee and any Acquirer Expenses paid by the Company; or
(iii) this Agreement is terminated pursuant to Section 9.1(b)(iii), except to the extent Parent would have been permitted to terminate this Agreement pursuant to a provision that would give rise to a Company Termination Fee in accordance with Section 9.1(d)(ii9.3(b)(i) or (Z) either the Company or MergerCo terminates Section 9.3(b)(ii), in which case this Agreement shall be deemed terminated pursuant to such provision. Any Company Termination Fee or other amounts due under this Section 9.1(b)(i), if, prior to 9.3(b) shall be paid by wire transfer of same-day funds (x) in the Special Meeting, case of clause (i) an Acquisition Proposal shall have been made directly to above, on the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months Business Day immediately following the date of such termination of this Agreement and (y) in the Company and case of clause (ii) above, on the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect theretodate of the first to occur of the events referred to in clause (ii)(C) above. Notwithstanding the foregoing, in In no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than onceone Company Termination Fee. For purposes of The Company acknowledges and agrees that the agreements contained in this Section 9.29.3(b) are an integral part of the transactions contemplated by this Agreement, "Parent/MergerCo Expenses" that, without these agreements, Parent would not enter into this Agreement, and that, any amount payable pursuant to this Section 9.3(b) does not constitute a penalty. Accordingly, if the Company fails promptly to pay the amount due pursuant to Section 9.3(b), and, in order to obtain such payment, Parent commences a suit, action or other proceeding that results in a Judgment in its favor for such payment, the Company shall be an amount equal pay to the reasonable out-of-pocket Parent its costs A-29 120 and expenses incurred by Parent (including reasonable attorneys’ fees and MergerCo expenses) in connection with this Agreement and the Transactionssuch suit, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements action or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCoproceeding. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, the Parties hereby acknowledge that in the event that the Company Termination Fee becomes payable and is paid by the Company and accepted by Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to this Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof9.3(b), the payment of the Liquidated Amount Company Termination Fee shall be Parent’s and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the Merger Sub’s sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual for monetary damages with respect to the foregoing upon any termination of under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Section 8.1 hereof, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4Parent, the third sentence of Section 7.16 Purchaser or the Company, except (i) as set forth in Sections 6.5(a) and Articles 9 9.3 hereof and 10; provided, however, that (ii) nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company If (i) Parent shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates have terminated this Agreement pursuant to Section 9.1(c)(i8.1(h), (ii) or (Y) MergerCo terminates Parent shall have terminated this Agreement pursuant to Section 9.1(d)(ii8.1(g) or and within twelve (Z12) either months following the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) date of any such termination an Acquisition Proposal shall have been made directly to consummated or (iii) the Company's stockholders generally or any person Company shall have publicly announced an Acquisition Proposal or solicited proxies or consents terminated this Agreement pursuant to Section 8.1(f)(ii), then in opposition to either such case the Merger and (ii) within nine (9) months immediately following the date of Company shall pay simultaneously with such termination the Company if pursuant to Section 8.1(f)(ii) and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingpromptly, but in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more later than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) two business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement termination or event if pursuant to Section 9.1(c)(i8.1(h) hereofor 8.1(g), to Parent a termination fee (the "Termination Fee") of $2,000,000 plus an amount, not in any such case excess of $1,500,000, --------------- equal to the Purchaser's actual and reasonably documented reasonable out-of- pocket expenses to third parties unaffiliated with the Purchaser, other than those expenses incurred by Parent and the Purchasers pursuant to an account designated arrangement between Fremont Advisors, LLC and Fremont Partners, L.P. for provision of certain legal and tax services on an hourly basis at customary rates, incurred by MergerCo. Any payment Parent and the Purchaser in connection with the Offer, the Merger, this Agreement and the consummation of the Parent/MergerCo Expenses required by Section 9.2(b) hereof transactions contemplated hereby, which amount shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to such account as Parent may designate in writing to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement Company. No fee or reimbursement shall be paid pursuant to this Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which 8.2 if either Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) Purchaser shall be in full and complete satisfaction material breach of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b)its obligations hereunder, Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall after affording Parent or MergerCo (A) seek the Purchaser a forty- day period after notice in which to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagescure such breach.
Appears in 2 contracts
Sources: Merger Agreement (Saffron Acquisition Corp), Merger Agreement (Sun Coast Industries Inc /De/)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either TriCo or North Valley as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effecteffect except Sections 6.2(b), without 8.2, 9.3, 9.4, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10 and 9.12 shall survive any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach termination of this Agreement.
(b) The Company shall pay In the event that this Agreement is terminated:
(i) by TriCo pursuant to MergerCo an amount in cash equal to Section 8.1(f)(ii); or
(ii) (A) $5,000,000 by (1) TriCo or North Valley pursuant to Section 8.1(c) or Section 8.1(d)(ii) (in the "Liquidated Amount"case of Section 8.1(c), plus (B) only if at such time North Valley has failed to hold the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result North Valley Shareholder Meeting and TriCo has obtained the TriCo Requisite Vote and is not in breach of the Company having wilfully breached its obligations under Section 7.1(a)(i6.3) or Section 7.1(a)(iii), or (X2) the Company terminates this Agreement TriCo pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(f)(i), if, prior to the Special Meeting, and (iB) an a bona fide Acquisition Proposal shall have been made directly publicly disclosed and not withdrawn prior to the Company's stockholders generally North Valley Shareholder Meeting (in the case of termination pursuant to Section 8.1(d)(ii)), prior to the termination date (in the case of termination pursuant to Section 8.1(c)) or prior to the breach giving rise to the right of termination (in the case of termination pursuant to Section 8.1(f)(i)), and (C) within fifteen (15) months after the termination of this Agreement North Valley or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter its Subsidiaries enters into a definitive agreement with respect thereto. Notwithstanding to, or consummates the foregoingtransactions contemplated by, any Alternative Transaction, then North Valley shall pay TriCo a fee, in no event shall immediately available funds, in the Company be obligated to pay amount of $7,600,000 (the Liquidated Amount “North Valley Termination Fee”) (x) not later than two (2) Business Days following such termination, in the case of a termination described in clause (b)(i) above, or (y) at the Parent/MergerCo Expenses more than once. For purposes time of this Section 9.2the earlier of the entry into a definitive agreement with respect to, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-or consummation of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed transaction contemplated by the Company shall not exceed $1,000,000Alternative Transaction described in clause (b)(ii)(C) above, in the event of a termination under the circumstances described in clause (b)(ii) above.
(c) Any payment of In the Liquidated Amount required event that this Agreement is terminated by TriCo or North Valley pursuant to Section 9.2(b8.1(c) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds or Section 8.1(d)(i) (i) in the case of clause (W) or (Y) thereofSection 8.1(c), within three (3) business days after only if at such time TriCo has failed to hold the date TriCo Shareholder Meeting and North Valley has obtained the North Valley Shareholder Approval and is not in breach of terminationits obligations under Sections 6.1, (ii) 6.2 and 6.3), then TriCo shall pay North Valley a fee, in immediately available funds, in the case amount of clause $3,800,000 (Zthe “TriCo Termination Fee”) thereof, within three not later than two (32) business days after Business Days following such termination. In no event shall TriCo be required to pay the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesTriCo Termination Fee on more than one occasion.
(d) Notwithstanding anything to North Valley and TriCo acknowledge that the contrary agreements contained in Sections 8.2(b) and 8.2(c) are an integral part of the transactions contemplated by this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of without these agreements, neither party would enter into this Agreement Agreement. The amounts payable by North Valley pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i8.2(b) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are amounts payable in accordance with by TriCo pursuant to Section 9.2(b8.2(c) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall hereof constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions not a penalty and shall constitute be the sole and exclusive remedy available to Parent of North Valley and MergerCo. The parties hereto expressly acknowledge and agree thatTriCo, respectively, in light the event of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) on the bases specified in such sections (except for any liabilities or Section 9.1(d)(ii) hereof, damages arising out of fraud or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount willful and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason material breach of any such proposed or actual termination provisions of this Agreement pursuant Agreement). In the event that North Valley or TriCo fails to pay when due any amounts payable under this Section 9.1(c)(i8.2, then (1) or Section 9.1(d)(iithe party who fails to pay such amounts shall reimburse the other party hereto for all costs and expenses (including disbursements and reasonable fees of counsel) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof incurred in circumstances where connection with the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofcollection of such overdue amount, and (ii2) the party who fails to pay such amounts shall be in full and complete satisfaction of any and all damages arising pay to the other party hereto interest on such overdue amount (for the period commencing as a result of the foregoing. Except for nonpayment date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the prime rate published in the New York edition of The Wall Street Journal on the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant date such payment was required to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmade.
Appears in 2 contracts
Sources: Merger Agreement (North Valley Bancorp), Merger Agreement (Trico Bancshares /)
Effect of Termination. (ai) Subject to Sections 9.2(bExcept as provided in clauses (ii) and or (diii) hereof, in the event of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"8(b), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company any Party terminates this Agreement pursuant to Section 9.1(c)(i8(a) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) above, all rights and obligations of the Parties hereunder shall terminate without any liability of either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior Party to the Special Meeting, other Party (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or except for any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents liability of any Party then in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"breach); provided, however, that the aggregate amount provisions of all Parent/MergerCo Expenses to be reimbursed by the Company Confidentiality Agreement, this Section 8(b) and Section 9 below shall not exceed $1,000,000survive any such termination.
(cii) Any payment of the Liquidated Amount required If this Agreement is terminated (A) by Info pursuant to Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W8(a)(vi)(B) or (YB) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement by IBS pursuant to Section 9.1(c)(i8(a)(v)(A), or (C) hereof, any Person makes an Info Acquisition Proposal that remains in any such case effect on the date 60 days prior to an account designated by MergerCo. Any payment the Outside Date and the Requisite Stockholder Approval of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company Info Stockholders is not obtained prior to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i8(a)(ii), then, within 60 days after such termination, Info shall pay IBS the sum of $2,000,000 in immediately available funds. Payment of such amount shall be the exclusive remedy in the event of termination of this Agreement (x) under the circumstances set forth in Section 8(b)(ii)(B) or Section 9.1(d)(ii8(b)(ii)(C) hereof, if the Info Acquisition Proposal giving rise to such termination is an Info Superior Proposal and Info has complied with the provisions of Section 6(h) in connection therewith or (y) under the circumstances set forth in Section 9.1(b)(i8(b)(ii)(A).
(iii) If this Agreement is terminated (A) by IBS pursuant to Section 8(a)(v)(B) or (B) by Info pursuant to Section 9.1(d)(i8(a)(vi)(A) hereof or (C) any person makes an IBS Acquisition Proposal that remains in circumstances where effect on the Liquidated Amount date 60 days prior to the Outside Date and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment Requisite Stockholder Approval of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect IBS Stockholders is not obtained prior to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof8(a)(ii), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof then, within 60 days after such termination, IBS shall pay Info the sum of $2,000,000 in circumstances where immediately available funds. Payment of such amount shall be the Liquidated Amount and exclusive remedy in the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate event of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i(x) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in under the circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i8(b)(iii)(B) or Section 9.1(d)(ii8(b)(iii)(C) hereof, if the IBS Acquisition Proposal giving rise to such termination is an IBS Superior Proposal and IBS has complied with the provisions of Section 6(i) in connection therewith or (y) under the circumstances set forth in Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages8(b)(iii)(A).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Ibs Interactive Inc), Agreement and Plan of Reorganization (Infonautics Inc)
Effect of Termination. (a) Subject Upon the occurrence of a Termination Date as to Sections 9.2(ba Party, this Agreement (except as set forth in subsection 12.05(b) of this Agreement, below) shall be of no further force and effect as to such Party, and each Party subject to such termination shall be released from its commitments, undertakings, and agreements under or related to this Agreement; any and all tenders, consents, or votes tendered by such Party shall be (dor automatically shall be deemed) hereofwithdrawn; and such Party shall have the rights and remedies that it would have had, in had it not entered into this Agreement, and shall be entitled to take any and all actions, whether with respect to the event Recapitalization Transactions or otherwise, that it would have been entitled to take had it not entered into this Agreement, including with respect to any and all Claims or Causes of Action; provided, for the avoidance of doubt, the termination of this Agreement pursuant as to Section 9.1 hereof, this Agreement any Party shall forthwith become null and void and have no effect, without any liability on the part not relieve such Party of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this AgreementAgreement prior to such termination.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent (a) Section 1.01 of this Agreement, Section 6.01(h) of this Agreement, Section 9 of this Agreement (including the Release and MergerCo hereto expressly acknowledge the ongoing obligations contained in Section 9.05 and agree thatSection 9.06 of this Agreement), Section 12.05 of this Agreement, and Section 14 of this Agreement shall survive in the event that the Termination Date occurs due to the occurrence of the Effective Date pursuant to Section 12.04(a) of this Agreement, and (b) Section 1.01 of this Agreement, Section 6.01(h) of this Agreement (solely with respect to any termination Creditor Fees and Expenses through the applicable Termination Date), Section 12.05 of this Agreement, and Sections 14.01 through 14.22 of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where shall survive the Liquidated Amount and occurrence of the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofTermination Date on any account. For the avoidance of doubt, the payment Release and any of the Liquidated Amount ongoing obligations in Section 9 of this Agreement shall cease and be of no further force or effect whatsoever if this Agreement terminates or is terminated or a Termination Date occurs as to any or all Parties for any reason that is not the Parent/MergerCo Expenses shall constitute liquidated damages occurrence of the Effective Date as provided in Section 12.04(a) of this Agreement; provided, that if this Agreement is terminated only with respect to any claim for damages certain parties, such termination shall not affect the applicability or any force of Section 9 of this Agreement with respect to other claim which Parent or MergerCo would otherwise parties.
(c) Nothing in this Agreement shall be entitled to assert against the construed as prohibiting a Company Party or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon Consenting Stakeholders from contesting whether any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable is in accordance with its terms or to seek enforcement of any rights under this Agreement that arose or existed before a Termination Date. Except as expressly provided in this Agreement (including, for the avoidance of doubt, Section 9.2(b) hereof9 of this Agreement), the rights to payment under Section 9.2(b): nothing in this Agreement is intended to, or does, in any manner waive, limit, impair, or restrict (i) constitute a reasonable estimate of the damages that will be suffered by reason any right of any such proposed Company Party or actual termination the ability of any Company Party to protect and reserve its rights (including rights under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofAgreement), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount remedies, and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofinterests, including its claims against any Consenting Stakeholder, and (ii) shall be in full and complete satisfaction any right of any Consenting Stakeholder, or the ability of any Consenting Stakeholder, to protect and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(bpreserve its rights (including rights under this Agreement), Parent remedies, and MergerCo hereby agree thatinterests, upon including its claims against any termination of Company Party, Consenting Stakeholder. Nothing in this Section 12.05 shall restrict any Company Party’s right to terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b12.02(b) hereof, in no event shall Parent or MergerCo of this Agreement.
(Ad) seek to obtain any recovery or judgment against To the extent the Term Loan Lender Participation Threshold Condition Precedent is satisfied and the Agreement is subsequently terminated (a) by the Company Parties for any reason other than pursuant to Section 12.02(a) of this Agreement due to the material breach of this Agreement by one or any more Consenting Term Loan Lenders, (b) pursuant to Section 12.01(m) of this Agreement or Section 12.02(f) of this Agreement, above, or (c) otherwise because the Noteholder Participation Threshold Condition Precedent is not satisfied, the Company Parties shall pay to each Initial Consenting Term Loan Lender the Initial Consenting Term Loan Lenders Break Fee. Notwithstanding anything in this Agreement to the contrary, the Initial Consenting Term Loan Lenders Break Fee shall be earned in full as of the Agreement Effective Date, shall not be treated as a payment on any Term Loan, and shall be due and payable subject solely to the occurrence and within one (1) Business Day of the date of such termination, without setoff, deduction or withholding for any taxes or otherwise.
(e) To the extent the Noteholder Participation Threshold Condition Precedent is satisfied and the Agreement is subsequently terminated (a) by the Company Subsidiaries Parties for any reason other than pursuant to Section 12.02(a) of this Agreement due to the material breach of this Agreement by one or any more Consenting Unsecured Noteholders, (b) pursuant to Section 12.01(m) of their respective assetsthis Agreement or Section 12.02(f) of this Agreement, above, or against (c) otherwise because the Term Loan Lender Participation Threshold Condition Precedent is not satisfied, the Company Parties shall pay to each Initial Consenting Unsecured Noteholder the Initial Consenting Unsecured Noteholders Break Fee. Notwithstanding anything in this Agreement to the contrary, the Initial Consenting Unsecured Noteholders Break Fee shall be earned in full as of the Agreement Effective Date, shall not be treated as a payment on any of their respective directors, officers, employees, partners, managers, members or shareholdersUnsecured Note, and shall be due and payable subject solely to the occurrence and within one (B1) be entitled to seek or obtain any other damages Business Day of any kind, includingthe date of such termination, without limitationsetoff, consequential, indirect deduction or punitive damageswithholding for any taxes or otherwise.
Appears in 2 contracts
Sources: Transaction Support Agreement (Neiman Marcus Group LTD LLC), Transaction Support Agreement
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.that:
(bi) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 a Company Alternative Proposal shall have been publicly proposed or publicly disclosed prior to, and not withdrawn at least ten (the "Liquidated Amount")10) days prior to, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (iB) an Acquisition Proposal shall have been made directly this Agreement is terminated by the Company or Parent pursuant to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger Section 9.2(c) [Required Company Vote], and (iiC) within nine twelve (912) months immediately following after the date of such termination this Agreement is terminated, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding to, or consummates, any Company Alternative Proposal;
(ii) this Agreement is terminated by the foregoingCompany pursuant to Section 9.3(b) [Company Superior Proposal];
(iii) this Agreement is terminated by Parent pursuant to Section 9.4(c) [Company Change in Recommendation];
(iv) this Agreement is terminated by the Company pursuant to Section 9.3(c) [Parent Change in Recommendation];
(v) [intentionally omitted];
(vi) this Agreement is terminated by Parent pursuant to Section 9.4(b) [Parent Superior Proposal];
(vii) this Agreement is terminated by the Parent or the Company pursuant to Section 9.2(d) [Required Parent Vote];
(viii) this Agreement is terminated by the Company or Parent pursuant to Section 9.2(b) [Injunction] with respect to Regulatory Laws; or
(ix) (w) this Agreement is terminated (A) by the Company pursuant to Section 9.3(a) [Breach/Failure to Perform], due to Parent or Merger Sub’s material breach of Section 7.6 [Antitrust] which breach results in the condition set forth in Section 8.1(b) [Antitrust/Competition] being incapable of being satisfied, or (B) by the Company or Parent pursuant to Section 9.2(a) [Termination Date] and as of the Termination Date, (x) one or more of the conditions set forth in Section 8.1(b) [Antitrust/Competition] or Section 8.1(c) [No Injunctions or Restraints] has not been satisfied (including, without limitation, as a result of Parent not agreeing to take or not taking any Antitrust Action in excess of the Detriment Limit, but only, in the case of Section 8.1(c) [Injunctions or Restraints], if the failure to meet such condition is a result of any Regulatory Law) and (y) all of the other conditions set forth in Section 8.1 and Section 8.2 have been satisfied (other than any such conditions which by their nature cannot be satisfied until the Closing Date but subject to such conditions being capable of being satisfied if the Closing Date were the date of termination); provided that for purposes of determining whether the conditions set forth in Section 8.2(a) have been satisfied the definition of “Company Material Adverse Effect” shall be interpreted without taking into account any effect resulting from any Regulatory Law applicable to the Merger or prohibition under or in respect of any Regulatory Law applicable to the Merger; then (1) in any such event under clause (i), (ii) or (iii) of this Section 9.5(a), the Company shall pay to Parent a termination fee of $1 billion in cash (the “Company Termination Fee”), less the aggregate amount of any of Parent’s Expenses previously reimbursed pursuant to the next paragraph, it being understood that in no event shall the Company be obligated required to pay the Liquidated Amount or the Parent/MergerCo Expenses Company Termination Fee on more than once. For purposes one occasion, and (2) in any such event under clause (iv), (vi) or (vii) of this Section 9.29.5(a), "Parent/MergerCo Expenses" Parent shall be an amount equal pay to the reasonable out-of-pocket costs A-29 120 Company a termination fee of $1.5 billion in cash (the “Parent Termination Fee”), and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of such event under clause (Wviii) or (Yix) thereof, within three (3of this Section 9.5(a) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior Parent shall pay to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer a termination fee of immediately available funds promptly following receipt by $3.5 billion in cash (the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b“Antitrust Termination Fee”), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, it being understood that in no event shall Parent be required to pay the Parent Termination Fee or MergerCo the Antitrust Termination Fee on more than one occasion or to pay more than one of the Parent Termination Fee or the Antitrust Termination Fee. In the event that a Company Alternative Proposal shall have been publicly proposed or publicly disclosed prior to, and not withdrawn at least ten (A10) seek to obtain any recovery or judgment against days prior to, the Company Special Meeting and thereafter this Agreement is terminated by the Company or any Parent pursuant to Section 9.2(c) [Required Company Vote] and no Company Termination Fee is yet payable in respect thereof pursuant to the preceding sentence, then the Company shall pay to Parent all of the Company Subsidiaries or any Expenses of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, Parent and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesMerger Sub.
Appears in 2 contracts
Sources: Merger Agreement (Halliburton Co), Merger Agreement (Baker Hughes Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the a termination of this Agreement pursuant to Section 9.1 hereofby either Seller or Buyer as provided above, this Agreement there shall forthwith become null and void and have be no effect, without any liability on the part of any party hereto either Buyer or its affiliatesSeller, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence liability arising out of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful a breach of this Agreement.
(b) The Company . ARTICLES 1, 8, and 9, Section 4.6 and this ARTICLE 7 shall pay survive the termination of this Agreement. In the event of a termination of this Agreement, each of the parties hereto shall be responsible for its own expenses and those of its advisors, and no party hereto, nor any of their Affiliates, shall be responsible to MergerCo an amount in cash equal the other parties, or any of their Affiliates, for any expenses relating to this Agreement or any other Transaction Document as the transaction contemplated thereby. If (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo Seller or Buyer terminates this Agreement under Section 9.1(d)(i7.1(b)(ii) as a result (and Seller is not in material breach of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iiithis Agreement immediately prior to such termination), (B) Seller or (X) the Company Buyer terminates this Agreement pursuant to under Section 9.1(c)(i7.1(b)(iii) and any of the conditions set forth in Section 5.1(a), (b) or (Yc) MergerCo have not been satisfied by the Drop Dead Date solely because the waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act and foreign competition laws shall not have expired or been earlier terminated (and Seller is not in material breach of this Agreement immediately prior to such termination) or (C) Seller terminates this Agreement pursuant to under Section 9.1(d)(ii7.1(c) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents and Seller is not in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions material breach of this Agreement and any other agreements or other documents relating immediately prior to the Transactionssuch termination), arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions Buyer shall pay Seller $10,000,000 (collectively, the "Parent/MergerCo ExpensesBreak Fee"); provided, however, that the aggregate amount ) within five (5) days of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of such termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent the Break Fee shall, if paid to Seller, be the sole and MergerCo hereto expressly acknowledge exclusive remedy of Seller against Buyer and agree thatits former, with respect to current or future stockholders, managers, members, directors, officers, Affiliates or agents for any Damages suffered as a result of a breach or termination of or otherwise under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofAgreement, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the upon payment of the Liquidated Amount and the Parent/MergerCo Expenses Break Fee, neither Buyer nor its former, current or future stockholders, managers, members, directors, officers, Affiliates or agents shall constitute liquidated damages with respect have any further liability or obligation to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries Seller or any of their respective assetsstockholders, or against any of their respective managers, members, directors, officers, employeesAffiliates or agents arising under this Agreement; provided, partnershowever, managersreceipt of the Break Fee by Seller shall not diminish any rights or obligations of any party under any other agreement between the parties including the Confidentiality Agreement, members or shareholders, with respect to this the Transition Services Agreement and the Transactions Manufacturing and Services Agreement. If Buyer shall constitute fail to timely pay the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement Break Fee pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) the terms hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofand, in no event shall Parent or MergerCo (A) seek order to obtain any recovery or such payment, Seller makes a claim that results in a judgment against Buyer, Buyer shall promptly reimburse Seller for its reasonable costs and expenses (including its reasonable attorneys' fees and expenses) incurred in connection with such suit, together with interest on the Company or any Break Fee at the prime rate of ▇▇▇▇▇ Fargo Bank, N.A. in effect on the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) date such payment was required to be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmade.
Appears in 2 contracts
Sources: Asset Purchase Agreement (NCR Corp), Asset Purchase Agreement (NCR Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Sections 8.1 or 8.3, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto or its affiliatesParent, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4Purchaser, the third sentence Company or any of Section 7.16 their respective affiliates except (i) as set forth in Sections 6.5(a), 8.2, 9.3, 9.4, 9.5, 9.7, 9.9, 9.10 and Articles 9 9.12 and 10; provided, however, that (ii) nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of representations and warranties, or material breach of any covenant, contained in this Agreement.
(b) The Company If (i) Parent shall pay have terminated this Agreement pursuant to MergerCo an amount in cash equal to clause (Ai) $5,000,000 (the "Liquidated Amount"of Section 8.1(c), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (Xii) the Company terminates shall have terminated this Agreement pursuant to Section 9.1(c)(i8.1(e) or (Yiii)(x) MergerCo terminates Parent shall have terminated this Agreement pursuant to Section 9.1(d)(iiSections 8.1(d) and at the time of such termination the condition set forth in clause (j) of Annex I shall not have been satisfied or 8.1(g) and (Zy) either following the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, date hereof but prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been publicly made directly to and not withdrawn (which Acquisition Proposal provides the Company's stockholders generally an equal or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to higher price per share than the Merger Offers Price) and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding to such Acquisition Proposal has been entered into within nine months after termination of this Agreement, then the foregoingCompany shall pay to Parent promptly, but in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more later than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) two business days after the date of termination, such termination (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into unless such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement termination is pursuant to Section 9.1(c)(i) hereof8.1(e), in any which case payment shall be a condition to such case termination), a termination fee of $40,570,000 (the "Termination Fee"). Except to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses extent required by Section 9.2(b) hereof shall be payable by applicable law, the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesshall not withhold any withholding taxes on any payment under this Section 8.2.
(dc) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and Purchaser agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, that the payment of the Liquidated Amount set forth in Section 8.2(b), if such payment is payable and the Parent/MergerCo Expenses is actually paid, shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to of Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of Purchaser upon the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in the circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable described in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): clauses (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (Biii) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesSection 8.2.
Appears in 2 contracts
Sources: Merger Agreement (Orbitz Inc), Merger Agreement (Cendant Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of that Chancellor or Capstar terminates this Agreement pursuant to as provided in Section 9.1 hereof8.1(a), 8.1(b)(iii) or 8.1(b)(iv), this Agreement shall forthwith become null and void and have no effect, without any liability or obligation on the part of any party hereto Chancellor or its affiliatesCapstar, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for other than the agreements contained in Section 7.4, the third last sentence of Section 7.16 5.3 and Articles 9 Sections 2.10, 3.7, 8.2 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement11.2.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates event that this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement is terminated by Chancellor pursuant to Section 9.1(c)(i8.1(b)(v) or (Y8.1(b)(vi) MergerCo terminates this Agreement or by Capstar or Chancellor pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal Capstar shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other promptly reimburse Chancellor for all substantiated out-of-pocket costs and expenses incurred by Parent and MergerCo them in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectivelytransactions contemplated hereby, including, without limitation, costs and expenses of accountants, attorneys and financial advisors. In the "Parent/MergerCo Expenses"event that this Agreement is terminated by Capstar pursuant to Section 8.1(b)(v) or by Chancellor or Capstar pursuant to Section 8.1(b)(ii); provided, howeverChancellor shall promptly reimburse Capstar for all substantiated out-of-pocket costs and expenses incurred by it in connection with this Agreement and the transactions contemplated hereby, that the aggregate amount including, without limitation, costs and expenses of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000accountants, attorneys and financial advisors.
(c) Any payment of In the Liquidated Amount required event that this Agreement is terminated by Capstar pursuant to Section 9.2(b8.1(b)(vii) hereof shall be payable or by Chancellor pursuant to Section 8.1(b)(viii), the Company party electing to MergerCo terminate this Agreement shall, concurrently with such termination, pay to the non-terminating party (by wire transfer of immediately available funds funds) an amount of $50,000,000 in cash (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses"Termination Fee").
(d) Notwithstanding anything This Agreement shall not be deemed to have been validly terminated until all payments contemplated by Section 8.2(b) and 8.2(c) shall have been made in full. In the contrary event of a termination pursuant to Sections 8.1(b)(i), 8.1(b)(ii), 8.1(b)(v) or 8.1(b)(vi), the reimbursement of expenses by the breaching party pursuant to Section 8.2(b) shall be the parties sole remedy unless the termination resulted from a willful material breach of the representations, warranties, covenants or other agreements in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to in which case the non-breaching party may seek damages or any other appropriate remedy at law or in equity. In the event of a termination of this Agreement pursuant to Section 9.1(c)(iSections 8.1(b)(vii) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof8.1(b)(viii), the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages Termination Fee by Capstar or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assetsChancellor, or against any of their respective directorsas applicable, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii8.2(c) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesnon-terminating party's sole remedy.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Capstar Broadcasting Corp), Agreement and Plan of Merger (Chancellor Media Corp of Los Angeles)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the Any termination of this Agreement pursuant to Section 9.1 hereofSections 7.1 or 7.2 hereof shall be effective immediately upon the delivery of written notice of the terminating party to the other party or parties hereto, as applicable. In the event of termination of this Agreement by either the Company or Parent as provided in Sections 7.1 and 7.2, this Agreement shall forthwith become null and void and have there shall thereafter be no effect, without any liability or obligation on the part of any party hereto Parent, Merger Sub or its affiliates, trustees, directors, the Company or their respective officers or stockholders directors hereunder except with respect to Section 5.2(c), Section 5.8, Section 5.10, Section 5.16, this Section 7.3 and all rights and obligations Article VIII, each of any party hereto which shall cease except for survive the agreements contained in Section 7.4termination of this Agreement, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in the termination of this Section 9.2(a) Agreement shall not relieve any party from any liability for any fraud or willful intentional breach of any covenant or agreement set forth in, or fraud in connection with, or knowing breach of any representation or warranty in this Agreement occurring prior to termination. In addition to the foregoing, no termination of this Agreement shall affect the obligations of the parties hereto set forth in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement in accordance with their terms.
(b) The Company shall pay to MergerCo an Parent (by wire transfer of immediately available funds) a fee in the amount in cash equal to (A) of $5,000,000 10,179,000 (the "Liquidated Amount"“Termination Fee”) if:
(i) this Agreement is terminated by Parent pursuant to Section 7.1(c)(i), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under 7.1(c)(ii), Section 7.1(a)(i7.1(c)(iii) or Section 7.1(a)(iii), 7.1(c)(iv) or (X) by the Company terminates this Agreement pursuant to Section 9.1(c)(i7.1(d)(i), with such fee to be paid under this Section 7.3(b)(i) or concurrently with any termination by the Company and within two (Y2) MergerCo terminates Business Days following any termination by Parent, or
(ii) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(d)(ii7.1(b) or (Z) either the Company or MergerCo terminates this Agreement by Parent pursuant to Section 9.1(b)(i), if, 7.1(c)(v) or Section 7.1(c)(vi) and (x) prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iiy) within nine (9) 12 months immediately following the date of such termination termination, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter entered into a definitive agreement with respect thereto. Notwithstanding the foregoingto, in no event shall the Company recommended to its shareholders, or consummated, an Acquisition Proposal, with such fee to be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of paid under this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions 7.3(b)(ii) within two (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c2) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date Business Days of entering into such definitive agreement, and (iii) in the case of clause (X) thereofmaking such recommendation, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any or consummating such case to an account designated by MergerCotransaction. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination For purposes of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof7.3(b), the payment of term “Acquisition Proposal” shall have the Liquidated Amount and same meaning as the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assetsterm “Acquisition Proposal” set forth in Annex A, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): except that (i) constitute all references to fifteen percent (15%) shall be deemed to be “a reasonable estimate majority” for purposes of the damages that will be suffered by reason definition of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, “Acquisition Proposal” and (ii) the reference to eighty-five percent (85%) therein shall be in full and complete satisfaction of any and all damages arising as deemed “a result of the foregoing. Except majority” for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination purposes of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any definition of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesan “Acquisition Proposal”.
Appears in 2 contracts
Sources: Merger Agreement (Cognos Inc), Merger Agreement (Applix Inc /Ma/)
Effect of Termination. (a) Subject If this Agreement is terminated (i) by the Company or Parent pursuant to Sections 9.2(bclause (i) or (ii) of Section 8.2 or clause (iii) of section 8.4 and (dA) hereof, (1) in the event case of a termination pursuant to clause (i) of Section 8.2 or clause (iii) of Section 8.4, such termination results from the breach by the Company in a material respect of any of its material agreements or covenants set forth in this Agreement and at the time of such breach, any person shall have made a Company Acquisition Proposal that had become public and then remained pending or shall have publicly announced and not withdrawn an intention (whether or not conditional) to make a Company Acquisition Proposal, or (2) in the case of a termination pursuant to clause (ii) of Section 8.2, at the time of the termination of this Agreement pursuant Shareholders' Meeting, any person shall have made a Company Acquisition Proposal that had become public and then remained pending or shall have publicly announced and not withdrawn an intention (whether or not conditional) to Section 9.1 hereofmake a Company Acquisition Proposal, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained (B) Parent was not in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful material breach of this Agreement.
, (b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (BC) the condition set forth in Section 7.1(a) was not satisfied at the time of such termination, (D) the board of directors at no time withdrew, modified or changed, in any manner adverse to Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result , the board's approval or recommendation of the Merger or recommended approval of a Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)Acquisition Proposal, or (X) resolved to do any of the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger foregoing and (iiE) within nine (9) 12 months immediately following the date of after such termination the Company and the party who shall have made such Acquisition Proposal consummate or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together which is ultimately consummated with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection proponent of such Company Acquisition Proposal or with analyzing and structuring the Transactionsanother party pursuant to a proposal which is superior to such proposal, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed ii) by the Company pursuant to clause (i) of Section 8.3 or (iii) by Parent pursuant to clause (i) or (ii) of Section 8.4; then, the Company shall not exceed pay Parent $1,000,000.
70 million (cthe "Termination Amount") Any payment upon termination of the Liquidated Amount required by Section 9.2(b) hereof this Agreement. All payments shall be payable by the Company to MergerCo made in cash by wire transfer of immediately available funds to an account designated by Parent on (i1) in the case of clause (W8.5(a)(ii) or (Y) thereof, within three (3) business days after the date of terminationtermination of this Agreement, (ii2) in the case of clause (Z) thereof8.5(a)(iii), within three (3) the date which is the third business days after day following the date of entering into such definitive agreementtermination of this Agreement if this Agreement is terminated by Parent, and (iii3) in the case of clause 8.5(a)(i), the date on which the Company Acquisition Proposal referred to in clause (XE) thereof, prior to terminating thereof is consummated. The Company acknowledges that the agreements contained in this Section 8.5(a) are an integral part of the transactions contemplated by this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which and not a penalty, and that, without these agreements, Parent or MergerCo would otherwise be entitled to assert against not enter into this Agreement; accordingly, if the Company or fails promptly to pay any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect amount due pursuant to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree thatSection 8.5(a), and, in light of the difficulty of accurately determining actual damages with respect order to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any obtain such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b)payment, Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof commences a suit which results in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or a judgment against the Company or any for the payment set forth in this Section 8.5(a), the Company shall pay to Parent its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on such amount from the date payment was required to be made until the date such payment is actually made at the annual prime lending rate of Citigroup, N.A. in effect from time to time from the date such payment was required to be made, plus one percent (1%).
6. Except as amended by this Amendment, the Original Agreement remains in full force and effect and all of the Company Subsidiaries or any representations and warranties made in the Original Agreement are true and correct as of their respective assets, or against any the date of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesthe Original Agreement as if the Amendment had been in effect on such date.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Dominion Resources Inc /Va/), Agreement and Plan of Merger (Louis Dreyfus Natural Gas Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Company or Parent as provided in Section 9.1 hereof13.1, this Agreement shall forthwith become null and void and neither Company nor Parent nor Merger Sub shall have no effectany further obligation or liability to the other party except under the terms of the Confidentiality Agreement, without any liability on the part Section 8.3, Section 13.1(i) and this Section 13.2, each of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto which shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10survive such termination; provided, however, that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud willful and material breach of the warranties and representations made by it, or willful breach and material failure in performance of this Agreementany of its covenants, agreements or obligations hereunder.
(b) The Company shall pay to MergerCo an amount in cash equal to If:
(Ai) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo Parent terminates this Agreement under pursuant to Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii13.1(h), or ; or
(Xii) the Company terminates this Agreement pursuant to Section 9.1(c)(i13.1(i); or
(iii) (A) either Parent or (Y) MergerCo Company terminates this Agreement pursuant to Section 9.1(d)(ii13.1(b), and (B) or (Z) either at any time after the date of this Agreement and prior to the Company Stockholders’ Meeting, an offer or MergerCo proposal for a Competing Transaction was made directly to the stockholders or to the Board of Directors of Company or became publicly known, or any Person (other than Parent and its Affiliates) publicly announced an intention (whether or not conditional) to make an offer or proposal for a Competing Transaction, and (C) Company enters into an agreement for, or consummates any Competing Transaction with, any Person within 12 months after such termination of this Agreement; or
(iv) (A) Parent terminates this Agreement pursuant to Section 9.1(b)(i13.1(d), if, and (B) at any time after the date of this Agreement and prior to the Special Meetingsuch breach, (i) an Acquisition Proposal shall have been offer or proposal for a Competing Transaction was made directly to the Company's stockholders generally or to the Board of Directors of Company or became publicly known, or any person shall have Person (other than Parent and its Affiliates) publicly announced an Acquisition Proposal intention (whether or solicited proxies not conditional) to make an offer or consents in opposition to the Merger proposal for a Competing Transaction, and (iiC) Company enters into an agreement for, or consummates any Competing Transaction with, any Person within nine 12 months after such termination of this Agreement; or
(9v) months immediately following (A) Parent terminates this Agreement pursuant to Section 13.1(e) or (g) or Company terminates this Agreement pursuant to Section 13.1(f), and the Company Stockholders’ Meeting shall not have been held prior to such termination, and (B) at any time after the date of this Agreement and prior to such termination, an offer or proposal for a Competing Transaction was made directly to the stockholders or to the Board of Directors of Company or became publicly known, or any Person (other than Parent and its Affiliates) publicly announced an intention (whether or not conditional) to make an offer or proposal for a Competing Transaction, and (C) Company enters into an agreement for or consummates any Competing Transaction within 12 months after such termination of this Agreement; then Company shall pay to Parent, by wire transfer of immediately available funds, Twenty Million Dollars ($20,000,000) (the Company “Termination Fee”), (x) in the case Section 13.2(b)(i), no later than two (2) Business Days following such termination, (y) in the case of Section 13.2(b)(ii), simultaneously with such termination, and (z) in the party who shall have made case of Section 13.2(b)(iii), (iv) or (v), no later than the time of Company’s entering into an agreement for any Competing Transaction with any Person or, if there is no such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect theretoagreement, upon the consummation of such Competing Transaction. Notwithstanding the foregoingFor avoidance of doubt, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses Termination Fee on more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000one occasion.
(c) Any payment of If Company fails to pay all amounts due to Parent on the Liquidated Amount required by dates specified in this Section 9.2(b) hereof 13.2, then Company shall be payable by pay Parent interest on such unpaid amounts at the Company to MergerCo by wire transfer of immediately available funds (i) prime lending rate prevailing at such time, as published in the case of clause (W) or (Y) thereofThe Wall Street Journal, within three (3) business days after plus 2%, from the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after such amounts were required to be paid until the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated actually received by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to Company acknowledges that the contrary agreements contained in this Section 13.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and MergerCo hereto expressly acknowledge and agree that, with respect Merger Sub would not have entered into this Agreement. Company acknowledges that its obligation to pay to Parent any termination of this Agreement amounts due pursuant to this Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where 13.2 is not subject to the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages Company Requisite Vote or any other claim which Parent stockholder vote or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesapproval being obtained.
Appears in 2 contracts
Sources: Merger Agreement (CNS Inc /De/), Merger Agreement (Glaxosmithkline PLC)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement by either the Company or Parent pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have void, there shall be no effect, without any liability under this Agreement on the part of any Parent or the Company, other than in respect of the provisions of Section 6.3, this Section 8.2 and Section 8.5, and except to the extent that such termination results from the willful and material breach by a party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the of its covenants or agreements contained set forth in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates If this Agreement under is terminated by either party pursuant to clause (i) of Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i8.1(e) or Section 7.1(a)(iii), or (X) the Company terminates at a time when Parent was entitled to terminate this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, clause (i) an Acquisition Proposal of Section 8.1(e) and if a Company Trigger Event (as defined herein) shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingoccur, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
make payment to Parent (c) Any payment without any requirement of demand and simultaneously with the occurrence of the Liquidated Amount required by Section 9.2(bCompany Trigger Event) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds of a breakup fee in the amount of $15 million (the "Company Breakup Fee"). A "Company Trigger Event" shall be deemed to have occurred if, (i) prior to termination of this Agreement a proposal relating to a Competing Transaction with respect to the Company shall have been made or a person's interest in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, effecting a Competing Transaction shall have otherwise been made known and (ii) not later than the first anniversary of termination of this Agreement, (A) the Company shall have entered into a definitive agreement with a third party (whether or not a person referred to in the case of clause (Zi) thereof, within three above) providing for the acquisition of the Company or a majority of the Company's assets or voting securities by such third party or the consolidation or merger of the Company or (3B) business days after any person (other than Parent) shall have acquired beneficial ownership of more than 50% of the date outstanding voting securities of entering into such definitive agreement, and the Company.
(iiic) in the case of If this Agreement is terminated by either party pursuant to clause (Xii) thereof, prior of Section 8.1(e) or at a time when the Company was entitled to terminating terminate this Agreement pursuant to clause (ii) of Section 9.1(c)(i8.1(e) hereofand if a Parent Trigger Event (as defined herein) shall occur, in Parent shall make payment to the Company (without any such case to an account designated by MergerCo. Any payment requirement of demand and simultaneously with the occurrence of the Parent/MergerCo Expenses required by Section 9.2(bParent Trigger Event) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by of a breakup fee in the Company amount of reasonable documentation of all Parent/ MergerCo Expenses.
$15 million (dthe "Parent Breakup Fee"). A "Parent Trigger Event" shall be deemed to have occurred if, (i) Notwithstanding anything prior to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant a proposal relating to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages a Competing Transaction with respect to any claim for damages Parent shall have been made or any other claim which Parent or MergerCo would a person's interest in effecting a Competing Transaction shall have otherwise be entitled to assert against been made known and (ii) not later than the Company or any first anniversary of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant (A) Parent shall have entered into a definitive agreement with a third party (whether or not a person referred to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): clause (i) constitute a reasonable estimate above) providing for the acquisition of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery a majority of Parent's assets or judgment against voting securities by such third party or the Company consolidation or any merger of the Company Subsidiaries Parent or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any person (other damages than the Company) shall have acquired beneficial ownership of any kind, including, without limitation, consequential, indirect or punitive damagesmore than 50% of the outstanding voting securities of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Wausau Paper Mills Co), Merger Agreement (Mosinee Paper Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Parent or the Company as provided in Section 9.1 hereof9.1, this Agreement shall forthwith become null and void and have no effecteffect except (i) Sections 7.2(b), without 9.2 and 10.3 shall survive any liability on termination of this Agreement and (ii) that, notwithstanding anything to the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, no party shall relieve be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful breach of any provision of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) If the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either 9.1(g), the Company or MergerCo terminates this Agreement pursuant shall pay to Section 9.1(b)(i), if, prior Parent a termination fee equal to $5 million (the Special Meeting, (i"Termination Fee Amount") an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following by wire transfer of same day funds on the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000termination.
(c) Any payment In the event that an Acquisition Proposal with respect to the Company or any of its Subsidiaries shall have been made known to the Company or any of its Subsidiaries and shall have been publicly announced or otherwise become public, or shall have been made to the shareholders of the Liquidated Amount required Company, and thereafter (x) this Agreement is terminated by either Parent or the Company pursuant to either (i) Section 9.2(b9.1(c) hereof and prior to such termination the stockholders of the Company shall be payable by not have previously approved the Merger, or (ii) Section 9.1(d) hereof as a result of the failure of the stockholders of the Company to MergerCo approve the Merger, and (y) within twelve months of such termination (A) the Company or the Company Bank enters into any Acquisition Agreement providing for any transaction described in clause (i)(a) or clause (i)(b) of Section 7.3(d)(ii), other than any such transaction involving a merger, consolidation or similar transaction as to which the common stockholders of the Company immediately prior thereto own in the aggregate at least 60% of the common stock of the surviving or transferee corporation or its publicly-held parent corporation immediately following consummation thereof, or (B) any person shall acquire beneficial ownership of or the right to acquire 25% or more of the outstanding shares of Company Common Stock, then upon the first occurrence of either of the events contemplated by clause (y) the Company shall pay Parent a termination fee equal to the Termination Fee Amount by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensessame day funds.
(d) Notwithstanding anything to The Company agrees that the contrary agreements contained in Section 9.2(b) and 9.2(c) above are integral parts of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty.
(e) Provided that the Company shall not be in material breach of this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of in the event that this Agreement is terminated by Parent or the Company pursuant to (i) Section 9.1(c)(i) or Section 9.1(d)(ii) hereof9.1(c), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where and at the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment time of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or such termination any of the Company Subsidiaries or any of their respective assetsNon-Florida Approvals (as defined below) shall not have been obtained, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising Section 9.1(b) as a result of the foregoing. Except for nonpayment failure of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against of the Non-Florida Approvals, Parent shall pay to the Company or a termination fee of $3.5 million by wire transfer of same day funds on the date of termination. The term "Non-Florida Approvals" shall mean the Requisite Regulatory Approvals other than any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesregulatory approval required under Florida law.
Appears in 2 contracts
Sources: Merger Agreement (Gulf West Banks Inc), Merger Agreement (South Financial Group Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Buyer as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto or its affiliates, trustees, directors, their respective officers or stockholders and all rights and obligations of any party hereto shall cease directors except for the agreements contained in with respect to Section 7.44.1(x), the third penultimate sentence of Section 7.16 6.2, Section 6.5, Section 6.7, this Section 8.2 and Articles 9 and 10Article IX, which provisions shall survive such termination; providedprovided that, however, that nothing notwithstanding anything to the contrary contained in this Section 9.2(a) Agreement, neither Buyer nor the Company shall relieve be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful and material breach of this Agreement.
(b) The In the event (i) Buyer terminates this Agreement pursuant to Section 8.1(e), (ii) Buyer terminates this Agreement pursuant to Section 8.1(g) or (iii) Buyer or the Company terminates this Agreement pursuant to Section 8.1(j), then the Company shall promptly, but in no event later than one Business Day after the date of such termination, pay to MergerCo an amount in cash equal to Buyer by wire transfer of immediately available funds the Company Termination Fee.
(c) In the event (A) $5,000,000 Buyer terminates this Agreement pursuant to Section 8.1(b) without the Company Stockholders Meeting having occurred or Buyer or the Company terminates this Agreement pursuant to Section 8.1(d) (provided, that the "Liquidated Amount"basis for such termination is the failure to obtain the Company Stockholder Approval and the Company has not effected a Change in the Company Recommendation), plus (B) at any time after the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates date of this Agreement under Section 9.1(d)(iand before such termination an Acquisition Proposal with respect to the Company (other than the Merger) as a result shall have been publicly announced or otherwise communicated to the stockholders of the Company having wilfully breached and (C) within twelve months of such termination the Company or any of its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)Subsidiaries enters into any definitive agreement with respect to, or consummates, any Acquisition Proposal, then the Company shall promptly, but in no event later than one Business Day after the earlier of the date the Company or its Subsidiary enters into such agreement with respect to or consummates such Acquisition Proposal, pay Buyer by wire transfer of immediately available funds the Company Reduced Termination Fee.
(Xd) In the event (i) the Company terminates this Agreement pursuant to Section 9.1(c)(i8.1(f) or (Yii) MergerCo Company terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(h), ifBuyer shall, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents promptly but in opposition to the Merger and (ii) within nine (9) months immediately following no event later than one Business Day after the date of such termination termination, pay the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesBuyer Termination Fee.
(de) Notwithstanding anything to The parties hereto acknowledge that the contrary agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, without these agreements, neither the Company nor Buyer would enter into this Agreement; accordingly, if either party fails promptly to pay any amount due pursuant to this Section 8.2, and, in order to obtain such payment, the party entitled to such payment commences a suit which results in a judgment against the non-paying party for the fee set forth in this Section 8.2, the non-paying party shall pay to the party entitled to such payment its costs and expenses (including attorneys' fees and expenses) 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, notwithstanding the provisions of Section 6.5. The parties hereto agree that any remedy or amount payable pursuant to this Section 8.2 is the exclusive remedy for breaches or terminations of this Agreement other than with respect to any termination willful and material breach of any representation, warranty, covenant or agreement contained in this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages (or any other claim remedy which Parent or MergerCo would otherwise cannot be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment waived under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(bapplicable law), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Plato Learning Inc), Merger Agreement (Lightspan Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) the remainder of this Section 8.2 and (d) hereofto Section 8.3, in the event of the termination of this Agreement pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto the Company, MergerCo or its affiliatesJuniper and their respective directors, trustees, directorsofficers, officers employees, partners or stockholders and all rights and obligations of any party hereto the Company, Juniper and MergerCo shall cease cease, except for the agreements contained in Section 7.4Sections 6.2, the third sentence of Section 7.16 6.7, 8.2, 8.3 and Articles 9 and 10Article IX; provided, however, that nothing contained in this Section 9.2(a8.2(a) shall relieve any party Party from liability for liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, covenants or other agreements contained in this Agreement.
(b) The If this Agreement is terminated by Juniper pursuant to Section 8.1(c) or by the Company pursuant to Section 8.1(d), then Juniper shall pay to MergerCo the Company, subject to Section 8.4, an amount in cash equal to (A) $5,000,000 1,000,000 (the "Liquidated AmountBreak-up Fee"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, . If (i) at the time of Juniper's Stockholders Meeting, an Acquisition Proposal shall have been made directly (and not then withdrawn), (ii) this Agreement is terminated by either Party pursuant to Sections 8.1(b)(ii) or (v) or by the Company's stockholders generally or any person shall have publicly announced Company pursuant to Section 8.1(b)(iii) and (iii) Juniper consummates an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding the foregoingto an Acquisition Proposal, in no event either case, within twelve (12) months of such termination (and the transaction contemplated by any such definitive agreement is consummated within eighteen (18) months of such termination), then Juniper shall pay to the Company be obligated to pay the Liquidated Amount or Break-up Fee. Payment of the Parent/MergerCo Expenses more than once. For purposes of Break-up Fee required by this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c8.2(b) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i1) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement by Juniper pursuant to Section 9.1(c)(i8.1(c) or by the Company pursuant to Section 9.1(d)(ii) hereof8.1(d), concurrently with the effective date of such termination, or (2) in case of a situation contemplated by the second sentence of this Section 9.1(b)(i) 8.2(b), concurrently with the consummation of such Acquisition Proposal. For the avoidance of doubt, the amount of any fees or expenses paid to the Company pursuant to Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, 8.3 shall be deducted from the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to Break-up Fee required by this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b8.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Monmouth Capital Corp), Merger Agreement (Monmouth Real Estate Investment Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the termination of If this Agreement is terminated pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith shall, to the fullest extent permitted by applicable Law, become null and void and have of no effect, force or effect without any liability on the part of any party hereto (or its affiliatesany stockholder, trusteesdirector, directorsofficer, officers employee, agent, consultant or stockholders and all rights and obligations representative of any such party) to the other party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10hereto; provided, however, that nothing contained in this Section 9.2(aif such termination shall result from (i) shall relieve the willful failure of any party from liability hereto to fulfill a condition to the performance of the material obligations of the other parties hereto or (ii) the willful failure of any party hereto to perform a material covenant applicable to it, such party shall be fully liable for any fraud and all liabilities and damages incurred or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (suffered by the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) other party as a result of the Company having wilfully breached its obligations under Section 7.1(a)(isuch failure; provided, further, that:
(a) if (i) either Parent or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i8.1(c), 8.1(d) or 8.1(f) and (Yii) MergerCo within 12 months after the date of such termination, the Company enters into or consummates a definitive agreement with respect to an Acquisition Proposal that is publicly disclosed or announced and not withdrawn prior to the Stockholders Meeting, within one Business Day after entering into such definitive agreement, the Company shall pay the applicable Company Termination Fee to, or as directed by, Parent by wire transfer of immediately available funds to one or more account(s) specified by Parent in writing, provided that, with respect to termination pursuant to Section 8.1(c), the Merger shall not have failed to have been consummated by the Outside Date as a result of any action taken by Parent, or Parent's failure to take any action;
(b) if Parent terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either 8.1(g), within two Business Days after the date of such termination, the Company shall pay the applicable Company Termination Fee to, or MergerCo as directed by, Parent by wire transfer of immediately available funds to one or more account(s) specified by Parent in writing;
(c) if the Company terminates this Agreement pursuant to Section 9.1(b)(i8.1(h), if, at or prior to the Special Meetingtime of such termination, the Company shall pay the applicable Company Termination Fee to, or as directed by, Parent by wire transfer of immediately available funds to one or more account(s) specified by Parent in writing;
(id) an Acquisition Proposal shall have been made directly if the Company terminates this Agreement pursuant to the Company's stockholders generally Section 8.1(e) or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) 8.1(i), within nine (9) months immediately following two Business Days after the date of such termination termination, Parent shall pay 12,000,000 (the "Parent Termination Fee") in cash to, or as directed by, the Company and the party who shall have made such Acquisition Proposal by wire transfer of immediately available funds to one or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall more account(s) specified by the Company in writing, and, for the avoidance of doubt, the Parent Termination Fee shall be obligated to pay the Liquidated Amount exclusive remedy of the Company for breach of this Agreement by Parent;
(e) if this Agreement is terminated by Parent or the Parent/MergerCo Expenses Company pursuant to Section 8.1(c), 8.1(d), 8.1(f), 8.1(g) or 8.1(h), as the case may be, the Company shall pay to, or as directed by, Parent by wire transfer of immediately available funds to one or more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred account(s) specified by Parent in writing, within three Business Days after the date of termination, all reasonable and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other documented out-of-pocket costs and expenses (including, the reasonable and documented fees and expenses of lawyers, accountants, consultants, financial advisors, and investment bankers), not to exceed $3,500,000 (which, such number shall be increased to $4,500,000 if this Agreement is not terminated pursuant to Section 8.1 prior to the date that is 60 days after the Effective Date) in the aggregate and incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions entering into of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions performance of its obligations hereunder (collectively, the "Parent/MergerCo Parent Expenses"); provided. If this Agreement is terminated by Parent pursuant to Section 8.1(j), however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo pay to, or as directed by, Parent by wire transfer of immediately available funds (ito one or more account(s) specified by Parent in the case of clause (W) or (Y) thereofwriting Parent, within three (3) business days Business Days after the date of termination, an amount equal to 50% of the Parent Expenses (iithe "Consent Termination Expenses"). The payment of expenses set forth in this Section 8.1(e) is not an exclusive remedy, but is in addition to any other rights or remedies available to the parties hereto (whether at law or in equity), and in no respect is intended by the parties hereto to constitute liquidated damages, or be viewed as an indicator of the damages payable, or in any other respect limit or restrict damages available in case of clause (Z) thereof, within three (3) business days after the date any breach of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.Agreement; and
(df) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any each of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to and Parent acknowledges that the agreements contained in this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light Section 8.2 are an integral part of the difficulty transactions contemplated by this Agreement. In the event that the Company shall fail to pay the Company Termination Fee, Parent Expenses or the Consent Termination Expenses when due, Company shall reimburse Parent for all reasonable and document costs and expenses actually incurred or accrued by or on behalf of accurately determining actual damages Parent (including reasonable fees and expenses of counsel) in connection with respect to the foregoing upon any termination collection under and enforcement of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b8.2(f), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Acquiror as provided in Section 9.1 hereof10.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto the Company or its affiliates, trustees, directorsAcquiror or their respective Subsidiaries, officers or stockholders directors except (i) with respect to Section 8.3, Section 8.7, this Section 10.2, Section 10.3 and all rights Article XI and obligations (ii) with respect to any liabilities for damages incurred or suffered by a party as a result of the willful and material breach by the other party of any party hereto shall cease except for the of its representations, warranties, covenants or other agreements contained set forth in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company agrees that if this Agreement is terminated prior to the Effective Time as a consequence of a failure or non-waiver of any condition contained in Section 9.3(a) or Section 9.3(c) or pursuant to Section 10.1(b)(iii), Section 10.1(d), Section 10.1(e) or Section 10.1(f), then the Company shall pay to MergerCo Acquiror an amount in cash equal to the Parent Expense Reimbursement Amount. Payment of the Parent Expense Reimbursement Amount pursuant to this Section 10.2(b) shall be made not later than five (5) Business Days after Parent has delivered to the Company a notice of demand for payment and a documented itemization setting forth in reasonable detail all expenses for which it seeks payment (which itemization may be supplemented and updated from time to time until the thirtieth (30th) day after Parent delivers notice of demand for payment).
(c) In addition to any payment required by Section 10.2(b) and notwithstanding any other provision of this Agreement, the Company and Parent agree that:
(i) if this Agreement is terminated pursuant to Section 10.1(e)(i), (ii) or (iii) or Section 10.1(f) then the Company shall immediately pay to Parent the Termination Fee;
(ii) if this Agreement is terminated pursuant to Section 10.1(b)(iii) or Section 10.1(d) then, in the event that, prior to such termination, (A) $5,000,000 (the "Liquidated Amount"), plus any Third Party Acquisition occurs or (B) any Third Party shall have publicly made, proposed, communicated or disclosed an intention to make a bona fide Acquisition Proposal (or such Acquisition Proposal becomes publicly known or is otherwise communicated to the Parent/MergerCo Expenses Board of Directors of the Company or the Special Committee) that, in the event of a termination pursuant to Section 10.1(d), could reasonably be expected to lead to a Superior Proposal, the Company shall immediately pay to Parent the Termination Fee;
(as hereinafter definediii) if (WA) MergerCo terminates this Agreement under is terminated pursuant to Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i10.1(b)(iii) or Section 7.1(a)(iii)10.1(d) and (B) no Termination Fee has been paid by the Company to Parent and (C) within twelve (12) months following such termination, or (X1) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding the foregoingto an Acquisition Proposal or (2) any Third Party Acquisition occurs, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by then the Company shall not exceed $1,000,000.immediately pay to Parent the Termination Fee upon the first to occur of the events described in clause (C)(1) and (C)(2) of this sentence; and
(civ) Any payment if (A) this Agreement is terminated pursuant to Section 10.1(b)(i) (provided that at the time of such termination pursuant to Section 10.1(b)(i), the conditions precedent in Section 9.1(b) and Section 9.3(d) shall have been capable of being satisfied and the reason for the Closing not having previously occurred shall not be the failure to satisfy the conditions precedent set forth in Section 9.2 through no fault of the Liquidated Amount required by Section 9.2(bCompany) hereof and (B) prior to such termination, (1) any Third Party Acquisition occurs or (2) any Third Party shall be payable have publicly made, proposed, communicated or disclosed an intention to make a bona fide Acquisition Proposal, or such Acquisition Proposal becomes publicly known or is otherwise communicated to the Board of Directors of the Company or the Special Committee, and (C) no Termination Fee has been paid by the Company to MergerCo by wire transfer of immediately available funds Parent and (iD) in the case of clause within twelve (W12) or (Y) thereof, within three (3) business days after the date of months following such termination, (ii1) the Company enters into a definitive agreement with respect to an Acquisition Proposal or (2) any Third Party Acquisition occurs, then the Company shall immediately pay to Parent the Termination Fee upon the first to occur of the events described in the case of clause (ZD)(1) thereofand (D)(2) of this sentence. Solely for the purposes of Sections 10.2(c)(ii), within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause and (Xiv) thereof, prior to terminating this Agreement pursuant to and Section 9.1(c)(i10.1(e)(iv) hereof, all references to 15% in any such case to an account designated by MergerCo. Any payment the definition of the Parent/MergerCo Expenses required by Section 9.2(b) hereof term “Acquisition Proposal” shall be payable by the Company deemed to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesbe 20%.
(d) Notwithstanding anything to The parties acknowledge that the contrary agreements contained in Section 10.2(b) and Section 10.2(c) are an integral part of the transactions contemplated by this Agreement, and that without the agreement, they would not enter into this Agreement; accordingly, if the Company fails to pay promptly the Parent Expense Reimbursement Amount or the Termination Fee payable by it pursuant to this Section 10.2, then the Company shall pay to Parent its costs and MergerCo hereto expressly acknowledge expenses (including attorneys’ fees) in connection with collecting such amounts, together with interest on the amounts at the prime rate in effect from time to time and agree that, with respect to any termination of quoted in The Wall Street Journal during such period from the date such payment was due under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where until the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment date of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagespayment.
Appears in 2 contracts
Sources: Merger Agreement (Hollywood Entertainment Corp), Merger Agreement (Movie Gallery Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof7.01, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability Liability on the part of any party hereto Parent, Merger Sub or its affiliatesthe Company or their respective Subsidiaries, trusteesofficers, directors, officers employees, agents or stockholders representatives except (i) with respect to Section 5.02(c) (Confidentiality), Section 5.06 (Public Announcements), this Section 7.02 and all rights ARTICLE VIII and obligations (ii) with respect to any Liabilities incurred or suffered by a party as a result of the willful breach by another party of any party hereto shall cease except for the of its representations, warranties, covenants or other agreements contained set forth in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The In the event that this Agreement is terminated by Parent pursuant to Section 7.01(e) or by the Company pursuant to Section 7.01(f), then the Company shall pay to MergerCo an amount Parent immediately prior to or concurrently with such termination, in cash equal to (A) the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, a termination fee of $5,000,000 265 million (the "Liquidated Amount"“Termination Fee”), plus .
(Bc) In the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates event that this Agreement under Section 9.1(d)(i) as a result of is terminated by Parent or the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i7.01(b) (in the event that the Company Stockholder Approval has not been obtained prior to such termination) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii7.01(d) or and (Zi) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) date of such termination of this Agreement an Acquisition Proposal shall have been made directly known to the Company's stockholders generally Company or any person shall have publicly announced disclosed (and not publicly withdrawn prior to such termination) and (ii) concurrently with, or within 12 months after, such termination, the Company either (A) consummates a transaction that constitutes an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iiB) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding the foregoingto engage in a transaction or a tender offer is commenced that, in no event shall either case, constitutes an Acquisition Proposal and such transaction or tender offer is subsequently consummated or completed (whether or not such consummation or completion occurs before or after the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For 12-month period following such termination) (provided that for all purposes of this Section 9.27.02(c), "Parent/MergerCo Expenses" the term Acquisition Proposal shall have the meaning assigned to such term in Section 8.04, except that the references to “15%” and “85%” shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses deemed to be reimbursed by references to 50%), then the Company shall not exceed $1,000,000pay to Parent the Termination Fee on the date no later than two Business Days after, and subject to, the consummation or completion of such Acquisition Proposal.
(cd) Any payment of the Liquidated Amount required by All payments under this Section 9.2(b) hereof 7.02 shall be payable by the Company to MergerCo made by wire transfer of immediately available funds to an account designated in writing by Parent.
(e) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 7.02 are an integral part of the case of clause (W) or (Y) thereof, within three (3) business days after the date of terminationTransactions, (ii) in without these agreements, Parent, Merger Sub and the case of clause (Z) thereof, within three (3) business days after the date of entering Company would not enter into such definitive agreement, this Agreement and (iii) the Termination Fee is not a penalty, but rather constitutes damages in a reasonable amount that will partially compensate Parent and Merger Sub in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, circumstances in any which such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesTermination Fee is payable.
(df) In the event that the Company shall fail to pay the Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by them (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 7.02, together with interest on the Termination Fee at the prime rate as quoted on Bloomberg screen (PRIMBB Index) in effect on the date such payment was required to be made through the date of payment plus 2% per annum.
(g) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of in the event that this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable is terminated in accordance with Section 9.2(bArticle VII and the Termination Fee is paid to Parent (or its designee) hereofin accordance with the provisions of this Agreement, the payment of the Liquidated Amount Termination Fee shall be the sole and the exclusive remedy of Guarantor, Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert , Merger Sub and each of their respective Affiliates against the Company or any of Company, the Company Subsidiaries or and any of their respective assetsformer, or against any current and future Affiliates, and each of their respective directors, officers, employees, partnersstockholders, managerscontrolling Persons, members agents or shareholdersrepresentatives for any liability, with respect loss or damage based upon, arising out of or relating to this Agreement and Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the Transactions and shall constitute the sole and exclusive remedy available or in respect of any other document or theory of law or equity or in respect of any representations made or alleged to Parent and MergerCo. The parties hereto expressly acknowledge and agree thatbe made in connection herewith or therewith, whether at law or equity, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofcontract, in tort or otherwise. In no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of be required to pay the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesTermination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Concur Technologies Inc), Merger Agreement (Concur Technologies Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Section 7.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void void, 52 54 and have there shall be no effect, without any liability on the part of any party hereto Parent, the Purchaser or its affiliates, trustees, the Company or their respective directors, officers officers, employees, shareholders, representatives, agents or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4advisors other than, with respect to Parent, the third Purchaser and the Company, the obligations pursuant to this Section 7.2, Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13 and the last sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing 5.3. Nothing contained in this Section 9.2(a) 7.2 shall relieve any party Parent, the Purchaser or the Company from liability for any fraud or willful breach of this Agreement.
(b) The In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c)(i) hereof or by Parent and the Purchaser pursuant to Section 7.1(d)(i) hereof, the Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) Parent by certified check or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCoParent immediately following receipt of a request therefor, an amount equal to $45 million (the "Termination Fee"). Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by In addition, the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by shall pay Parent the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of Termination Fee if this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to is terminated for any claim for damages or any reason (other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising than as a result of a material breach by Parent or the foregoing. Except for nonpayment of Purchaser that resulted in the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofAgreement, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall a willful breach by Parent or MergerCo the Purchaser of their obligations hereunder) at any time after an Acquisition Proposal has been made by a third party (Aa "Third Party Acquiror") seek to obtain and, within one year after such a termination, the Company completes either (x) a merger, consolidation or other business combination with any recovery such Third Party Acquiror (or judgment against another party who makes an Acquisition Proposal at a time when the Company is in discussions with any such Third Party Acquiror), or (y) the sale of 50% or more (in voting power) of the voting securities of the Company or any of 40% or more (in market value) of the assets of the Company Subsidiaries and its Subsidiaries, on a consolidated basis to any such Third Party Acquiror (or another party who makes an Acquisition Proposal at a time when the Company is in discussions with any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagessuch Third Party Acquiror).
Appears in 2 contracts
Sources: Merger Agreement (Healthsource Inc), Merger Agreement (Cigna Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either WIBC or BBCN as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto BBCN or its affiliates, trustees, WIBC or their respective officers or directors, officers or stockholders except with respect to Sections 4.1(y), 4.2(x), 6.2(b) and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.46.8, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) 8.2 and Article IX, which shall relieve survive such termination and except that no Party shall be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful and material breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement in accordance with their terms.
(b) The Company BBCN shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount")WIBC, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds funds, the sum of $40 million (the “BBCN Termination Fee”) if this Agreement is terminated as follows:
(i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating if WIBC shall terminate this Agreement pursuant to Section 9.1(c)(i8.1(e), BBCN shall pay the BBCN Termination Fee on the business day following such termination;
(ii) if (A) either Party shall terminate this Agreement pursuant to Section 8.1(g) because the Required BBCN Vote shall not have been received, and (B) at any time after the date of this Agreement and at or before the date of the BBCN Stockholders Meeting an Acquisition Proposal, whether or not relating to an Acquisition Proposal received prior to the date hereof, shall have been made or renewed to BBCN or its Board of Directors, publicly announced or otherwise become publicly known (a “BBCN Proposal”), and (C) if within eighteen (18) months after the date of such termination of this Agreement, BBCN or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, (1) any Acquisition Proposal with a financial institution (or any parent, subsidiary or other affiliate) that has publicly announced an Acquisition Proposal to BBCN at any time within 60 days prior to the date of this Agreement, or (2) any other Acquisition Proposal (substituting for purposes of this clause (C)(2) “50%” for “20%” in any such case the definition thereof), then BBCN shall pay WIBC the BBCN Termination Fee upon the first to an account designated by MergerCo. Any payment occur of the Parent/MergerCo Expenses date of execution of such definitive agreement or the consummation of the transaction contemplated by such Acquisition Proposal; and
(iii) if (A) either Party shall terminate this Agreement pursuant to Section 8.1(c) or WIBC shall terminate this Agreement pursuant to Section 8.1(f), and (B) at any time after the date of this Agreement and before such termination there shall have been made or renewed a BBCN Proposal, and (C) if within eighteen (18) months of the date of such termination of this Agreement, BBCN or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, (1) any Acquisition Proposal with a financial institution (or any parent, subsidiary or other affiliate) that has publicly announced an Acquisition Proposal to BBCN at any time within 60 days prior to the date of this Agreement, or (2) any other Acquisition Proposal (substituting for purposes of this clause (C)(2) “50%” for “20%” in the definition thereof), then BBCN shall pay WIBC the BBCN Termination Fee upon the first to occur of the date of execution of such definitive agreement or the consummation of the transaction contemplated by such Acquisition Proposal. If BBCN fails to pay all amounts due to WIBC on the dates specified, then BBCN shall pay all costs and expenses (including legal fees and expenses) incurred by WIBC in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in the Wall Street Journal, from the date such amounts were required to be paid until the date actually received by Section 9.2(bWIBC.
(c) hereof WIBC shall be payable by the Company to MergerCo pay BBCN, by wire transfer of immediately available funds promptly following receipt by funds, the Company sum of reasonable documentation of all Parent/ MergerCo Expenses.$40 million (the “WIBC Termination Fee”) if this Agreement is terminated as follows:
(di) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of if BBCN shall terminate this Agreement pursuant to Section 9.1(c)(i8.1(d), WIBC shall pay the WIBC Termination Fee on the business day following such termination;
(ii) or Section 9.1(d)(iiif (A) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses either Party shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of terminate this Agreement pursuant to Section 9.1(c)(i8.1(g) because the Required WIBC Vote shall not have been received, and (B) at any time after the date of this Agreement and at or Section 9.1(d)(ii) before the date of the WIBC Stockholders Meeting an Acquisition Proposal, whether or not relating to an Acquisition Proposal received prior to the date hereof, shall have been made or Section 9.1(b)(irenewed to WIBC or its Board of Directors, publicly announced or otherwise become publicly known (a “WIBC Proposal”), and (C) if within eighteen (18) months after the date of such termination of this Agreement, WIBC or Section 9.1(d)(iany of its Subsidiaries executes any definitive agreement with respect to, or consummates, (1) hereof any Acquisition Proposal with a financial institution (or any parent, subsidiary or other affiliate) that has publicly announced an Acquisition Proposal to BBCN at any time within 60 days prior to the date of this Agreement, or (2) any other Acquisition Proposal (substituting for purposes of this clause (C)(2) “50%” for “20%” in circumstances where the Liquidated Amount and definition thereof), then WIBC shall pay BBCN the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, WIBC Termination Fee upon the rights first to payment under Section 9.2(b): (i) constitute a reasonable estimate occur of the damages that will be suffered date of execution of such definitive agreement or the consummation of the transaction contemplated by reason of any such proposed or actual termination of Acquisition Proposal; and
(iii) if (A) either Party shall terminate this Agreement pursuant to Section 9.1(c)(i8.1(c) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) BBCN shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders8.1(f), and (B) be entitled at any time after the date of this Agreement and before such termination there shall have been made or renewed a WIBC Proposal, and (C) if within eighteen (18) months of the date of such termination of this Agreement, WIBC or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, (1) any Acquisition Proposal with a financial institution (or any parent, subsidiary or other affiliate) that has publicly announced an Acquisition Proposal to seek BBCN at any time within 60 days prior to the date of this Agreement, or obtain (2) any other damages Acquisition Proposal (substituting for purposes of this clause (C)(2) “50%” for “20%” in the definition thereof), then WIBC shall pay BBCN the WIBC Termination Fee upon the first to occur of the date of execution of such definitive agreement or the consummation of the transaction contemplated by such Acquisition Proposal. If WIBC fails to pay all amounts due to BBCN on the dates specified, then WIBC shall pay all costs and expenses (including legal fees and expenses) incurred by BBCN in connection with any action or proceeding (including the filing of any kindlawsuit) taken by it to collect such unpaid amounts, includingtogether with interest on such unpaid amounts at the prime lending rate prevailing at such time, without limitationas published in the Wall Street Journal, consequential, indirect or punitive damagesfrom the date such amounts were required to be paid until the date actually received by BBCN.
Appears in 2 contracts
Sources: Merger Agreement (BBCN Bancorp Inc), Merger Agreement (Wilshire Bancorp Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Washington Mutual or Dime as provided in Section 9.1 hereof9.1, this Agreement shall forthwith become null and void and have no effect, without and none of Washington Mutual, Dime, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability on the part of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Sections 7.2(b), directors9.2, officers or stockholders and all rights 10.2 shall survive any termination of this Agreement and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, neither Washington Mutual nor Dime shall relieve be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful breach of any provision of this Agreement.
(b) The Company Dime shall pay Washington Mutual, by wire transfer of immediately available funds, the sum of $185 million (the "Termination Fee") if this Agreement is terminated as follows:
(i) if this Agreement is terminated by Washington Mutual pursuant to MergerCo an amount in cash equal to Sections 9.1(f) or 9.1(g), then Dime shall pay the entire Termination Fee on the second Business Day following such termination; and
(ii) if this Agreement is terminated by (A) $5,000,000 (Washington Mutual pursuant to Section 9.1(d) if the "Liquidated Amount"), plus breach giving rise to such termination was willful or (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) by either Washington Mutual or Section 7.1(a)(iii), or (X) the Company terminates this Agreement Dime pursuant to Section 9.1(c)(i9.1(e) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) and in any such case an Acquisition Proposal shall have been publicly announced or otherwise communicated or made directly known to the Company's stockholders generally senior management or Board of Directors of Dime (or any person shall have publicly announced announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iiProposal) within nine (9) months immediately following at any time after the date of this Agreement and prior to the date of the taking of the vote of the stockholders of Dime contemplated by this Agreement at the Dime Stockholders Meeting, in the case of clause (B), or the date of termination, in the case of clause (A), then Dime shall (x) pay Washington Mutual an amount equal to $20 million on the second Business Day following such termination the Company termination, and the party who shall have made (y) if within 18 months after such Acquisition Proposal termination, Dime or any affiliate thereof enter of its Subsidiaries enters into a definitive agreement with respect thereto. Notwithstanding the foregoingto, in no event or consummates, an Acquisition Proposal, then Dime shall the Company be obligated to pay the Liquidated Amount Termination Fee (net of any payment made pursuant to clause (x) above) on the date of such execution or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000consummation.
(c) Any payment of the Liquidated Amount required by amount that becomes payable pursuant to Section 9.2(b) hereof shall be payable by the Company to MergerCo paid by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesWashington Mutual.
(d) Notwithstanding anything to Dime and Washington Mutual agree that the contrary agreement contained in paragraph (b) above is an integral part of the transactions contemplated by this Agreement, Parent that without such agreement Washington Mutual would not have entered into this Agreement, and MergerCo hereto expressly acknowledge that such amounts do not constitute a penalty. If Dime fails to pay Washington Mutual the amounts due under paragraph (b) above within the time periods specified in such paragraph (b), Dime shall pay the costs and agree thatexpenses (including reasonable legal fees and expenses) incurred by Washington Mutual in connection with any action in which Washington Mutual prevails, with respect including the filing of any lawsuit, taken to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the collect payment of such amounts, together with interest on the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason amount of any such proposed or 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 termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagespayment.
Appears in 2 contracts
Sources: Merger Agreement (Dime Bancorp Inc), Merger Agreement (Washington Mutual Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination and abandonment of this Agreement pursuant to Section 9.1 hereofArticle IX, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders stockholders, other than the provisions of this Section 9.5 and all rights the provisions of Sections 10.1 and obligations of any party hereto shall cease except for the agreements contained in Section 7.410.2, the third last sentence of Section 7.16 1.2(c) the last two sentences of Section 7.5 and Articles 9 and 10; provided, however, that nothing this Section 9.5. Nothing contained in this Section 9.2(a) 9.5 shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to In the event that:
(A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (Xi) the Company terminates shall have terminated this Agreement pursuant to Section 9.1(c)(i9.4(d); or
(ii) or (Y) MergerCo terminates this Agreement is terminated by Parent or the Company pursuant to Section 9.1(d)(ii9.2(b) (other than if the condition set forth in clause (ii)(a) of Annex A is not then satisfied as a result of any order, decree or filing or other action relating to any Antitrust Law) and both (Zx) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meetingsuch termination, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally Board or the Company or publicly announced and, in each case, not irrevocably withdrawn, or any person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal or solicited proxies or consents in opposition to the Merger which intention has not been irrevocably withdrawn and (iiy) within nine (9) twelve months immediately following after the date of such termination termination, the Company and consummates any transaction specified in the party who shall have made definition of “Acquisition Proposal;” then in any such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingcase, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed pay Parent a termination fee of $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo 2,000,000.00 by wire transfer of immediately available funds to the account or accounts designated by Parent. Such payment shall be made (i1) concurrently with such termination in the case of a termination by the Company pursuant to Section 9.4(d) and (2) on the first business day after the consummation of the transaction referred to in clause (y) of Section 9.5(b)(ii) in the case of a termination fee payable pursuant to Section 9.5(b)(ii). For the avoidance of doubt, the Company shall not be required to pay a termination fee pursuant to more than one clause of this Section 9.5(b). For purposes of this Section 9.5(b), “Acquisition Proposal” shall have the meaning ascribed thereto in Section 7.2(e) except that references in Section 7.2(a) to “20%” shall be replaced by “50%”.
(Wc) In the event this Agreement is terminated by (i) Parent or (Ythe Company pursuant to Section 9.2(a) thereofas a result of any order, within three (3) business days after the date of termination, decree or ruling or other action relating to any Antitrust Law or (ii) in Parent or the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement Company pursuant to Section 9.1(c)(i9.2(b) hereofand all conditions set forth in Annex A would be satisfied if the purchase of shares tendered pursuant to the Offer were to occur on such date (other than the Minimum Condition and clause (ii)(a) of Annex A as a result of any order, decree or ruling or other action relating to any Antitrust Law), then in any such case Parent shall pay to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo a fee of $4,000,000.00 within one business day following the termination of this Agreement, in immediately available funds by wire transfer of immediately available funds promptly following receipt by to such account as the Company of reasonable documentation of all Parent/ MergerCo Expensesmay designate in writing to Parent.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of that the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) fees set forth above constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual the termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of such termination. The parties further acknowledge that the foregoing. Except for nonpayment agreements contained in this Section 9.5 are an integral part of the amounts set forth in Section 9.2(b)transactions contemplated by this Agreement, Parent and MergerCo hereby agree that, upon any termination of without these agreements, the parties would not enter into this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Factory Card & Party Outlet Corp), Merger Agreement (Amscan Holdings Inc)
Effect of Termination. (a) Subject Any termination of this Agreement by Parent pursuant to Sections 9.2(bthis Article VIII shall also constitute an effective termination by Purchaser.
(b) and (d) hereofExcept as provided in Section 8.5(c), in the event of the termination of this Agreement and the abandonment of the Merger pursuant to Section 9.1 hereofthis Article VIII, this Agreement (other than Section 6.2(b) and Articles VIII and IX) shall forthwith become null and void and have of no effect, without any effect with no liability on the part of any party hereto (or of any of its affiliates, trustees, directors, officers officers, employees, agents, legal and financial advisors or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10other representatives); provided, however, that nothing contained in this Section 9.2(a) no such termination shall relieve any party Person of any liability or damages resulting from liability for any fraud a knowing or willful intentional breach of this Agreement.
(bc) The In the event that:
(i) this Agreement is terminated by the Company shall pay pursuant to MergerCo an amount Section 8.3(b) or by Parent pursuant to Section 8.4(b); or
(ii) this Agreement is terminated by the Company pursuant to Section 8.3(a)(ii) (unless Purchaser’s failure to have accepted for payment and paid for Shares pursuant to the Offer on or before the Outside Date directly and materially resulted from or was directly and materially caused by Parent’s or Purchaser’s failure to perform, in cash equal to any material respect, any of their respective obligations under this Agreement), and (A) $5,000,000 at any time on or after the date hereof and prior to such termination a third party shall have made an Acquisition Proposal (the "Liquidated Amount"), plus (Bwhether or not conditional) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of to the Company having wilfully breached its obligations under Section 7.1(a)(i) Board or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal and, in each case, not irrevocably withdrawn such Acquisition Proposal or solicited proxies announcement, or consents in opposition any third party shall have publicly announced an intention (whether or not conditional) to the Merger make an Acquisition Proposal which intention has not been irrevocably withdrawn, and (iiB) any transaction specified in the definition of “Acquisition Proposal” is consummated with such third party or any other third party within nine twelve (912) months immediately following after the date of such termination or pursuant to any agreement for an Acquisition Proposal entered into within twelve (12) months after the Company date of such termination (or any amendment or substitute agreement); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.4(a) as a result of either (x) a failure of the Offer Condition set forth in Paragraph 2(d) of Exhibit A to be satisfied, or (y) a failure of the Offer Condition set forth in Paragraph 1(a) of Exhibit A to be satisfied at the expiration of the Offer in connection with which Parent has so terminated this Agreement, and in the case of clause (x) or (y), (A) at any time on or after the date hereof and prior to such termination a third party who shall have made an Acquisition Proposal (whether or not conditional) to the Company Board or the Company or shall have publicly announced an Acquisition Proposal and, in each case, not irrevocably withdrawn such Acquisition Proposal or such announcement, or such third party shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal which intention has not been irrevocably withdrawn, and (B) any affiliate thereof enter transaction specified in the definition of “Acquisition Proposal” is consummated with such third party or any other third party within twelve (12) months after the date of such termination or pursuant to any agreement for an Acquisition Proposal entered into a definitive agreement with respect thereto. Notwithstanding within twelve (12) months after the foregoingdate of such termination (or any amendment or substitute agreement); then in any such case, in no event shall the Company be obligated to pay the Liquidated Amount or the shall (x) reimburse Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the ’s and Purchaser’s reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses (including fees and expenses of counsel and any fees allocated to Parent pursuant to Section 8.6), not to exceed $500,000 in the aggregate, incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions transactions contemplated hereby and (collectivelyy) pay Parent a termination fee of $3,000,000, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo in each case by wire transfer of immediately available funds to the account or accounts designated by Parent. Such reimbursement and payment shall be made (i1) concurrently with such termination in the case of a termination by the Company pursuant to Section 8.3(b), (2) on the first (1st) Business Day following the date of such termination in the case of a termination by Parent pursuant to Section 8.4(b), (3) on the first (1st) Business Day after the first to occur of the events referred to in clause (B) of Section 8.5(c)(ii) in the case of a termination fee payable pursuant to Section 8.5(c)(ii), and (4) on the first (1st) Business Day after the first to occur of the events referred to in clause (WB) or (Y) thereof, within three (3) business days after the date of termination, (iiSection 8.5(c)(iii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement a termination fee payable pursuant to Section 9.1(c)(i8.5(c)(iii). For the avoidance of doubt, the Company shall not be required to pay a termination fee more than once or pursuant to more than one clause of this Section 8.5(c). For purposes of this Section 8.5(c), “Acquisition Proposal” shall have the meaning ascribed thereto in Section 6.3(h) hereof, except that references in any such case the definition to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof “ten percent (10%)” shall be payable replaced by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses“fifty percent (50%)”.
(d) Notwithstanding anything to The Company acknowledges that the contrary agreements contained in Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect without these agreements, Parent or Purchaser would not have entered into this Agreement; accordingly, if the Company fails to promptly pay any termination of this Agreement amount due pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof8.5(c), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofas applicable, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree thatand, in light order to obtain such payment, Parent commences a suit which results in a judgment in favor of the difficulty of accurately determining actual damages with respect to the foregoing upon Parent for any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts amount set forth in this Section 9.2(b)8.5, Parent the Company shall pay any costs and MergerCo hereby agree thatexpenses (including attorneys’ fees) in connection with such suit, upon any together with interest from the date of termination of this the Agreement pursuant on the amounts owed at the prime rate of Citibank N.A. in effect from time to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagestime during such period plus two percent.
Appears in 2 contracts
Sources: Merger Agreement (Genelabs Technologies Inc /Ca), Merger Agreement (Glaxosmithkline PLC)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof9.1, this Agreement shall will forthwith become null void, and void and have there will be no effect, without any liability on the part of the Acquiror Companies or the Company or any party hereto or its affiliates, trustees, directors, of their respective officers or stockholders directors to the other and all rights and obligations of any party hereto shall cease will cease, except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained (i) as set forth in this Section 9.2(a9.2 and in Section 10.1 hereof and (ii) shall nothing herein will relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The If this Agreement is terminated (i) by the Acquiror pursuant to clause (i) of Subsection 9.1(i) hereof (except under circumstances which would permit the Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates terminate this Agreement under Section 9.1(d)(iSubsection 9.1(h)); (ii) by the Acquiror pursuant to Subsection 9.1(i) hereof under any circumstances other than those described in clause (i) of this Subsection 9.2(b); (iii) by Acquiror or Company pursuant to Subsection 9.1(f) hereof because of the failure to obtain the required approval from the Company stockholders and at the time of such termination or prior to the Company Stockholders' Meeting there shall have been an Acquisition Proposal (whether or not such offer, proposal, announcement or agreement shall have been rejected or shall have been withdrawn prior to the time of such termination or of the Company Stockholders' Meeting); or (iv) by Acquiror as a result of Company's material breach of Section 7.3 or Subsection 7.1(a) hereof, the Company having wilfully breached its obligations under Section 7.1(a)(i) shall promptly pay to Acquiror or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following by wire transfer of same day funds not later than two Business Days after the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes termination fee of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions $4,528,000 (collectively, the "Parent/MergerCo ExpensesTermination Fee"); ) provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed if this Agreement is terminated by Acquiror or the Company pursuant to Subsection 9.1(f) hereof under the circumstances described in Subsection 9.2(b)(ii) hereof, and at the time of such termination the stockholders of the Acquiror shall have failed to approve the issuance of Acquiror Common Stock pursuant to this Agreement, the Acquiror shall not exceed $1,000,000be entitled to the Termination Fee.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable If this Agreement is terminated by the Company pursuant to MergerCo Subsection 9.1(i) hereof, and at the time of such termination there shall have been an Acquiror Acquisition Proposal (whether or not such offer, proposal, announcement or agreement shall have been rejected or shall have been withdrawn prior to the time of such termination), and the stockholders of Acquiror shall have failed to approve the issuance of Acquiror Common Stock pursuant this Agreement, the Acquiror shall promptly pay to the Company by wire transfer of immediately available same day funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days not later than two Business Days after the date of termination, (ii) in the case such termination a termination fee of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses$2,000,000.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Unitrode Corp)
Effect of Termination. (a) Subject In the event that:
(i) this Agreement is terminated by Spartan Stores pursuant to Sections 9.2(bSection 8.1(g), Nash-Finch shall pay, or cause to be paid, to Spartan Stores no later than two Business Days following the date of such termination cash in immediately available funds in an amount equal to $12,000,000 (the “Nash-Finch Termination Fee”);
(ii) this Agreement is terminated by Spartan Stores pursuant to Section 8.1(e) and at such time the conditions set forth in Section 7.3 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing and those conditions that are not satisfied, directly or indirectly, as a result of Nash-Finch’s breach of this Agreement) then Nash-Finch will pay, or will cause to be paid, to Spartan Stores in immediately available funds all documented out-of-pocket fees and expenses incurred by Spartan Stores or its Affiliates in connection with the transactions contemplated by this Agreement (“Nash-Finch Expense Reimbursement”; provided, that the Nash-Finch Expense Reimbursement shall not be more than an aggregate amount equal to $10,000,000); and if (A) any Person shall have made (whether or not subsequently withdrawn) a Nash-Finch Takeover Proposal on or after the date hereof but prior to the date that this Agreement is terminated pursuant to Section 8.1(e) and (B) (1) within 12 months after the Termination Date, Nash-Finch or any of its Affiliates consummates a Nash-Finch Takeover Proposal, or (2) Nash-Finch or any of its Affiliates enters into a definitive agreement with respect to a Nash-Finch Takeover Proposal within 12 months after the Termination Date and subsequently consummates such Nash-Finch Takeover Proposal at any time thereafter (provided, that, for purposes of this Section 8.2(a)(ii), the references to “more than 15%” and “more than 20%” in the definition of “Nash-Finch Takeover Proposal” will be deemed to be references to “more than 50%.”), then Nash-Finch shall pay, or cause to be paid, to Spartan Stores, an aggregate amount equal to the Nash-Finch Termination Fee, less the amount of any Nash-Finch Expense Reimbursement previously paid to Spartan Stores;
(iii) (A) this Agreement is terminated by Nash-Finch pursuant to Section 8.1(c) or by Spartan Stores or Nash-Finch pursuant to Section 8.1(d)(ii), (B) any Person shall have made (whether or not subsequently withdrawn) a Nash-Finch Takeover Proposal on or after the date hereof but prior to (1) the date that this Agreement is terminated in the case of a termination pursuant to Section 8.1(c) or (2) the Nash-Finch Stockholder Meeting in the case of a termination pursuant to Section 8.1(d)(ii), and (C) (1) within 12 months after the Termination Date, Nash-Finch or any of its Affiliates consummates a Nash-Finch Takeover Proposal, or (2) Nash-Finch or any of its Affiliates enters into a definitive agreement with respect to a Nash-Finch Takeover Proposal within 12 months after the Termination Date and subsequently consummates such Nash-Finch Takeover Proposal at any time thereafter (provided, that, for purposes of this Section 8.2(a)(iii), the references to “more than 15%” and “more than 20%” in the definition of “Nash-Finch Takeover Proposal” will be deemed to be references to “more than 50%.”), then Nash-Finch shall pay, or cause to be paid, to Spartan Stores, an aggregate amount equal to the Nash-Finch Termination Fee;
(iv) this Agreement is terminated by Nash-Finch pursuant to Section 8.1(j), then Nash-Finch shall pay, or cause to be paid, to Spartan Stores, prior to or contemporaneously with such termination, cash in an amount equal to the Nash-Finch Termination Fee (and any purported termination pursuant to Section 8.1(j) shall be void and of no force or effect unless Nash-Finch shall have made such payment);
(v) this Agreement is terminated by Nash-Finch pursuant to Section 8.1(h), Spartan Stores shall pay, or cause to be paid, to Nash-Finch no later than two Business Days following the date of such termination cash in immediately available funds in an amount equal to $12,000,000 (the “Spartan Stores Termination Fee”);
(vi) this Agreement is terminated by Nash-Finch pursuant to Section 8.1(f) and at such time the conditions set forth in Section 7.2 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing and those conditions that are not satisfied, directly or indirectly, as a result of Spartan Stores’ breach of this Agreement) then Spartan Stores will pay, or will cause to be paid, to Nash-Finch in immediately available funds all documented out-of-pocket fees and expenses incurred by Nash-Finch or its Affiliates in connection with the transactions contemplated by this Agreement (“Spartan Stores Expense Reimbursement”; provided, that the Spartan Stores Expense Reimbursement shall not be more than an aggregate amount equal to $10,000,000); and if (A) any Person shall have made (whether or not subsequently withdrawn) a Spartan Stores Takeover Proposal on or after the date hereof but prior to the date that this Agreement is terminated pursuant to Section 8.1(f) and (B) (1) within 12 months after the Termination Date, Spartan Stores or any of its Affiliates consummates a Spartan Stores Takeover Proposal, or (2) Spartan Stores or any of its Affiliates enters into a definitive agreement with respect to a Spartan Stores Takeover Proposal within 12 months after the Termination Date and subsequently consummates such Spartan Stores Takeover Proposal at any time thereafter (provided, that, for purposes of this Section 8.2(b)(vi), the references to “more than 15%” and “more than 20%” in the definition of “Spartan Stores Takeover Proposal” will be deemed to be references to “more than 50%.”), then Spartan Stores shall pay, or cause to be paid, to Nash-Finch, an aggregate amount equal to the Spartan Stores Termination Fee, less the amount of any Spartan Stores Expense Reimbursement previously paid to Nash-Finch.
(vii) (A) this Agreement is terminated by Spartan Stores pursuant to Section 8.1(c) or by Spartan Stores or Nash-Finch pursuant to Section 8.1(d)(i), (B) any Person shall have made (whether or not subsequently withdrawn) a Spartan Stores Takeover Proposal on or after the date hereof but prior to (1) the date that this Agreement is terminated in the case of a termination pursuant to Section 8.1(c) or (2) the Spartan Stores Shareholder Meeting in the case of a termination pursuant to Section 8.1(d)(i), and (C) (1) within 12 months after the Termination Date, Spartan Stores or any of its Affiliates consummates a Spartan Stores Takeover Proposal, or (2) Spartan Stores or any of its Affiliates enters into a definitive agreement with respect to a Spartan Stores Takeover Proposal within 12 months after the Termination Date and subsequently consummates such Spartan Stores Takeover Proposal at any time thereafter (provided, that, for purposes of this Section 8.2(a)(vii), the references to “more than 15%” and “more than 20%” in the definition of “Spartan Stores Takeover Proposal” will be deemed to be references to “more than 50%.”), then Spartan Stores shall pay, or cause to be paid, to Nash-Finch, an aggregate amount equal to the Spartan Stores Termination Fee; or
(viii) this Agreement is terminated by Spartan Stores pursuant to Section 8.1(i), then Spartan Stores shall pay, or cause to be paid, to Nash-Finch, prior to or contemporaneously with such termination, cash in an amount equal to the Spartan Stores Termination Fee (and any purported termination pursuant to Section 8.1(i) shall be void and of no force or effect unless Spartan Stores shall have made such payment).
(b) The Nash-Finch Termination Fee and Nash-Finch Expense Reimbursement, as applicable, will be paid in the aggregate to Spartan Stores by or at the direction of Nash-Finch in immediately available funds in the case of Section 8.2(a)(ii) or Section 8.2(a)(iii), upon the occurrence of the event giving rise to the obligation to make such payment.
(c) The Spartan Stores Termination Fee and Spartan Stores Expense Reimbursement, as applicable, will be paid in the aggregate to Nash-Finch by or at the direction of Spartan Stores in immediately available funds in the case of Section 8.2(a)(vi) or Section 8.2(a)(vii), upon the occurrence of the event giving rise to the obligation to make such payment.
(d) hereofEach of the parties hereto acknowledge and agree that the agreements contained in this Section 8.2are an integral part of the transactions contemplated hereby, and that without these agreements, the other party would not enter into this Agreement. Accordingly, (i) if Nash-Finch fails to pay the amounts due pursuant to this Section 8.2and, in order to obtain such payment, Spartan Stores commences a suit that results in a judgment against Nash-Finch for the event Nash-Finch Termination Fee or the Nash-Finch Expense Reimbursement, then Nash-Finch shall pay Spartan Stores its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the Nash-Finch Termination Fee or the Nash-Finch Expense Reimbursement, as applicable, from the date such payment was required to be made until the date of payment at the prime rate of Wells Fargo Bank N.A., in effect on the date such payment was required to be made and (ii) if Spartan Stores fails to pay the amount due pursuant to this Section 8.2 and, in order to obtain such payment, Nash-Finch commences a suit that results in a judgment against Spartan Stores for the Spartan Stores Termination Fee or the Spartan Stores Expense Reimbursement, then Spartan Stores shall pay Nash-Finch its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the Spartan Stores Termination Fee or the Spartan Stores Expense Reimbursement, as applicable, from the date such payment was required to be made until the date of payment at the prime rate of Wells Fargo Bank N.A., in effect on the date such payment was required to be made.
(e) On any termination of this Agreement pursuant to Section 9.1 hereof8.1, this Agreement shall terminate and forthwith become null and void and have no effectfurther force or effect (except for the provisions of Sections 6.7, without 6.8(c), and 8.2 and Article IX), and, subject to the payment of any amounts owing pursuant to this Section 8.2, there shall be no other liability on the part of any party hereto Spartan Stores or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for Nash-Finch to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10other; provided, however, that nothing contained notwithstanding anything in this Section 9.2(a) shall relieve Agreement to the contrary, no party hereto will be relieved or released from any party liability or damages arising from liability for any fraud a willful or willful intentional breach of this Agreement.
(bf) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (For the "Liquidated Amount")avoidance of doubt, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, parties acknowledge that (i) an Acquisition Proposal in no event shall have been made directly Nash-Finch be required to pay the Company's stockholders generally Nash-Finch Termination Fee or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger Nash-Finch Expense Reimbursement on more than one occasion; and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company Spartan Stores be obligated required to pay the Liquidated Amount Spartan Stores Termination Fee or the Parent/MergerCo Expenses Spartan Stores Expense Reimbursement on more than onceone occasion. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof Nash-Finch Termination Fee, Nash-Finch Expense Reimbursement, Spartan Stores Termination Fee or Spartan Stores Expense Reimbursement shall be payable by the Company to MergerCo made by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable in writing by the Company party entitled to MergerCo receive such payment or, if no such account is designated, by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.bank check. 98
(dg) Notwithstanding anything to the contrary in this AgreementAgreement (including the final sentence of Section 6.8(c), Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable proviso in accordance with Section 9.2(b9.3), in the event that the Nash-Finch Termination Fee or the Nash-Finch Expense Reimbursement (as applicable) hereofis in fact paid to Spartan Stores (or any Spartan Stores designee) when and as required under Section 8.2(a)(ii), the payment of the Liquidated Amount Nash-Finch Termination Fee or the Nash-Finch Expense Reimbursement (as applicable) shall be the sole and exclusive remedy of Spartan Stores, Merger Sub and each of their respective Affiliates against Nash-Finch, the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Nash-Finch Subsidiaries or and any of their respective assetsformer, or against any current and future Affiliates, and each of their respective directors, officers, employees, partnersshareholders, controlling persons or Representatives for any loss or damage based upon, arising out of or relating to this Agreement, the Letter Agreements or the negotiation, execution or performance hereof or thereof or the transactions contemplated hereby and thereby and none of Nash-Finch, its Subsidiaries, each of their respective former, current and future direct or indirect equityholders, controlling persons, shareholders, directors, officers, employees, agents, Affiliates, members, managers, members general or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereoflimited partners, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofassignees will have any Liability to Spartan Stores, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries Merger Sub or any of their Affiliates relating to or arising out of this Agreement or the Letter Agreements in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith, whether at law or equity, in contract, in tort or otherwise and payment of the Nash-Finch Termination Fee or the Nash-Finch Expense Reimbursement (as applicable) when in fact paid to Spartan Stores (or any Spartan Stores designee) as required by Section 8.2(a)(ii) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by, Spartan Stores, Merger Sub or any other Person in connection with this Agreement, the Letter Agreements and the transactions contemplated hereby and thereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and, only if Spartan Stores (or any Spartan Stores designee) is in fact paid the Nash-Finch Termination Fee or the Nash-Finch Expense Reimbursement (as applicable) as required by Section 8.2(a)(ii), none of Spartan Stores, Merger Sub or any other Person shall be entitled to bring or maintain any Action against Nash-Finch, its Subsidiaries and any of their respective assetsformer, or against any current and future Affiliates, and each of their respective directors, officers, employees, partnersshareholders, controlling persons or Representatives arising out of or in connection with this Agreement, the Letter Agreements, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination (provided, that in the event of payment of the Nash-Finch Expense Reimbursement as required by Section 8.2(a)(ii), this Section 8.2(g) shall not in any way limit Spartan Stores’ rights with respect to payment of the Nash-Finch Termination Fee (including Spartan Stores’ rights to enforce payment of the Nash-Finch Termination Fee) pursuant to Section 8.2(a)(ii)); provided, however, that notwithstanding anything in this Agreement to the contrary, no party hereto will be relieved or released from any liability or damages arising from fraud.
(h) Notwithstanding anything to the contrary in this Agreement (including the final sentence of Section 6.8(c), and the proviso in Section 9.3), in the event that the Spartan Stores Termination Fee or the Spartan Stores Expense Reimbursement (as applicable) is in fact paid to Nash-Finch (or any Nash-Finch designee) when and as required under Section 8.2(a)(vi), payment of the Spartan Stores Termination Fee or the Spartan Stores Expense Reimbursement (as applicable) shall be the sole and exclusive remedy of Nash-Finch and each of its Affiliates against Spartan Stores, Merger Sub and each of their respective Affiliates against Spartan Stores, Merger Sub, the Spartan Stores Subsidiaries and any of their respective former, current and future Affiliates, and each of their respective directors, officers, employees, shareholders, controlling persons or Representatives for any loss or damage based upon, arising out of or relating to this Agreement, the Letter Agreements or the negotiation, execution or performance hereof or thereof or the transactions contemplated hereby and thereby and none of Spartan Stores, Merger Sub, their respective Subsidiaries, each of their respective former, current and future direct or indirect equityholders, controlling persons, shareholders, directors, officers, employees, agents, Affiliates, members, managers, members general or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.lim
Appears in 2 contracts
Sources: Merger Agreement (Nash Finch Co), Merger Agreement (Nash Finch Co)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof7.01, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto Parent, Sub or its affiliates, trustees, directorsthe Company or their respective Subsidiaries, officers or stockholders directors, in either case, except (i) with respect to Section 5.11, this Section 7.02 and all rights Article VIII and obligations (ii) with respect to any liabilities or damages incurred or suffered by a party as a result of the willful and material breach by another party of any party hereto shall cease except for the of its representations, warranties, covenants or agreements contained set forth in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The In the event that this Agreement is terminated:
(i) by (A) Parent pursuant to Section 7.01(e) or (B) the Company pursuant to Section 7.01(f) or Section 7.01(g), then the Company shall pay to MergerCo an amount in cash equal Parent or its designee, within two (2) Business Days following the date of such termination by Parent pursuant to clause (A), or prior to or concurrently with such termination by the Company pursuant to clause (B), the Company Termination Fee; or
(ii) (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of by either Parent or the Company having wilfully breached its obligations under pursuant to Section 7.1(a)(i7.01(b) (other than following the failure to obtain a Company Required Governmental Approval or Section 7.1(a)(iiia Parent Required Governmental Approval), or (XB) by either Parent or the Company terminates this Agreement pursuant to Section 9.1(c)(i7.01(c), and (C) (1) (x) any person or group of persons shall (Y) MergerCo terminates as of the date this Agreement is terminated pursuant to Section 9.1(d)(ii7.01(b) (other than following the failure to obtain a Company Required Governmental Approval or a Parent Required Governmental Approval), in the case of the foregoing clause (Z) either A), or as of the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to Stockholder Meeting at which the Special Meeting, (i) an Acquisition Proposal Company Stockholder Approval shall not have been made directly obtained upon a vote taken thereon, in the case of the foregoing clause (B)) have publicly announced or disclosed or disclosed privately to the Company's stockholders generally ’s management or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger board of directors, and not withdrawn, a Competing Proposal, and (iiy) within nine (9) months immediately following after the date termination of such termination this Agreement, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter entered into a definitive acquisition agreement with respect thereto. Notwithstanding to a Competing Proposal and such Competing Proposal is subsequently consummated (which such Competing Proposal need not be the foregoingsame Competing Proposal, or be made by the same person or group, as the Competing Proposal described in clause (C)(1)(x)), then the Company shall pay to Parent or its designee, concurrently with the consummation of such Competing Proposal, the Company Termination Fee, or (2) (x) any person or group of persons shall (as of the date this Agreement is terminated pursuant to Section 7.01(b) (other than following the failure to obtain a Company Required Governmental Approval or a Parent Required Governmental Approval), in the case of the foregoing clause (A), or as of the Company Stockholder Meeting at which the Company Stockholder Approval shall not have been obtained upon a vote taken thereon, in the case of the foregoing clause (B)) have publicly announced or disclosed or disclosed privately to the Company’s management or board of directors, and subsequently withdrawn, a Competing Proposal, and (y) within nine (9) months after the termination of this Agreement, the Company shall have entered into a definitive acquisition agreement with respect to such Competing Proposal and such Competing Proposal is subsequently consummated (it being understood and agreed that for purposes of this Section 7.02(b)(ii), any group of persons making a Competing Proposal shall be deemed the same as any other group so long as the members of one group constitute at least 50% of the equity financing of the other group), then the Company shall pay to Parent or its designee, concurrently with the consummation of such Competing Proposal, the Company Termination Fee; provided that for purposes of this Section 7.02(b)(ii), the term “Competing Proposal” shall have the meaning assigned to such term, except that all percentages therein shall be changed to “50%”.
(c) Each of the Company, Parent and Sub acknowledges that (i) the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement and (ii) without these agreements, Parent, Sub and the Company would not enter into this Agreement. It is acknowledged and agreed that, except in the case of fraud or a willful and material breach by the Company of this Agreement, the Company Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Sub in the circumstances in which the Company Termination Fee is payable. In no event shall the Company be obligated required to pay the Liquidated Amount or the Parent/MergerCo Expenses to Parent more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the one Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement Termination Fee pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses7.02(b).
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Midamerican Energy Holdings Co /New/), Merger Agreement (Nv Energy, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement by either the Company or Parent pursuant to Section 9.1 hereof7.2, this Agreement shall will forthwith become null and void and have no further force or effect, without any liability on of the part of Parent, AcquisitionCo, the Company, or any party hereto of their respective Subsidiaries (or its affiliates, trusteesany of their respective shareholders, directors, officers officers, employees, agents, consultants or stockholders and all rights and obligations of any party hereto shall cease representatives), except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained as provided in this Section 9.2(a) 7.3, Section 5.1, Section 5.7, Section 5.12 and Article 8, which shall relieve survive any party termination thereof, and provided further that notwithstanding anything herein to the contrary none of Parent, AcquisitionCo or the Company shall be relieved or released from liability for any liabilities arising out its fraud or willful and intentional breach of this Agreement.
(b) The Company shall pay make payments to MergerCo an amount in cash equal Parent, by wire transfer of immediately available funds to such accounts as Parent may designate, if this Agreement is terminated as follows:
(A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter definedi) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates Parent shall terminate this Agreement pursuant to Section 9.1(c)(i7.2(d), then the Company shall pay the sum of $8 million (the “Company Termination Fee”) or on the second Business Day following such termination;
(Yii) MergerCo terminates if the Company shall terminate this Agreement pursuant to Section 9.1(d)(ii7.2(h), then the Company shall pay the Company Termination Fee prior to or concurrently with such termination;
(iii) or if (ZA) either the Company or MergerCo terminates party shall terminate this Agreement pursuant to Section 9.1(b)(i), if, prior to 7.2(g) and (B) at any time after the Special date hereof and at or before the date of the Company Meeting, (i) an Acquisition Proposal shall have been made directly or publicly announced or communicated to the Company's stockholders generally Company Board by any Person other than Parent and be still pending at the time of such termination or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition been withdrawn less than ten (10) days prior to the Merger date of such termination, and (iiC) within nine (9) 12 months immediately following of the date of such termination of this Agreement, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter of its Subsidiaries enters into a any definitive agreement with respect thereto. Notwithstanding the foregoingto, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For consummates, any Acquisition Proposal (provided that, for purposes of this Section 9.2subsection (iv), "Parent/MergerCo Expenses" any reference to “15% or more” in the definition of “Acquisition Proposal” shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses deemed to be reimbursed a reference to “50% or more”), then the Company shall pay the Company Termination Fee, less any amount previously paid by the Company to Parent pursuant to this Section 7.3(b), on the second Business Day following the consummation of such Acquisition Proposal; and
(iv) if (A) either party shall not exceed $1,000,000terminate this Agreement pursuant to Section 7.2(c) or Parent shall terminate this Agreement pursuant to Section 7.2(e) and (B) at any time after the date hereof and before such termination an Acquisition Proposal shall have been publicly announced by any Person other than Parent and be still pending at the time of such termination or have been withdrawn less than ten (10) days prior to the date of such termination and (C) within 12 months of the date of such termination of this Agreement, the Company or any of its Subsidiaries enters into any definitive agreement with respect to, or consummates, any Acquisition Proposal (provided that, for purposes of this subsection (v), any reference to “15% or more” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50% or more”), then the Company shall pay the Company Termination Fee, less any amount previously paid by the Company to Parent pursuant to this Section 7.3(b), on the second Business Day following the consummation of such Acquisition Proposal.
(c) Any Each of the Parties acknowledges that any amount payable pursuant to Section 7.3(b) is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent or Company in the circumstances in which such payments are due and payable and which do not involve fraud or willful and intentional breach of this Agreement, 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 Arrangement, which amount would otherwise be impossible to calculate with precision. In no event shall Parent be entitled to payment of the Liquidated Amount required by Section 9.2(b) hereof Company Termination Fee on more than one occasion and in no event shall be payable by the Parent, Company to MergerCo by wire transfer any of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages their respective Affiliates or any other claim which Person have any right to bring or maintain any other claim, action or proceeding against Company, Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any Affiliates arising out of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and of the Transactions and shall constitute transactions contemplated hereby or any matters forming the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree thatbasis for such termination, in light each case other than arising out of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination fraud or willful and intentional breach of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Tesco Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent or Purchaser as provided in Section 9.1 hereof8.1, (A) this Agreement shall forthwith become null and void and have no effect, without any liability or obligation on the part of any party hereto Parent, Purchaser or its affiliatesthe Company, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained other than as provided in Section 7.4, the third sentence of Section 7.16 9.1 and Articles 9 and 10; provided, however, except that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement and (B) unless this Agreement has been terminated pursuant to Section 8.1(c)(ii) or Section 8.1(d)(ii), Purchaser shall terminate the Offer without the purchase of Shares thereunder.
(b) The Company shall pay to MergerCo an amount in cash equal to If (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo Parent or Purchaser terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii8.1(d)(i), or the Company terminates this Agreement pursuant to Section 8.1(c)(i) or (XB) the Company terminates this Agreement pursuant to Section 9.1(c)(i8.1(c)(ii) or (Y) MergerCo Parent or Purchaser terminates this Agreement pursuant to Section 9.1(d)(ii8.1(d)(ii) or 8.1(d)(iii) and in the case of a termination under Section 8.1(c)(ii), 8.1(d)(ii) or 8.1(d)(iii) (Zx) either at any time after the Company or MergerCo terminates date of this Agreement pursuant to Section 9.1(b)(i), if, and prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been made directly publicly announced or otherwise publicly communicated to the Company's stockholders of the Company generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition and (y) prior to the Merger and (ii) within nine (9) months immediately following the date first anniversary of such termination termination, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingto an Acquisition Proposal or an Acquisition Proposal is consummated, in no event shall then the Company shall pay to Parent, or cause to be obligated to pay paid, (1) in the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes case of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions a termination of this Agreement and any other agreements by Parent or other documents relating Purchaser pursuant to Section 8.1(d)(i), not later than one business day following such termination, (2) in the Transactions, arranging financing, conducting due diligence and other activities related to case of a termination of this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
pursuant to Section 8.1(c)(i), prior to such termination, or (c3) Any payment in the case of the Liquidated Amount required by Section 9.2(b) hereof shall be payable a termination of this Agreement by the Company pursuant to MergerCo Section 8.1(c)(ii) or by Parent or Purchaser pursuant to Section 8.1(d)(ii) or 8.1(d)(iii), not later than one business day following the entering into of a definitive agreement with respect to, or the consummation of, an Acquisition Proposal prior to the first anniversary of such termination, as applicable, a termination fee, in cash, by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything , in an amount equal to the contrary sum of (x) $6 million plus (y) out-of-pocket expenses incurred by Parent or Purchaser exclusively in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, connection with respect to any termination of the transactions contemplated by this Agreement pursuant not to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof exceed $500,000 in circumstances where the Liquidated Amount and aggregate (such sum is referred to herein as the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b"Termination Fee"), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (GRC International Inc), Merger Agreement (At&t Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to as provided in Section 9.1 hereof, and subject to the provisions of Section 10.1 hereof, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto or its affiliatesof the Parties, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained (i) as set forth in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount 9.2 and in cash equal to (A) $5,000,000 (the "Liquidated Amount")Sections 4.10, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)4.16, or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i)5.9, if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger 5.12 and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) 10.3 hereof, and (ii) nothing herein shall be in full and complete satisfaction relieve any Party from liability for any willful breach hereof.
(b) If (i) this Agreement (A) is terminated by the Company pursuant to Section 9.1(f) hereof, or the Company or Brekford pursuant to Section 9.1(g) hereof because of any and all damages arising the failure to obtain the Brekford Stockholders’ Approval, or (B) is terminated as a result of Brekford’s material breach of Section 7.2 hereof which is not cured within thirty (30) days after notice thereof to Brekford, and (ii) at the foregoingtime of such termination there shall have been an Acquisition Proposal involving Brekford or any of its subsidiaries (whether or not such offer shall have been rejected or shall have been withdrawn prior to the time of such termination), Brekford shall pay to the Company a termination fee of $250,000 (the “Termination Fee”). Except for nonpayment The Termination Fee payable under this Section 9.2(b) shall be payable in cash at the date of termination.
(c) Brekford agrees that the agreements contained in Section 9.2(b) above are an integral part of the amounts set forth in transactions contemplated by this Agreement and constitute liquidated damages and not a penalty. If Brekford fails to promptly pay to the Company any fee due under such Section 9.2(b), Parent Brekford shall pay the costs and MergerCo hereby agree thatexpenses (including reasonable legal fees and expenses) in connection with any action, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where including the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages filing of any kindlawsuit or other legal action, includingtaken to collect payment, without limitation, consequential, indirect or punitive damagestogether with interest on the amount of any unpaid fee at the publicly announced prime rate as reported by The Wall Street Journal’s bank survey from the date such fee was required to be paid.
Appears in 2 contracts
Sources: Merger Agreement (KeyStone Solutions, Inc.), Merger Agreement (Novume Solutions, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereofthis Article IX, the Merger shall be deemed abandoned and this Agreement shall forthwith become null and void and have no effectvoid, without any liability on the part of any party hereto or its affiliateshereto, trusteesexcept as expressly provided herein, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful breach of this AgreementAgreement (other than as set forth in Sections 9.2(b)(i), (ii) and (iii)).
(bi) The If the Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates have terminated this Agreement pursuant to Section 9.1(c)(i) 9.1(d)(iv), or (Y) MergerCo terminates Celiant shall have terminated this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i9.1(e)(iii), ifthen in any such case, prior to the Special MeetingCeliant shall promptly, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, but in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) two business days after the date of such termination, pay the Company a termination fee of Fifty Million Dollars ($50,000,000); it being agreed by the parties that anything in this Agreement to the contrary notwithstanding, upon payment of such amount to the Company, all obligations and liabilities to the Company related to or arising under this Agreement (or otherwise contemplated hereby) by Celiant or any of its Stockholders, affiliates, successors or assigns, if any, shall automatically be released and the Company agrees that it shall not make any claim in such regard.
(ii) If Celiant shall have terminated this Agreement pursuant to Section 9.1(e)(iv)(A) or (B), then the Company shall promptly, but in the case of clause (Z) thereof, within three (3) no event later than two business days after the date of entering into such definitive agreementtermination, pay Celiant a termination fee of Fifty Million Dollars ($50,000,000); it being agreed by the parties that anything in this Agreement to the contrary notwithstanding, upon payment of such amount to Celiant, all obligations and liabilities to Celiant related to or arising under this Agreement (or otherwise contemplated hereby) by the Company or any of its affiliates, successors or assigns, if any, shall automatically be released and Celiant agrees that it shall not make any claim in such regard.
(iii) in If the case of clause (X) thereof, prior to terminating Company shall have terminated this Agreement pursuant to Section 9.1(c)(i9.1(d)(iii), then, if the Company so elects within five (5) hereofbusiness days of such termination, Celiant shall promptly, but in any no event later than two business days after the date of such case to an account designated by MergerCo. Any payment election, pay the Company a termination fee of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable Fifty Million Dollars ($50,000,000), it being agreed by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding parties that anything in this Agreement to the contrary in this Agreementnotwithstanding, Parent upon payment of such amount to the Company, all obligations and MergerCo hereto expressly acknowledge and agree that, with respect liabilities to any termination of the Company related to or arising under this Agreement pursuant to Section 9.1(c)(i(or otherwise contemplated hereby) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company by Celiant or any of its Stockholders, affiliates, successors or assigns, if any, shall automatically be released and the Company Subsidiaries or agrees that it shall not make any of their respective assetsclaim in such regard; provided, or against any of their respective directorsfurther, officers, employees, partners, managers, members or shareholders, with respect that if the Company does not elect to require Celiant to pay a termination fee pursuant to this Agreement and the Transactions and Section 9.2(b)(iii), Celiant shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon not be relieved from any termination liability for any breach of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Andrew Corp), Merger Agreement (Andrew Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either ICBC or SIB as provided in Section 9.1 hereof9.1, this Agreement shall forthwith become null and void and have no effect, without and none of ICBC, SIB, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability on the part of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Sections 7.2(b), directors9.2, officers or stockholders and all rights 10.2 shall survive any termination of this Agreement and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, neither ICBC nor SIB shall relieve be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful breach of any provision of this Agreement.
(b) The Company SIB shall pay ICBC, by wire transfer of immediately available funds, the sum of $58,960,000 (the "Termination Fee") if this Agreement is terminated as follows:
(i) if this Agreement is terminated by ICBC pursuant to MergerCo an amount in cash equal to Sections 9.1(f) or 9.1(h), then SIB shall pay the entire Termination Fee on the second Business Day following such termination; and
(ii) if this Agreement is terminated by (A) $5,000,000 (the "Liquidated Amount"ICBC pursuant to Section 9.1(d), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) by either ICBC or Section 7.1(a)(iii), or (X) the Company terminates this Agreement SIB pursuant to Section 9.1(c)(i) 9.1(e), due to a failure to receive the Required SIB Vote or (YC) MergerCo terminates this Agreement by either ICBC or SIB pursuant to Section 9.1(d)(ii9.1(c) or (Z) either and at the Company or MergerCo terminates time of such termination, no vote of the stockholders of SIB contemplated by this Agreement pursuant to Section 9.1(b)(i)at the SIB Stockholders Meeting shall have occurred, if, prior to the Special Meeting, (i) and in any such case an Acquisition Proposal with respect to SIB shall have been publicly announced or otherwise communicated or made directly known to the Company's stockholders generally senior management or Board of Directors of SIB (or any person shall have publicly announced announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iiProposal) within nine (9) months immediately following at any time after the date of this Agreement and on or prior to the date of the SIB Stockholders Meeting, in the case of clause (B), or the date of termination, in the case of clauses (A) or (C), then SIB shall pay (x) an amount equal to 1/3 of the Termination Fee on the second Business Day following such termination, and (y) if within 12 months after such termination the Company and the party who shall have made such Acquisition Proposal SIB or any affiliate thereof enter of its Subsidiaries enters into a definitive agreement with respect thereto. Notwithstanding the foregoingto, in no event or consummates, an Acquisition Proposal, then SIB shall the Company be obligated to pay the Liquidated Amount remainder of the Termination Fee on the date of such execution or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000consummation.
(c) Any payment ICBC shall pay SIB, by wire transfer of immediately available funds, the Termination Fee if this Agreement is terminated as follows:
(i) if this Agreement is terminated by SIB pursuant to Sections 9.1(g) or 9.1(i), then ICBC shall pay the entire Termination Fee on the second Business Day following such termination; and
(ii) if this Agreement is terminated by (A) SIB pursuant to Section 9.1(d), (B) by either ICBC or SIB pursuant to Section 9.1(e), due to a failure to receive the Required ICBC Vote or (C) by either ICBC or SIB pursuant to Section 9.1(c) and at the time of such termination, no vote of the Liquidated Amount required stockholders of ICBC contemplated by this Agreement at the ICBC Stockholders Meeting shall have occurred, and in any such case an Acquisition Proposal with respect to ICBC shall have been publicly announced or otherwise communicated or made known to the senior management or Board of Directors of ICBC (or any person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement and on or prior to the date of the ICBC Stockholders Meeting, in the case of clause (B), or the date of termination, in the case of clauses (A) or (C), then ICBC shall pay (x) an amount equal to 1/3 of the Termination Fee on the second Business Day following such termination, and (y) if within 12 months after such termination ICBC or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, an Acquisition Proposal, then ICBC shall pay the remainder of the Termination Fee on the date of such execution or consummation.
(d) Any Termination Fee or portion thereof that becomes payable pursuant to Section 9.2(b) hereof or (c) shall be payable by the Company to MergerCo paid by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company party entitled to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesthereof.
(de) Notwithstanding anything to SIB and ICBC agree that the contrary agreement contained in paragraphs (b) and (c) above is an integral part of the transactions contemplated by this Agreement, Parent that without such agreement by each party the other party would not have entered into this Agreement, and MergerCo hereto expressly acknowledge and agree that, with respect that such amounts do not constitute a penalty. If a party fails to any termination of this Agreement pursuant to Section 9.1(c)(ipay the amounts due under paragraph (b) or Section 9.1(d)(ii(c) hereof, or Section 9.1(b)(iabove within the time periods specified in such paragraphs (b) or Section 9.1(d)(i(c), such party shall pay the costs and expenses (including reasonable legal fees and expenses) hereof incurred by the other party in circumstances where connection with any action, including the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereoffiling of any lawsuit, the taken to collect payment of such amounts, together with interest on the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason amount of any such proposed or 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 termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagespayment.
Appears in 2 contracts
Sources: Merger Agreement (Staten Island Bancorp Inc), Merger Agreement (Independence Community Bank Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the 8.12.1 Upon termination of this Agreement pursuant to Section 9.1 hereof8.10, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability further obligations or liabilities on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10parties hereto; provided, howeverthat (a) the obligation of the Company to pay the Expense Reimbursement pursuant to Section 2.3 and to pay the Backstop Commitment Premium if payable pursuant to Sections 2.2.3 and/or 8.12.2 shall survive the termination of this Agreement and shall remain in full force and effect until such obligation has been satisfied (except as otherwise set forth herein), that nothing contained (b) the provisions set forth in this Section 9.2(a8.12, Section 8.13, Section 8.14, Section 8.15, Section 8.17, Section 8.18, Section 8.19 and Section 8.20 shall survive the termination of this Agreement in accordance with their terms and (c) subject to Section 8.14, nothing in this Section 8.12 shall relieve any party Party from liability for any its intentional fraud or any willful or intentional breach of this Agreement occurring prior to the date of termination of this Agreement. For purposes of this Agreement, “willful or intentional breach” means a breach of this Agreement that is a consequence of an intentional act undertaken by the breaching party with the knowledge that the taking of such act would, or would reasonably be expected to, cause a breach of this Agreement. For the avoidance of doubt, the failure to timely pay the Purchase Price by any of the Backstop Parties in accordance with the terms of this Agreement (and subject to the applicable cure period set forth in Section 8.10.3) shall constitute a willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates 8.12.2 If this Agreement is terminated by the Required Backstop Parties under Section 9.1(d)(i) as a result of 8.10.4, the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)shall, or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following promptly after the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingtermination, in no event shall the Company be obligated to pay the Liquidated Amount Backstop Commitment Premium; provided that such fee is payable pursuant to Section 2.2.3, entirely in cash to each Backstop Party or the Parent/MergerCo Expenses more than onceits designee(s). For purposes of this Section 9.2, "Parent/MergerCo Expenses" The Backstop Commitment Premium shall be an amount equal (to the reasonable out-of-pocket costs A-29 120 and extent payable in cash hereunder) pursuant to an Approval Order, constitute allowed administrative expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(bDebtors’ estates under sections 503(b) hereof and 507 of the Bankruptcy Code and shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) Debtors as provided in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment without further order of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesBankruptcy Court.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Backstop Commitment Agreement (Halcon Resources Corp), Backstop Commitment Agreement
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to in accordance with Section 9.1 hereof9.1, this Agreement shall forthwith thereafter become null and void and have no effect, without any liability on the part of any party hereto and no Party or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assetsAffiliates, or against any of their respective directors, officers, employees, partners, managers, members members, stockholders or shareholders, with respect to this Agreement and the Transactions and other Representatives shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect have any Liability to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) other Party or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assetsAffiliates, or against any of their respective directors, officers, employees, partners, managers, members members, stockholders or shareholdersother Representatives under or with respect to this Agreement except (A) that this Section 9.2, Section 5.1 (“Information and Documents”), Section 5.17 (“Confidentiality”), Section 10.1 (“Notices”), Section 10.3 (“Amendment; Waiver”), Section 10.4 (“Assignment”), Section 10.5 (“Entire Agreement”), Section 10.6 (“Parties in Interest”), Section 10.7 (“Public Disclosure”), Section 10.8 (“Return of Information”), Section 10.9 (“Expenses”), Section 10.11 (“Governing Law; Jurisdiction; Waiver of Jury Trial; Limitation of Liability”), Section 10.12 (“Counterparts”), Section 10.13 (“Headings”), Section 10.14 (“No Strict Construction”), Section 10.15 (“Severability”), Section 10.16 (“Release”) and Section 10.18 (“No Recourse”) which shall survive the termination of this Agreement and (B) that (i) subject to Sections 1.1(b) and 1.1(c), the Liability of any Party for fraud or willful or intentional breach by such Party of the representations, warranties, covenants or agreements of such Party set forth in this Agreement occurring prior to the termination of this Agreement shall survive the termination of this Agreement and (ii) in the event of any termination of this Agreement and a related action for fraud or breach of contract (including in any action to recover the Purchaser Fee by Seller), the prevailing Party shall be reimbursed by the other Parties to the action for reasonable attorneys’ fees and expenses relating to such action, but in no event shall any Party be liable for punitive damages hereunder or with respect thereto.
(b) Notwithstanding the foregoing, in the event this Agreement is terminated:
(i) by Purchaser or Seller pursuant to Section 9.1(b) or Section 9.1(c) (but for purposes of Section 9.1(c), only if such Order is attributable to an Antitrust Law) and, in each case, at the time of such termination all of the conditions to Closing set forth in Article VI have been satisfied or waived (other than (A) the Antitrust Conditions and (B) those other conditions that, by their nature, cannot be satisfied until the Closing Date, but would be satisfied if the Closing Date were the date of such termination), or
(ii) by Seller pursuant to Section 9.1(e) or Section 9.1(f), then Purchaser shall as promptly as reasonably practicable and, in any event, within two (2) Business Days of such termination, make a payment in cash to Seller in an amount equal to $210,000,000 (the “Purchaser Fee”). The Parties acknowledge and agree that in the event this Agreement is terminated in the circumstances described in this Section 9.2(b), Purchaser shall not be responsible for paying Seller or its Affiliates any amounts in excess of an amount equal to the Purchaser Fee (and the expenses, if any, contemplated by clause (B)(ii) of Section 9.2(a)).
(c) The Parties acknowledge that the agreements contained in this Section 9.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. Notwithstanding anything to the contrary in this Agreement, if Purchaser fails to effect the Closing when required by Section 2.11(a) for any or no reason or otherwise breaches this Agreement in any way (whether willfully, intentionally, unintentionally or otherwise) prior to the Closing or fails to perform hereunder in any way (whether willfully, intentionally, unintentionally or otherwise) prior to the Closing, then, (i) Seller’s, the Seller Entities’, the Conveyed Companies’ and their Affiliates’ sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise) against Purchaser, its Affiliates and any of their respective former, current or future directors, officers, employees, direct or indirect equityholders, controlling persons, partners, general or limited partners, stockholders, incorporators, Affiliates, Financing Sources, attorneys, representatives, agents, successors or assignees or any former, current or future director, officer, employee, direct or indirect equityholder, controlling person, partner, general or limited partner, manager, member, stockholder, incorporator, Affiliate, attorney, representative, agent, successor or assignee of any of the foregoing (collectively, the “Purchaser Related Parties”) for any breach, loss or damage shall be (A) the right to terminate this Agreement and receive payment of the Purchaser Fee (and the expenses, if any, contemplated by clause (B)(ii) of Section 9.2(a)) as and only to the extent provided by Section 9.2(b), or (B) the right of Seller to seek to enforce the obligations of Purchaser by a decree of specific performance and to seek temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of the obligations of Purchaser pursuant to this Agreement as and only to the extent expressly permitted by Section 10.17(b) and (ii) except as provided in the immediately foregoing clause (i), none of the Purchaser Related Parties will have any Liability or other obligation (in each case whether absolute, accrued, contingent, fixed or otherwise) to the Seller or any of its Affiliates or Representatives relating to or arising out of this Agreement, or the Financing Commitments or in respect of any other agreement, document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, through Purchaser or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Purchaser or against any other Purchaser Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or other applicable Law, or otherwise. The Parties hereto acknowledge and agree that in no event will Purchaser be required to pay the Purchaser Fee on more than one occasion. Upon termination of this Agreement by the Seller and the receipt by Seller of the Purchaser Fee (and the expenses, if any, contemplated by clause (B)(ii) of Section 9.2(a)), none of the Purchaser Related Parties shall have any further Liability or other obligation to the Seller or any of its Affiliates or Representatives relating to or arising out of this Agreement, the Financing Commitments or in respect of any other Transaction Document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, and none of the Purchaser Related Parties shall have any further Liability or other obligation to the Seller or any of its Affiliates or Representatives relating to or arising out of this Agreement or the transactions contemplated hereby. In no event shall Seller, the Seller Entities or the Conveyed Companies be entitled to seek the remedy of specific performance of this Agreement prior to the Closing other than solely under the specific circumstances set forth in Section 10.17(b). Without limiting the obligations of the Financing Sources under the Financing Agreements, Seller acknowledges and agrees that no Financing Sources shall have any liability or obtain obligation to the Seller or any of its Affiliates or Representatives in connection with this Agreement and the other damages Transaction Documents if such Financing Source breaches or fails to perform (whether willfully, intentionally, unintentionally or otherwise) any of its obligations under the Financing Agreements.
(d) Nothing in this Section 9.2 shall limit (i) prior to the termination of this Agreement in accordance with its terms, the right of Seller to seek to enforce the obligations of Purchaser by a decree of specific performance and to seek temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any kindof the obligations of Purchaser pursuant to this Agreement as and only to the extent expressly permitted by Section 10.17(b), including(ii) following the termination of this Agreement in accordance with its terms, without limitationthe right of Seller to receive the Purchaser Fee to the extent expressly provided by Section 9.2(b) (and the expenses, consequentialif any, indirect contemplated by clause (B)(ii) of Section 9.2(a)) or punitive damages(iii) Seller’s rights under the Confidentiality Agreement or the CT Confidentiality Agreement.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto or its affiliateshereto, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained as provided in Section 7.46.4(b), the third sentence of Section 7.16 6.9, this Section 8.2, Section 8.3 and Articles 9 ARTICLE IX, which shall survive such termination. The parties acknowledge and 10; provided, however, agree that nothing contained in this Section 9.2(a) 8.2 shall relieve any party from liability for any fraud or willful breach of this Agreementbe deemed to affect their right to specific performance under Section 9.10.
(b) The In the event that:
(i) this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii) or by Parent pursuant to Section 8.1(e)(ii), then the Company shall pay $1,585,000 (the “Company Termination Fee”) to MergerCo an amount Parent, at or prior to the time of termination in cash equal the case of a termination pursuant to Section 8.1(d)(ii) or as promptly as reasonably practicable in the case of a termination pursuant to Section 8.1(e)(ii) (and, in any event, within two business days following such termination), payable by wire transfer of same day funds; or
(ii) this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(c) or Section 8.1(f) and (A) $5,000,000 (at any time after the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates date of this Agreement under Section 9.1(d)(i) as and prior to the taking of a result vote to adopt this Agreement at the Stockholders Meeting or any postponement or adjournment thereof an Acquisition Proposal that the Board of Directors of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant has determined to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal be credible shall have been made directly to the Company's ’s stockholders generally or any person shall have publicly announced an intention to make an Acquisition Proposal, or an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made otherwise become publicly known, and in each case such Acquisition Proposal or any affiliate thereof enter into shall have not been withdrawn prior to such taking of a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated vote to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with adopt this Agreement and the Transactions(B) within six months after such termination, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any have consummated any Acquisition Proposal, then, in any such event, the Company shall pay to Parent the Company Termination Fee, such payment to be made upon the earlier of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo entering into an agreement providing for, or consummating, such Acquisition Proposal, by wire transfer of same day funds. For the purpose of this Section 8.2(b)(ii), all references in the definition of the term Acquisition Proposal to "15% or more” will be deemed to be references to “more than 40%”; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(d)(i), then Parent shall pay the Company a fee of $2,000,000 (the “Parent Termination Fee”) in immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) no later than two business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable termination by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Company. Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect the Company’s right to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the receive payment of the Liquidated Amount and Parent Termination Fee pursuant to this Section 8.2(b)(iii) or the Parent/MergerCo Expenses guarantee thereof pursuant to the Guaranty shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any exclusive remedy of the Company Subsidiaries and its subsidiaries against Parent, Merger Sub, the Guarantors or any of their respective assets, or against any of their respective directors, officers, employeesstockholders, partners, managersmembers, members directors, officers or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon agents for any termination of this Agreement pursuant to Section 9.1(c)(i) loss or Section 9.1(d)(ii) hereof, damage suffered or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising incurred as a result of the foregoing. Except for nonpayment failure of the amounts set forth in Section 9.2(b)Merger to be consummated and any breach or alleged breach by any of them of this Agreement.
(c) Each of the Company, Parent and MergerCo hereby agree that, upon any termination Merger Sub acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where Agreement. In the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against that the Company or any of shall fail to pay the Company Subsidiaries or Termination Fee when due, the Company shall reimburse Parent for all reasonable costs and expenses actually incurred by the Parent (including reasonable fees and expenses of counsel) in connection with any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and action (B) be entitled to seek or obtain any other damages including the filing of any kindlawsuit) taken to collect payment of such amounts. In the event that Parent shall fail to pay the Parent Termination Fee when due, including, without limitation, consequential, indirect or punitive damagesthe Parent shall reimburse the Company for all reasonable costs and expenses actually incurred by the Company (including reasonable fees and expenses of counsel) in connection with any action (including the filing of any lawsuit) taken to collect payment of such amounts.
Appears in 2 contracts
Sources: Merger Agreement (Jekogian Iii Nickolas W), Merger Agreement (Wilshire Enterprises Inc)
Effect of Termination. (a) Subject Upon termination of this Agreement pursuant to Sections 9.2(bthis Article X, this Agreement shall forthwith become void and of no force or effect and there shall be no further obligations or liabilities on the part of the Parties; provided that (i) subject to Section 2.3(b), the obligations of the Company Parties to pay the Expense Reimbursement pursuant to Article III, to satisfy their indemnification obligations pursuant to Article IX, and, subject to the occurrence of a Termination Premium Payment Event, to pay the Backstop Commitment Termination Premium in Cash pursuant to Section 3.2 shall survive the termination of this Agreement and shall remain in full force and effect, in each case, until such obligations have been satisfied, and (dii) hereofthis Section 10.6 and Article XI shall survive the termination of this Agreement in accordance with their terms.
(b) Notwithstanding anything to the contrary contained herein, if this Agreement is terminated pursuant to (x) Section 7.1 or Section 7.2, (y) Section 10.3(a), Section 10.3(b) Section 10.3(f), Section 10.3(g) (provided that the Required Backstop Parties have not extended or have stated in writing that they are willing to extend the Outside Date beyond such date), or Section 10.3(i), or (z) Section 10.4(a) , Section 10.4(b) Section 10.4(d, Section 10.4(e) Section 10.4(f), Section 10.4(g) or Section 10.4(h), then, as promptly as practicable and in any event no later than two (2) Business Days following such termination, the Company Parties shall pay or cause to be paid to the Backstop Parties that are not (x) Defaulting Backstop Parties or (y) Backstop Parties whose breach of this Agreement caused its termination, (i) solely in the event of the occurrence of a Backstop Termination Premium Payment Event, the Backstop Commitment Termination Premium (pro rata in accordance with their Backstop Commitment Percentages, excluding the Backstop Commitment Percentage of any Defaulting Backstop Party); provided that, notwithstanding the foregoing and anything to the foregoing herein, the Backstop Commitment Premium shall not be payable to any of the Backstop Parties (including, for avoidance, a Backstop Party who is not a Defaulting Backstop Party) in the event of any Backstop Party Default unless all of the Available Shares are purchased and actually funded by one or more Replacement Backstop Parties in accordance with Section 2.3, and (ii) any filing fees or other similar costs, fees or expenses associated with the matters contemplated by Section 6.14, as well as the Expense Reimbursement pursuant to Section 3.3 (in each case, excluding any such fees or other expenses referenced in this clause (ii) of any (A) Defaulting Backstop Party or (B) Backstop Party whose breach of this Agreement caused its termination); provided that any invoices shall not be required to contain individual time detail. Subject to Section 11.10, nothing in this Section 10.6 shall relieve any Party from liability for its breach of this Agreement.
(c) The automatic stay applicable under section 362 of the Bankruptcy Code shall not prohibit a Party from taking any action or delivering any notice necessary to effectuate the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) the terms hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Backstop Commitment Agreement (Invacare Corp), Backstop Commitment Agreement (Invacare Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement by either Parent or the Company prior to the Acceptance Date pursuant to the provisions of Section 9.1 hereof6.01, this Agreement shall forthwith become null void, and void and have there shall be no effect, without any liability or further obligation on the part of any party hereto the Company, Parent, Merger Sub or its affiliates, trustees, directors, their respective officers or stockholders and all rights and obligations of any party hereto shall cease directors (except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained as set forth in this Section 9.2(a) 7.01 and in Sections 4.11 and 7.05, all of which shall survive the termination). Nothing in this Section 7.01 shall relieve any party from liability for any fraud willful or willful material breach of any covenant or agreement of such party contained in this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates event that this Agreement under Section 9.1(d)(iis terminated (i) as a result of by the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i6.01(g) or (Y) MergerCo terminates this Agreement by Parent pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i6.01(h), if, and prior to any such termination (but after the Special Meeting, date hereof) (iA) an Acquisition Proposal shall have been made directly to the Company's stockholders generally Company or its Subsidiary or any person of its stockholders and shall have been announced publicly or (B) any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal or solicited proxies or consents in opposition with respect to the Merger and Company or its Subsidiary, or (ii) by Parent pursuant to Section 6.01(f)(i), and in each case within nine (9) 12 months immediately following the date of after any such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement (which is reasonably capable of being consummated within 18 months of such termination) with respect thereto. Notwithstanding to or consummates a transaction contemplated by such Acquisition Proposal, then the foregoingCompany shall promptly, but in no event later than two days after the date of entering into (or, if earlier, consummating) such transaction, pay Parent a termination fee of $1,750,000 (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 Company be obligated to pay reasonable, documented charges and expenses, including those of the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2Paying Agent, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo or Merger Sub in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained transactions contemplated by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating up to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions a maximum amount of $500,000 (collectively, the "Parent/MergerCo Reimbursable Expenses") (upon receipt of reasonable documentation with respect thereto); provided, however, that the aggregate amount in each case payable by wire transfer of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000same day funds.
(c) Any payment of In the Liquidated Amount required by Section 9.2(bevent that this Agreement is terminated (i) hereof shall be payable by the Company pursuant to MergerCo Section 6.01(e) or by wire transfer of immediately available funds (i) Parent pursuant to Section 6.01(f)(ii), the Company shall, in the case of clause (W) termination by the Company, prior to or (Y) thereofconcurrently with such termination, within three (3) business and in the case of termination by Parent, promptly but in no event later than two days after the date of such termination, (ii) pay Parent the Termination Fee and in the each case of clause (Z) thereofshall promptly, within three (3) business but in no event later than two days after being notified of such by Parent, pay Parent the date Reimbursable Expenses (upon receipt of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereofreasonable documentation with respect thereto), in any such each case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensessame day funds.
(d) Notwithstanding anything to The Company acknowledges that the contrary agreements contained in Section 7.01(b) and (c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and MergerCo hereto expressly acknowledge and agree thatMerger Sub would not enter into this Agreement; accordingly, with respect if the Company fails to any termination of this Agreement promptly pay the amount due pursuant to Section 9.1(c)(i7.01(b) or Section 9.1(d)(ii) hereof(c), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof and, in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereoforder to obtain such payments, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert Merger Sub commences a suit which results in a judgment against the Company or any of for the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts fee set forth in Section 9.2(b7.01(b) or (c), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant the Company shall pay to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo Merger Sub its costs and expenses (Aincluding attorneys' fees) seek to obtain any recovery or judgment against in connection with such suit, together with interest on the Company or any amount of the Company Subsidiaries or any fee at the prime rate of their respective assetsBank of America, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) N.A. in effect on the date such payment was required to be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmade.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Pharmaceutical Inc/De), Merger Agreement (Matrix Pharmaceutical Inc/De)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof12.1, this Agreement (other than with respect to the last sentence of Section 8.2, Section 9.2, this Section 12.2 and Article XV, which shall forthwith continue in effect) shall thereafter become null and void and have no effect, without any liability on the part of any party hereto or its affiliatesAffiliates or Representatives in respect thereof, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall herein will relieve any party from liability for any fraud or willful breach of this AgreementAgreement or any other Transaction Document.
(b) The Company If after the date of this Agreement:
(i) Buyer shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates terminate this Agreement pursuant to Section 9.1(c)(i12.1(g); or
(ii) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (iA) an Acquisition Proposal shall have been made directly to Parent or the Company, or any Person shall have announced (or otherwise made known to the Company's stockholders generally board of directors of Parent) an intention (whether or any person not conditional) to make an Acquisition Proposal, and (B) following the occurrence of an event described in the preceding clause (A), this Agreement shall have publicly announced an been terminated by Buyer or Parent and the Company pursuant to Section 12.1(b) or Section 12.1(d), and (C) within twelve (12) months of the date this Agreement is terminated as described in the preceding clause (B), Parent or the Company enters into one or more definitive acquisition agreements with respect to, or consummates a transaction contemplated by, any Acquisition Proposal then, in any such event under clause (i) or solicited proxies or consents in opposition to the Merger and (ii) within nine of this Section 12.2(b), Parent shall promptly, but in no event later than one business day after (9A) months immediately following in the case of clause (i), the date of such termination or (B) in the case of clause (ii), the date Parent or the Company and the party who shall have made enters into such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingto or consummates such Acquisition Proposal), in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2Buyer, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment Buyer, an amount equal to the sum of $500,000 plus an amount equal to the Parent/MergerCo sum of Buyer Expenses, provided that such amount payable to Buyer in respect of Buyer Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesnot exceed $250,000.
(dc) Notwithstanding anything to The parties acknowledge that the contrary agreements contained in this Section 12.2 are an integral part of the transactions contemplated by this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect without these agreements, Buyer would not enter into this Agreement; accordingly, if Parent fails promptly to pay any termination of this Agreement amount due pursuant to this Section 9.1(c)(i) or Section 9.1(d)(ii) hereof12.2, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof and, in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable order to obtain such payment, Buyer commences a suit which results in accordance with Section 9.2(b) hereof, a judgment against Parent for the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in this Section 9.2(b)12.2, Parent shall pay to Buyer its costs and MergerCo hereby expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts payable pursuant to this Section 12.2 from the date such payment is required to be made until the date such payment is actually made (calculated based on actual days elapsed in a 365-day year) at a rate of 10% per annum. The parties agree thatthat any remedy or amount payable pursuant to this Section 12.2 shall not preclude any other remedy or amount payable hereunder, upon and shall not be an exclusive remedy, for any termination breach of any provision of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (Alanco Technologies Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement and the abandonment of the Merger pursuant to Section 9.1 hereofthis Article VIII, this Agreement shall forthwith become null and void and have of no effect, without effect with no liability to any liability Person on the part of any party hereto (or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10its Representatives); provided, however, and notwithstanding anything in the foregoing to the contrary, that nothing contained in this Section 9.2(a(i) except as otherwise provided herein, no such termination shall relieve any party from hereto of any liability for any fraud damages to the other party hereto resulting from willful and intentional breach of this Agreement and (ii) the provisions set forth in this Section 8.5, Section 8.6 and Article IX and the Confidentiality Agreement shall survive the termination of this Agreement. For purposes of this Agreement, “willful and intentional breach” shall mean a material breach that is a consequence of an omission by, or willful act undertaken by or caused by, the breaching party with the actual knowledge that the omission or taking or causing of such act would, or would reasonably be expected to, cause a breach of this Agreement.
(b) The In the event that:
(i) (x) (1) before obtaining the Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount")Stockholder Approval, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under is terminated pursuant to Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i8.2(a) or Section 7.1(a)(iii)8.4(e) and any Person shall have made and publicly disclosed a bona fide Takeover Proposal after the date of this Agreement but prior to such termination, and such Takeover Proposal shall not have been publicly withdrawn prior to such termination or (X2) the Company terminates this Agreement is terminated pursuant to Section 9.1(c)(i8.4(b) or (Y) MergerCo terminates and any Person shall have made and publicly disclosed a bona fide Takeover Proposal after the date of this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, but prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger such termination and (iiy) within nine (9) twelve months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter entered into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount such Takeover Proposal and such Takeover Proposal or the Parent/MergerCo Expenses more than once. For a Takeover Proposal resulting from such initial Takeover Proposal is consummated (provided that for purposes of this Section 9.2, "Parent/MergerCo Expenses" clause (y) the references to “20%” in the definition of “Takeover Proposal” shall be an amount equal deemed to the reasonable out-of-pocket costs A-29 120 and expenses incurred be references to “50%”);
(ii) this Agreement is terminated by Parent and MergerCo in connection with pursuant to Section 8.4(a), (c) or (d); or
(iii) this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed is terminated by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b8.3(a), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.,
Appears in 2 contracts
Sources: Merger Agreement (Sealy Corp), Merger Agreement (Tempur Pedic International Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto hereto, except with respect to Section 6.4(b), this Section 8.2, Section 8.3, or its affiliatesArticle IX, trustees, directors, officers or stockholders and all rights and obligations of any party hereto which shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10survive such termination; provided, however, that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud willful or willful intentional material breach of this Agreementhereof.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount")Parent, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds to such accounts as Parent may designate, the sum of $276,000,000 (the “Company Termination Fee”) if this Agreement is terminated as follows:
(i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating if Parent shall terminate this Agreement pursuant to Section 9.1(c)(i) hereof8.1(e)(iii), in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by then the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by shall pay the Company of reasonable documentation of all Parent/ MergerCo Expenses.Termination Fee on the business day following such termination;
(dii) Notwithstanding anything to if the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of Company shall terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof8.1(d)(iv), the payment Company shall pay the Company Termination Fee concurrently with such termination;
(iii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(f)(i) and (B) at any time after the date hereof and at or before the date of the Liquidated Amount and the Parent/MergerCo Expenses Company Stockholders Meeting there shall constitute liquidated damages have been a Public Proposal with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company, and if (C) within twelve months of the date of such termination of this Agreement, the Company or any of the Company Subsidiaries or enters into any of their respective assetsdefinitive agreement with respect to, or against consummates, any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree Acquisition Proposal (provided that, in light this instance, all percentages included in the definition of “Acquisition Proposal” shall be increased to 50%), then the difficulty Company shall pay the Company Termination Fee upon the date of accurately determining actual damages with respect to the foregoing upon any termination of such execution or consummation, whichever is earlier;
(iv) if (A) either party shall terminate this Agreement pursuant to Section 9.1(c)(i8.1(c) or Section 9.1(d)(iiand (B) hereofat any time after the date hereof and before such termination there shall have been a Public Proposal with respect to the Company, or Section 9.1(b)(iand if (C) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate within twelve months of the damages that will be suffered by reason date of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofAgreement, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries enters into any definitive agreement with respect to, or consummates, any Acquisition Proposal (provided that, in this instance, all percentages included in the definition of “Acquisition Proposal” shall be increased to 50%), then the Company shall pay the Company Termination Fee upon the date of such execution or consummation, whichever is earlier; and
(v) if Parent shall terminate this Agreement pursuant to Section 8.1(e)(ii) within 10 calendar days following the occurrence of the event giving rise to such termination right, then the Company shall pay the Company Termination Fee on the Business Day following such termination. Notwithstanding anything in this Agreement to the contrary, if the Company fails to pay all amounts due to Parent on the dates specified, then the Company shall pay all costs and expenses (including legal fees and expenses) incurred by Parent in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in The Wall Street Journal, from the date such amounts were required to be paid until the date actually received by Parent.
(c) Parent shall pay the Company, by wire transfer of immediately available funds to such accounts as the Company may designate, the sum of $135,000,000 (the “Parent Termination Fee”) if this Agreement is terminated as follows:
(i) if the Company shall terminate this Agreement pursuant to Section 8.1(d)(iii) then Parent shall pay the Parent Termination Fee on the business day following such termination;
(ii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(f)(ii) and (B) at any time after the date hereof and before such termination there shall have been a Public Proposal with respect to the Parent, and if (C) within twelve months of the date of such termination of this Agreement, Parent or any of their respective assetsParent Subsidiaries enters into any definitive agreement with respect to, or against consummates, any Acquisition Proposal (provided that, in this instance, all percentages included in the definition of their respective directors“Acquisition Proposal” shall be increased to 50%), officersthen Parent shall pay the Parent Termination Fee upon the date of such execution or consummation, employeeswhichever is earlier;
(iii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(c), partners, managers, members or shareholdersexcept in the circumstances described in Section 8.2(d)(i), and (B) at any time after the date hereof and before such termination there shall have been a Public Proposal with respect to the Parent, and if (C) within twelve months of the date of such termination of this Agreement, Parent or any of Parent Subsidiaries enters into any definitive agreement with respect to, or consummates, any Acquisition Proposal (provided that, in this instance, all percentages included in the definition of “Acquisition Proposal” shall be entitled increased to seek 50%), then Parent shall pay the Parent Termination Fee upon the date of such execution or obtain consummation, whichever is earlier; and
(iv) if the Company shall terminate this Agreement pursuant to Section 8.1(d)(ii) within 10 calendar days following the occurrence of the event giving rise to such termination right, except in the circumstances described in Section 8.2(d)(ii), then Parent shall pay the Parent Termination Fee on the Business Day following such termination. Notwithstanding anything in this Agreement to the contrary, if Parent fails to pay all amounts due to the Company on the dates specified, then Parent shall pay all costs and expenses (including legal fees and expenses) incurred by the Company in connection with any other damages action or proceeding (including the filing of any kindlawsuit) taken by it to collect such unpaid amounts, includingtogether with interest on such unpaid amounts at the prime lending rate prevailing at such time, without limitationas published in The Wall Street Journal, consequentialfrom the date such amounts were required to be paid until the date actually received by the Company.
(d) Parent shall pay the Company by wire transfer of immediately available funds to such accounts as the Company may designate, indirect the sum of $250,000,000 (the “Regulatory Termination Fee”), and shall not pay the Company the Parent Termination Fee, if this Agreement is terminated as follows:
(i) if (A) either party shall terminate this Agreement pursuant to Section 8.1(c), (B) as of the date of such termination the HSR Clearance shall not have occurred or punitive damagesany decree, judgment, injunction, or other order (in each case that relates to antitrust Laws) that prevents, prohibits or delays the consummation of the Transactions exists or is in effect, (C) immediately prior to such termination, the conditions set forth in Sections 7.1(a) (to the extent relating to the Requisite Company Stockholder Vote), 7.1(b) and 7.2(a) shall have been satisfied, and (D) each of the Company, New Diamond and New Diamond Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement prior to such termination (other than obligations, agreements and covenants set forth in Section 6.11), then Parent shall pay the Regulatory Termination Fee on the business day following such termination; provided, that if (1) this Agreement is terminated pursuant to Section 8.1(g) and (2) at the time of such termination this Agreement may also be terminated pursuant to Section 8.1(c), then for purposes of this Section 8.2(d)(i) this Agreement shall be deemed to have been terminated pursuant to Section 8.1(c); and
(ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d)(ii)(A)(1) within 10 calendar days following the occurrence of the event giving rise to such termination right, Parent shall pay the Regulatory Termination Fee on the business day following such termination, Notwithstanding anything in this Agreement to the contrary, if Parent fails to pay all amounts due to the Company on the dates specified, then Parent shall pay all costs and expenses (including legal fees and expenses) incurred by the Company in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in The Wall Street Journal, from the date such amounts were required to be paid until the date actually received by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Inc /De/), Merger Agreement (Supervalu Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination and abandonment of this Agreement pursuant to Section 9.1 hereof11.01 or Section 11.02, this Agreement shall forthwith become null and void and have no effect, without any liability Liability on the part of any party hereto or its affiliatesrespective Affiliates, trusteesofficers, directorsdirectors or stockholders, officers or stockholders and all rights and obligations other than the Liability of any party hereto shall cease except for the agreements contained in Section 7.4Purchaser, the third sentence of Section 7.16 and Articles 9 and 10; providedCompany or Seller, howeveras the case may be, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or intentional and willful breach of this Agreement occurring prior to such termination. Upon the termination of this Agreement pursuant to this Article XI, the Deposit, together with interest earned thereon, shall be immediately paid to Purchaser; provided that (I) in the event this Agreement is terminated pursuant to Section 11.02, the Initial Deposit shall be paid to Seller immediately following such termination and (II) in the event that (a) all of the conditions to the Closing set forth in Section 7.01(a), Section 7.01(b) and Section 7.03 have been satisfied (except such conditions which are contemplated to occur at the Closing; provided that such conditions would be capable of being satisfied if the Closing were to occur at the time of such termination; provided, further, that solely for purposes of this Section 11.03, any such conditions shall be deemed to have been met if failure to meet such condition is primarily a result of Purchaser’s failure to fulfill any obligation under this Agreement.
, has been the primary cause of such failure, or Purchaser is in breach of any representation, warranty, covenant or other agreement so as to prevent any such condition from being satisfied) and (b) The Company shall pay to MergerCo an amount in cash equal to (Ax) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) Purchaser or Section 7.1(a)(iii), or (X) the Company Seller terminates this Agreement pursuant to Section 9.1(c)(i11.01(b), (y) Purchaser or (Y) MergerCo Seller terminates this Agreement pursuant to Section 9.1(d)(ii11.01(c) (at a time when Seller would be entitled to terminate this Agreement pursuant to Section 11.01(e)) or (Zz) either the Company or MergerCo Seller terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, 11.01(e) (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For provided that solely for purposes of this Section 9.211.03, "Parent/MergerCo Expenses" all references in Section 11.01(e) to thirty (30) days shall be an amount equal deemed to be to sixty (60) days), the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the TransactionsDeposit, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactionsany interest earned thereon, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by paid to Seller immediately following such termination. The provisions of Section 6.02(b) and this Article XI shall survive the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (CAESARS ENTERTAINMENT Corp), Stock Purchase Agreement (Caesars Acquisition Co)
Effect of Termination. (a) Subject In the event that (i) any person makes a Company Takeover Proposal that shall not have been withdrawn on the date of the Company Shareholders Meeting and thereafter this Agreement is terminated pursuant to Sections 9.2(bSection 7.01(b)(i) and within twelve months of the date of such termination the Company enters into an agreement providing for, or consummates, such Company Takeover Proposal, (dii) hereofany person makes a Company Takeover Proposal, this Agreement is terminated pursuant to Section 7.01(f) and within twelve months of the date of such termination the Company enters into an agreement providing for, or consummates, such Company Takeover Proposal, (iii) this Agreement is terminated by the Company pursuant to Section 7.01(d) or (iv) this Agreement is terminated by Parent pursuant to Section 7.01(b)(v) and within twelve months of the date of such termination the Company enters into an agreement providing for, or consummates, a Company Takeover Proposal involving any person or an affiliate thereof with whom the Company had negotiations, or to whom the Company provided non-public information, with respect to such Company Takeover Proposal after the date of this Agreement and prior to such termination, then the Company shall pay to Parent a fee of $45,000,000 (the "Termination Fee"), which amount shall be payable by wire transfer of same day funds, in the case of the foregoing clause (i), (ii) or (iv), on the date of the consummation of such Company Takeover Proposal, and in the case of clause (iii), on the date of termination of this Agreement.
(b) In the event that (i) any person makes a Parent Takeover Proposal that shall not have been withdrawn on the date of the Parent Stockholders Meeting and thereafter this Agreement is terminated pursuant to Section 7.01(b)(ii) and within twelve months of the date of such termination Parent enters into an agreement providing for, or consummates, such Parent Takeover Proposal, (ii) any person makes a Parent Takeover Proposal, this Agreement is terminated pursuant to Section 7.01(g) and within twelve months of the date of such termination Parent enters into an agreement providing for, or consummates, such Parent Takeover Proposal, (iii) this Agreement is terminated by Parent pursuant to Section 7.01(e) or (iv) this Agreement is terminated by the Company pursuant to Section 7.01(b)(v) and within twelve months of the date of such termination Parent enters into an agreement providing for, or consummates, a Parent Takeover Proposal involving any person or an affiliate thereof with whom Parent had negotiations, or to whom Parent provided non-public information, with respect to such Parent Takeover Proposal after the date of this Agreement and prior to such termination, then Parent shall pay to the Company the Termination Fee, which amount shall be payable by wire transfer of same day funds, in the case of the foregoing clause (i), (ii) or (iv), on the date of the consummation of such Parent Takeover Proposal, and in the case of clause (iii), on the date of termination of this Agreement.
(c) In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof7.01, this Agreement shall forthwith become null and void and have no effect, without any liability or obligation on the part of any party hereto Parent, Sub or its affiliatesthe Company, trustees, directors, officers or stockholders and all rights and obligations other than the provisions of any party hereto shall cease except for the agreements contained in Section 7.4, the third second sentence of Section 7.16 5.04, Section 5.10, this Section 7.02 and Articles 9 Article VIII, which provisions shall survive such termination, and 10; provided, however, except to the extent that nothing contained such termination results from the wilful and material breach by a party of any representation or warranty set forth in this Section 9.2(a) shall relieve Agreement or from the material breach by a party of any party from liability for any fraud or willful breach of covenant set forth in this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Boise Cascade Corp), Agreement and Plan of Merger (Officemax Inc /Oh/)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement as provided in Section 8.1 hereof, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4Parent, the third sentence of Section 7.16 and Articles 9 and 10; providedPurchaser or the Company, however, that nothing contained except (i) as set forth in this Section 9.2(a8.2 and in Sections 6.3(a), 6.5 and 9.3 hereof and (ii) nothing herein shall relieve any party from liability for any fraud or willful and material breach of this Agreement.
(b) The Company If (i) Parent shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates have terminated this Agreement pursuant to Section 9.1(c)(i8.1(h) or hereof, (Yii) MergerCo terminates Parent shall have terminated this Agreement pursuant to Section 9.1(d)(ii8.1(g) or hereof and within twelve (Z12) either months following the Company or MergerCo terminates this Agreement date of any such termination, an acquisition pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to consummated or (iii) the Company's stockholders generally or any person Company shall have publicly announced an Acquisition Proposal or solicited proxies or consents terminated this Agreement pursuant to Section 8.1(f)(ii), then in opposition to any such case the Merger and (ii) within nine (9) months Company shall pay in immediately following the date of available funds simultaneously with such termination the Company if pursuant to Section 8.1(f)(ii) hereof and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingpromptly, but in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more later than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions two (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (32) business days after the date of terminationsuch termination if pursuant to Section 8.1(h) hereof or the consummation of the acquisition contemplated by the Acquisition Proposal following a termination pursuant to Section 8.1(g), to Parent a Termination Fee, which fee shall be payable by wire transfer to such account as Parent may designate in writing to the Company.
(iic) Notwithstanding the provisions set forth in Section 8.2(a) and Section 8.2(b) above, if this Agreement is terminated by Parent pursuant to Section 8.1(i) hereof or by the case Company pursuant to Section 8.1(j) hereof and Parent is not entitled to terminate, withdraw or not consummate the Offer under one or more of clause the conditions to the Offer set forth in Annex I to this Agreement (Zother than the condition set forth in subparagraph (k) thereofof Annex I), Parent shall pay the Termination Fee to the Company in immediately available funds. Payment of the Termination Fee shall be made within three two (32) business days after Parent's or the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any Company's termination of this Agreement pursuant to Section 9.1(c)(i8.1(i) or Section 9.1(d)(ii8.1(j).
(d) Notwithstanding the provisions set forth in Sections 8.2(a) and Section 8.2(b) above, if at least a majority of the issued and outstanding Common Stock on a fully diluted basis has been validly tendered and not withdrawn prior to the expiration of the Offer, and this Agreement is terminated by Parent pursuant to Section 8.1(b) or by the Company pursuant to Section 8.1(e) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof Parent shall pay the Termination Fee to the Company in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which immediately available funds if Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to terminates this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising solely as a result of the foregoing. Except for nonpayment Minimum Condition not having been satisfied, with payment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any Termination Fee to be made within two (2) business days after Parent's or the Company's termination of this Agreement pursuant Agreement.
(e) For purposes of this Agreement, the term "Termination Fee" shall mean an amount equal to Section 9.1(c)(i) $4,975,000, plus an amount, not in excess of $1,000,000, equal to the actual and reasonably documented out-of-pocket expenses incurred by either Parent or Section 9.1(d)(ii) hereofPurchaser, on the one hand, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof the Company, on the other hand, as the case may be, in circumstances where connection with the Liquidated Amount Offer, the Merger, this Agreement, the Stockholders' Agreement and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any consummation of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, transactions contemplated hereby and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesthereby.
Appears in 2 contracts
Sources: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement in accordance with Section 8.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to Section 9.1 hereofwhich such termination is made, and this Agreement shall forthwith become null and void void, and have there shall be no effect, without any liability on the part of any party hereto Parent, Sub or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, Representatives, agents or advisors other than, with respect to Parent, Sub and the Company, the obligations pursuant to this Section 8.2, Article IX and the last sentence of Section 6.2. Nothing contained in this Section 8.2 shall relieve Parent, Sub or the Company from liability for fraud or intentional breach of this Agreement or the Confidentiality Agreement.
(b) If (i) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) or by Parent pursuant to Section 8.1(d)(ii), (ii) this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(b)(iv) or (iii) (A) this Agreement is terminated by (I) the Company pursuant to Section 8.1(b)(i) (but only if at such time Parent would not be prohibited from terminating this Agreement by the first proviso in Section 8.1(b)(i)) without a vote of the Company’s shareholders being taken or (II) by either Parent or the Company pursuant to Section 8.1(b)(iii), (B) there has been publicly disclosed for the first time after the date of this Agreement and prior to the termination of this Agreement in the case of clause (A) (I) and the time of Company Special Meeting in the case of clause (A) (II), an Acquisition Proposal and (C) within one year after such termination, either (1) the Company enters into a definitive agreement with respect to a Qualifying Transaction pursuant to such Acquisition Proposal, which Qualifying Transaction is later consummated with the Person that made such Acquisition Proposal, or (2) such a Qualifying Transaction occurs with such Person, then the Company shall pay to Parent a termination fee of $5,500,000 in cash, (x) concurrently with any termination pursuant to Section 8.1(c)(ii), (y) within five (5) Business Days after any termination pursuant to Section 8.1(b)(iv) or Section 8.1(d)(ii) and (z) within five (5) Business Days after the consummation of the transaction contemplated by Section 8.2(b)(iii)(C) after a termination by the Company pursuant to Section 8.1(b)(i)or by the Company or Parent pursuant to Section 8.1(b)(iii) in the manner contemplated by Section 8.1(b)(iii); it being understood that in no event shall the Company be required to pay the fee referred to in this Section 8.2(b) on more than one occasion. Upon payment of such fee, the Company shall have no further liability to Parent or Sub with respect to this Agreement and or the Transactions and transactions contemplated hereby, provided that nothing herein shall constitute the sole and exclusive remedy available to Parent and MergerCorelease any party from liability for intentional breach or fraud. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of All payments contemplated by this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii8.2(b) shall be in full and complete satisfaction made by wire transfer of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), immediately available funds to an account designated by Parent and MergerCo hereby agree that, upon shall be reduced by any termination amounts required to be deducted or withheld therefrom under applicable Law in respect of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesTaxes.
Appears in 2 contracts
Sources: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Parent or the Company as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effect, without and none of Parent, the Company, any of their respective affiliates or any of their respective employees, officers, directors or representatives shall have any liability on the part or obligation of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Section 6.2(b) and this Section 8.2 and Article IX shall survive any termination of this Agreement, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, neither Parent nor the Company shall relieve be relieved or released from any party from liability for any liabilities or damages arising out of its fraud or willful any knowing, intentional and material breach of this Agreementany of its representations, warranties, covenants, obligations or agreements set forth herein.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount")event that, plus (B) after the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates execution of this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special MeetingAgreement, (i) prior to the termination of this Agreement, an Acquisition Proposal (whether or not conditional) shall have been made (x) known to senior management or the Board of Directors of the Company or (y) directly to the Company's ’s stockholders generally generally, or any person shall have publicly announced an Acquisition Proposal or solicited proxies the intention to make an Acquisition Proposal (whether or consents in opposition not conditional) with respect to the Merger and Company, (ii) within nine thereafter this Agreement is terminated by (9A) either Parent or the Company pursuant to Section 8.1(c) (and the Requisite Company Vote has not been obtained), (B) either Parent or the Company pursuant to Section 8.1(c) (and the Requisite Company Vote has been obtained and this Agreement is terminable by Parent under Section 8.1(d)), (C) Parent pursuant to Section 8.1(d) (solely in the case of a willful or intentional breach of this Agreement), (D) Parent pursuant to Section 8.1(f), or (E) the Company pursuant to Section 8.1(g), and (iii) on or prior to the date that is twelve (12) months immediately following after the date of such termination termination, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement (regardless of whether a transaction is consummated) or consummates a transaction with respect thereto. Notwithstanding to an Acquisition Proposal (whether or not the foregoingsame Acquisition Proposal as that referred to in clause (b)(i) above), in no event shall then the Company be obligated to shall, on the earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes , by wire transfer of this Section 9.2same day funds, "Parent/MergerCo Expenses" shall be an amount in cash equal to $7,400,000 (the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"“Termination Fee”); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of In the Liquidated Amount required event that this Agreement is terminated by Parent pursuant to Section 9.2(b) hereof shall be payable by 8.1(e), then the Company to MergerCo shall pay Parent, by wire transfer of immediately available funds (i) same day funds, an amount in cash equal to the case of clause (W) or (Y) thereof, within three (3) business days after Termination Fee on the date of such termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Partners Bancorp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof7.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto Parent, the Purchaser or its affiliates, trustees, directorsthe Company or their respective Subsidiaries, officers or stockholders directors except (a) with respect to Section 5.2(b), Section 5.6, this Section 7.2 and all rights Article 8 and obligations (b) with respect to any liabilities or damages incurred or suffered by a party as a result of the willful and material breach by another party of any party hereto shall cease except for the of its representations, warranties, covenants or other agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained set forth in this Section 9.2(a) shall relieve any party from liability for any fraud Agreement or willful breach of this Agreementbased on fraud.
(b) The In the event that this Agreement is terminated pursuant to Section 7.1(e) or Section 7.1(f), then the Company shall pay to MergerCo an amount Parent concurrent with such termination, in cash equal to (A) the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, a termination fee of $5,000,000 36,000,000 (the "Liquidated Amount"“Breakup Fee”), plus .
(Bc) In the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates event that this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement is terminated pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i7.1(g), if, and prior to the Special Meeting, (i) date of termination of this Agreement an Acquisition Proposal shall have been made directly to the Company's stockholders generally stockholders, otherwise publicly disclosed or any person shall have otherwise publicly announced communicated to senior management of the Company or the Company Board, and on or prior to the first anniversary of the termination of this Agreement (i) such Acquisition Proposal is consummated, (ii) the Company enters into a definitive written agreement providing for the consummation of such Acquisition Proposal and such Acquisition Proposal is subsequently consummated (whether consummated before or after such anniversary), or (iii) the Company Board recommends or submits an Acquisition Proposal to its stockholders for adoption and such transaction is subsequently consummated (whether consummated before or solicited proxies after such anniversary), which, in the cases of clauses (i) through (iii), need not be the same Acquisition Proposal that shall have been made, publicly disclosed or consents in opposition communicated prior to the Merger and (ii) within nine (9) months immediately following the date of termination hereof, then, concurrent with such termination consummation, the Company and shall pay Parent the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingBreakup Fee (provided, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For that for purposes of this Section 9.27.2(c), "Parent/MergerCo Expenses" the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, except that the references to “25%” shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses deemed to be reimbursed by the Company shall not exceed $1,000,000references to “50%”).
(cd) Any payment of the Liquidated Amount required by All payments under this Section 9.2(b) hereof 7.2 shall be payable by the Company to MergerCo made by wire transfer of immediately available funds to an account designated in writing by Parent. Each of the Company, Parent and the Purchaser acknowledges that (i) the agreements contained in this Section 7.2 are an integral part of the case of clause (W) or (Y) thereof, within three (3) business days after the date of terminationtransactions contemplated by this Agreement, (ii) in without these agreements, Parent, the case of clause (Z) thereof, within three (3) business days after Purchaser and the date of entering Company would not enter into such definitive agreement, this Agreement and (iii) the Breakup Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and the Purchaser in the case of clause (X) thereof, prior to terminating circumstances in which such Breakup Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement pursuant to Section 9.1(c)(i) hereof, and in any such case to an account designated by MergerCo. Any payment reliance on this Agreement and on the expectation of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment consummation of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim transactions contemplated hereby, which Parent or MergerCo amount would otherwise be entitled impossible to assert against calculate with precision. If the Company or any of fails promptly to pay the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect amounts due pursuant to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof7.2, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b)order to obtain such payment, Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof its designee commences a suit that results in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or a judgment against the Company for all or any a portion of the Breakup Fee, the Company Subsidiaries shall pay to Parent or any its designees interest on such amount or amounts from the date such payment was required to be made until the payment date at the prime rate of their respective assetsCitibank, or against any of their respective directorsN.A., officers, employees, partners, managers, members or shareholders, and (B) in effect on the date such payment was required to be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmade.
Appears in 2 contracts
Sources: Merger Agreement (Allergan Inc), Merger Agreement (MAP Pharmaceuticals, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Buyer or Seller as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effect, without and none of Buyer, Seller, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability on the part of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Section 6.2(c), directorsSection 6.12 and this Section 8.2 and Article IX (other than Section 9.1) shall survive any termination of this Agreement, officers or stockholders and all rights and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, neither Buyer nor Seller shall relieve be relieved or released from any party from liability for any liabilities or damages arising out of its fraud or its willful and material breach of any provision of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) event that after the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates date of this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, and prior to the Special Meetingtermination of this Agreement, (i) an a bona fide Acquisition Proposal shall have been communicated to or otherwise made known to the Board of Directors or senior management of Seller or shall have been made directly to the Company's stockholders of Seller generally or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the Seller Meeting) an Acquisition Proposal Proposal, in each case with respect to Seller and (A) (1) thereafter this Agreement is terminated by either Buyer or solicited proxies Seller pursuant to Section 8.1(c) without the Requisite Seller Vote having been obtained (and all other conditions set forth in Sections 7.1 and 7.3 were satisfied or consents in opposition were capable of being satisfied prior to such termination) or (2) thereafter this Agreement is terminated by Buyer pursuant to Section 8.1(d) as a result of a willful breach by Seller, and (B) prior to the Merger and date that is twelve (ii) within nine (912) months immediately following after the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter termination, Seller enters into a definitive agreement or consummates a transaction with respect thereto. Notwithstanding to an Acquisition Proposal (whether or not the foregoingsame Acquisition Proposal as that referred to above), in no event shall then Seller shall, on the Company be obligated earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay Buyer, by wire transfer of same day funds, a fee equal to pay $5,000,000 (the Liquidated Amount or the Parent/MergerCo Expenses more than once. For “Termination Fee Amount”); provided, that for purposes of this Section 9.28.2(b), "Parent/MergerCo Expenses" all references in the definition of Acquisition Proposal to “twenty-five percent (25)%” shall be an amount equal instead refer to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions “fifty percent (collectively, the "Parent/MergerCo Expenses"50%); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000”.
(c) Any payment of In the Liquidated Amount required by event that this Agreement is terminated Buyer pursuant to Section 9.2(b) hereof 8.1(e), then Seller shall be payable by the Company to MergerCo pay by wire transfer of immediately available funds same day funds, the Termination Fee Amount within two (i) in the case of clause (W) or (Y) thereof, within three (32) business days after of the date of the termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in herein, but without limiting the right of Buyer to recover liabilities or damages arising out of Seller’s fraud or its willful and material breach of any provision of this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo Seller be required to pay the Termination Fee Amount more than once.
(Ae) seek Each of Buyer and Seller acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if Seller fails promptly to pay the amount due pursuant to this Section 8.2, and, in order to obtain any recovery or such payment, Buyer commences a suit that results in a judgment against for the Company Termination Fee Amount or any portion thereof, the party that is obligated to pay all or a portion of the Company Subsidiaries or any Termination Fee Amount shall pay the costs and expenses of their respective assetsBuyer (including reasonable attorneys’ fees and expenses) in connection with such suit. In addition, or against any if Seller fails to pay the amounts payable pursuant to this Section 8.2, then Seller shall pay interest on such overdue amounts (for the period commencing as of their respective directorsthe date that such overdue amount is actually paid in full) at a rate per annum equal to the “prime rate” published in The Wall Street Journal on the date on which such payment was required to be paid and ending on the date that such overdue amount is actually paid. The amounts payable by Seller pursuant to Section 8.2(b), officersSection 8.2(c) and this Section 8.2(e), employees, partners, managers, members or shareholdersconstitute liquidated damages and not a penalty, and (B) except in the case of fraud or willful and material breach, shall be entitled to seek or obtain any other damages the sole monetary remedy of any kind, including, without limitation, consequential, indirect or punitive damagesBuyer in the event of a termination of this Agreement specified in such applicable section.
Appears in 2 contracts
Sources: Merger Agreement (BankFinancial CORP), Merger Agreement (BankFinancial CORP)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof7.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto Parent or its affiliates, trustees, directors, the Company or their respective officers or stockholders and all rights and obligations of any party hereto shall cease directors except for (i) with respect to the agreements contained in Section 7.4, the third last sentence of Section 7.16 and Articles 9 and 10; provided5.2, howeverSection 5.6, that nothing contained in this Section 9.2(a7.2 and Article VIII and (ii) shall relieve with respect to any liabilities or damages incurred or suffered by a party from liability for any fraud or as a result of the willful breach by the other party of any of its covenants or other agreements set forth in this Agreement.
(b) The In the event that (x) this Agreement is terminated pursuant to Section 7.1(f) or 7.1(g), or (y)
(i) the Offer shall have remained open for a minimum of at least 20 Business Days from the date that it is amended pursuant to Section 1.1(a), (ii) after the date hereof any corporation, partnership, person, other entity or group (as defined in Section 13(d)(3) of the Exchange Act) other than Parent or Merger Sub or any of their respective Subsidiaries or affiliates shall have become the beneficial owner of 15% or more of the outstanding shares of Company Common Stock or made any Acquisition Proposal, (iii) the Minimum Condition shall not have been satisfied and the Offer is terminated pursuant to Section 7.1(c) and Merger Sub shall not have accepted for payment any shares of Company Common Stock pursuant to the Offer and (iv) within twelve months of such termination the Company enters into an agreement providing for the consummation of an Acquisition Proposal (as such term is defined in Section 5.4(a), except that the reference in such definition to 15% shall be deemed a reference to 40% for purposes of this clause (iv) only) or any other person or other entity (other than Parent or any of its affiliates) becomes the beneficial owner of 40% or more of the outstanding shares of Company Common Stock, then the Company shall pay to MergerCo an amount the Parent in cash equal to (A) $5,000,000 (the "Liquidated Amount"), 30,000,000 plus (B) up to $7,500,000 of Parent's reasonable and documented expenses incurred in connection with the Parent/MergerCo Expenses Offer and Merger (as hereinafter defined(A) if and (WB) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result together, the "TERMINATION FEE"), which amount shall be payable by wire transfer of immediately available funds no later than two Business Days after such termination, in the case of clause (x), or within two business days of the Company having wilfully breached its obligations under Section 7.1(a)(i) entering into an agreement or Section 7.1(a)(iiia person becoming the beneficial owner of 40% or more of the Company's outstanding shares of Company Common Stock, in the case of clause (y); PROVIDED, or (X) HOWEVER, the Company terminates this Agreement Termination Fee shall not be payable following termination by Parent pursuant to Section 9.1(c)(i7.1 (f)(v)(B) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) unless within nine (9) months immediately following one year of the date of such termination the Company and or one or more of its affiliates enters into an agreement providing for the party who shall have made such consummation of an Acquisition Proposal or any affiliate thereof enter into (as defined in Section 5.4(a), except that the reference in such definition to 15% shall be deemed to be a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated reference to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For 40% for purposes of this Section 9.2proviso only), "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by which case the Company shall not exceed $1,000,000.
(c) Any payment of pay Parent the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, Termination Fee within three (3) two business days after the date of terminationentry into such agreement; PROVIDED, (ii) FURTHER, HOWEVER, that the one year period in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) period in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof preceding provision shall be payable by deemed to be two years if the Company enters into an agreement providing for the consummation of an Acquisition Proposal with the Person that made the Superior Proposal that caused the Company to MergerCo by wire transfer take the actions that triggered Parent's right to terminate under Section 7.1(f)(v)(B). The Company acknowledges that the agreements contained in this Section 7.2(b) are an integral part of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary transactions contemplated in this Agreement, and that, without these agreements, the Parent and MergerCo hereto expressly acknowledge and agree thatMerger Sub would not enter into this Agreement; accordingly, with respect if the Company fails to any termination of this Agreement promptly pay the amount due pursuant to this Section 9.1(c)(i) or Section 9.1(d)(ii) hereof7.2(b), or Section 9.1(b)(i) or Section 9.1(d)(i) hereof and, in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereoforder to obtain such payment, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, Merger Sub commences a suit which results in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company for the fee set forth in this paragraph (b), the Company shall pay to Parent or any Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the Company Subsidiaries or any fee at the prime rate of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) Citibank N.A. on the date such payment was required to be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmade.
Appears in 2 contracts
Sources: Merger Agreement (Vlsi Technology Inc), Merger Agreement (Vlsi Technology Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereofthis ARTICLE VIII, this Agreement no Party shall forthwith become null and void and have no effect, without any liability on or further obligation hereunder to the part of any party hereto or its affiliatesother Party, trusteesexcept that (i) Section 6.5, directors8.2, officers or stockholders ARTICLE IX and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third last sentence of Section 7.16 6.2 survive any termination of this Agreement and Articles 9 and 10; provided, however, that nothing contained (ii) notwithstanding anything to the contrary in this Section 9.2(a) shall Agreement, termination will not relieve any a breaching party from liability for any fraud or willful and material breach of any provision of this Agreement.
(b) The To compensate Park Sterling for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto, including foregoing the pursuit of other opportunities by Park Sterling, Park Sterling and the Company shall pay agree as follows:
(i) if this Agreement is terminated by Park Sterling pursuant to MergerCo an amount Section 8.1(f) or Section 8.1(g) and, in cash equal the case of a termination pursuant to (A) $5,000,000 (the "Liquidated Amount"Section 8.1(g), plus (B) on or prior to the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result date of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii)Stockholders Meeting, or (X) Park Sterling had the Company terminates this Agreement right to terminate pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(f), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingthen promptly, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more later than once. For purposes of this Section 9.2two (2) Business Days following such termination, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of pay or cause the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company Bank to MergerCo pay to Park Sterling, by wire transfer of immediately available funds funds, the Termination Fee.
(iii) in the case of clause if (WA) this Agreement is terminated (1) by either Party pursuant to Section 8.1(b) or (Y2) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement by Park Sterling pursuant to Section 9.1(c)(i8.1(e) hereofor 8.1(g) and (B) prior to such termination any person shall have made, in any such case or publicly proposed or announced an intention (whether or not conditional) to make, an account designated by MergerCo. Any payment Acquisition Proposal, and if (x) a definitive agreement providing for an Acquisition Proposal is signed within twelve months of the Parent/MergerCo Expenses required by Section 9.2(bsuch termination or (y) hereof shall be payable by an Acquisition Proposal is consummated within twelve months such termination, then in either case (x) or (y) the Company shall on the earlier of entry into such agreement or the consummation of such transaction pay or cause the Bank to MergerCo pay to Park Sterling, by wire transfer of immediately available funds promptly following receipt funds, the Termination Fee.
(iii) if this Agreement is terminated by the Company of reasonable documentation of all Parent/ MergerCo Expensespursuant to Section 8.1(h), the Company shall, simultaneously with such termination and as a condition thereof, pay, or cause the Bank to pay, to Park Sterling the Termination Fee.
(dc) Notwithstanding anything to the contrary in For purposes of this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses “Termination Fee” shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmean $300,000.
Appears in 2 contracts
Sources: Merger Agreement (Provident Community Bancshares, Inc.), Merger Agreement (Park Sterling Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the termination of If this Agreement is terminated by either SNH or CLJ pursuant to Section 9.1 hereofSECTION 8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability further obligation on the part of any party hereto of SNH, CSL or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease CLJ (except for the agreements contained in Section 7.4, the third sentence provisions of Section 7.16 SECTION 9.6 and Articles 9 and 10; provided, however, that nothing contained as set forth in this Section 9.2(a) SECTION 8.2, which shall relieve any party from liability for any fraud or willful breach of this Agreementsurvive such termination).
(b) The Company shall pay If this Agreement is terminated by either SNH or CLJ pursuant to MergerCo an amount SECTION 8.1, except as provided in cash equal to (A) $5,000,000 (the "Liquidated Amount"SECTION 8.2(g), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" Deposit shall be an amount equal paid to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000SNH.
(c) Any payment If CLJ or SNH terminates this Agreement because, on or prior to December 14, 2001, CLJ's shareholders have rejected this transaction at a meeting of the Liquidated Amount required by Section 9.2(b) hereof stockholders called to approve this transaction, CLJ shall be payable by the Company immediately pay to MergerCo SNH $7,500,000 by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCoSNH. Any payment If thereafter CSL or substantially all of the Parent/MergerCo Expenses required by Section 9.2(bAssets are sold or contracted for sale to a third party on or before August 9, 2003, then, on the date of the closing of such sale, CLJ will pay SNH an additional $7,500,000.
(d) hereof If CLJ or SNH terminates this Agreement because, after December 14, 2001, CLJ's shareholders have rejected this transaction at a meeting of stockholders called to approve this transaction, CLJ shall be payable by the Company immediately pay to MergerCo SNH $15,000,000 by wire transfer of immediately available funds promptly following receipt to an account designated by the Company of reasonable documentation of all Parent/ MergerCo ExpensesSNH.
(de) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of If CLJ or SNH terminates this Agreement pursuant because CLJ accepts an Alternative Proposal, CLJ shall immediately pay SNH $15,000,000 by wire transfer of immediately available funds to Section 9.1(c)(ian account designated by SNH.
(f) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or If SNH terminates this Agreement because any of the Company Subsidiaries conditions set forth in SECTIONS 6.1 or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, 6.3 shall not have been complied with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment willful acts or omissions of CLJ or an Acquired Company, CLJ shall immediately pay SNH a fee of $15,000,000 by wire transfer of immediately available funds to an account designated by SNH.
(g) If CLJ terminates this Agreement because any of the amounts conditions set forth in Section 9.2(bSECTIONS 6.1 or 6.2 shall not have been complied with as a result of the willful acts or omissions of SNH or if SNH fails to close because it does not have sufficient funds to pay the Purchase Price (other than as a result of the failure to obtain or close the New Loan), Parent the Deposit shall be paid to CLJ and MergerCo hereby agree thatSNH shall immediately pay CLJ an amount by wire transfer of immediately available funds to an account designated by CLJ which, upon any termination together with the Deposit, represents a fee of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages$15,000,000.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Five Star Quality Care Inc), Stock Purchase Agreement (Senior Housing Properties Trust)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement by either or both of Parent and the Company pursuant to Section 9.1 hereofSection 9.1, this Agreement shall forthwith terminate and become null and void and have no effect, and the transactions contemplated by this Agreement shall be abandoned without any liability on further action by the part of any party hereto or its affiliatesParties to this Agreement, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for other than the agreements contained in Section 7.4, the third last sentence of Section 7.16 Section 7.3(b) (Confidentiality), this Section 9.3 and Articles 9 and 10Article X, which provisions shall survive the termination of this Agreement; provided, however, that nothing contained notwithstanding anything to the contrary in this Section 9.2(a) Agreement, in no event shall relieve any party from liability for any fraud or willful breach the termination of this AgreementAgreement release any Party from any Liability arising out of or relating to any Willful Breach or fraud.
(b) The Company shall pay to MergerCo Parent an amount in cash equal to (A) $5,000,000 12,600,000 (the "Liquidated Amount"), plus “Company Termination Fee”) if:
(B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (Xi) the Company terminates this Agreement pursuant to Section 9.1(c)(iSection 9.1(f);
(ii) or (Y) MergerCo Parent terminates this Agreement pursuant to Section 9.1(d)(iiSection 9.1(e);
(iii) (A) prior to the Company Stockholder Meeting, a Company Takeover Proposal shall have been publicly made to the Company or otherwise communicated or made known to the Company’s senior management or the Company Board and shall not have been withdrawn or repudiated prior to such Company Stockholder Meeting (in the event this Agreement is terminated pursuant to Section 9.1(b)(iii)) or prior to the termination of this Agreement (in the event this Agreement is terminated pursuant to Section 9.1(d) or Section 9.1(b)(i)) by the Person making such Company Takeover Proposal, (B) this Agreement is terminated pursuant to (I) Section 9.1(b)(iii), (II) Section 9.1(d) or (ZIII) either Section 9.1(b)(i) and (C) within 12 months of such termination, the Company enters into a definitive Acquisition Agreement to consummate a Company Takeover Proposal (provided that such Company Takeover Proposal is subsequently consummated) or MergerCo terminates a Company Takeover Proposal is consummated; provided, however, that for purposes of this Section 9.3(b)(iii) only, each reference to “20%” in the definition of Company Takeover Proposal shall be deemed to be a reference to “50%”; or
(iv) this Agreement is terminated pursuant to Section 9.1(b)(iii) but, at the time of such termination, Parent would have been permitted to terminate this Agreement pursuant to Section 9.1(b)(ia provision that would give rise to a Company Termination Fee in accordance with Section 9.3(b)(ii)), ifin which case this Agreement shall be deemed terminated pursuant to such provision.
(v) Any Company Termination Fee due under this Section 9.3(b) shall be paid by wire transfer of same-day funds (x) in the case of clause (i) above, prior to or on the Special Meetingdate of termination of this Agreement, (iy) an Acquisition Proposal shall have been made directly to in the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and case of clauses (ii) above, within nine (9) months immediately two Business Days following the date of such termination of this Agreement, and (z) in the case of clause (iii) above, within two Business Days following the consummation of the Company and the party who shall have made such Acquisition Takeover Proposal or any affiliate thereof enter into a definitive agreement with respect theretoreferred to in clause (iii)(C) above. Notwithstanding the foregoing, in In no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the one Company shall not exceed $1,000,000Termination Fee.
(c) Any payment The Company acknowledges and agrees that the agreements contained in Section 9.3(b) are an integral part of the Liquidated Amount required transactions contemplated by Section 9.2(bthis Agreement, that, without these agreements, Parent would not enter into this Agreement, and that any amount payable pursuant to this Section 9.3(b) hereof shall be payable by does not constitute a penalty. Accordingly, if the Company fails promptly to MergerCo by wire transfer of immediately available funds pay the amount due pursuant to Section 9.3(b), and, in order to obtain such payment, Parent commences a suit, action or other proceeding that results in a judgment in its favor for such payment, the Company shall also pay to Parent its costs and expenses (iincluding attorneys’ fees and expenses) in connection with such suit, action or other proceeding, together with interest from the case of clause (W) or (Y) thereofdate such payment is due until the date paid at a rate equal to the prime rate as published in The Wall Street Journal, within three (3) business days after Eastern Edition in effect on the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensespayment.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect in the event the Company fails to any termination of effect the Closing or otherwise breaches this Agreement pursuant or fails to Section 9.1(c)(i) perform hereunder, then, except for an injunction or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where an order of specific performance as and only to the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofextent expressly permitted by Section 10.6, the payment of the Liquidated Amount Acquirer Parties’ sole and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages exclusive remedy (whether at law, in equity, in contract, in tort or any other claim which Parent or MergerCo would otherwise be entitled to assert otherwise) against the Company or any of the Company its Subsidiaries or and any of their respective assetsrespective, direct or against any of their respective indirect, former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates, employees, partnersagents, managersother Representatives or assignees (such Persons collectively the “Company Related Parties”) in respect of this Agreement, members or shareholders, with respect any Contract executed in connection herewith (other than the Confidentiality Agreement) and the transactions contemplated hereby and thereby shall be to terminate this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofthis Article IX and collect, if due, the rights Company Termination Fee, and upon payment of such amounts in accordance with this Section 9.3, (A) no Company Related Party shall have any further Liability or obligation relating to payment under Section 9.2(b): or arising out of this Agreement, any Contract executed in connection herewith or the transactions contemplated hereby or thereby, (B) none of the (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofAcquirer Parties, and (ii) any of their respective, direct or indirect, former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates, employees, agents, other Representatives or assignees (such Persons referenced in clauses (i) and (ii), collectively the “Acquirer Related Parties”) shall be in full and complete satisfaction of entitled to bring or maintain any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment Claim against the Company or any Company Related Party arising out of or in connection with this Agreement, any Contract executed in connection herewith, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and (C) Parent shall use its reasonable best efforts to cause any legal proceedings pending in connection with this Agreement, any Contract executed in connection herewith or any of the transactions contemplated hereby or thereby, to the extent maintained by an Acquirer Party or another Acquirer Related Party against the Company, its Subsidiaries or any Company Related Party, to be dismissed with prejudice promptly following the payment of any such amounts. For the avoidance of doubt, under no circumstances shall the Acquirer Parties be (x) entitled to collect the Company Termination Fee on more than one occasion or (y) permitted or entitled to receive both a grant of specific performance of the obligation to close contemplated by Section 10.6 and any money damages, including all or any portion of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesTermination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Ocwen Financial Corp), Merger Agreement (Ocwen Financial Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of termination by the termination of this Agreement Company or the Investor pursuant to Section 9.1 hereof7.1, as applicable, written notice thereof shall forthwith be given to the other party as provided in Section 9.4 and the transactions contemplated by this Agreement shall be terminated without further action by either party. If this Agreement is terminated as provided in Section 7.1 herein, this Agreement shall forthwith become null and void and have of no further force and effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal the provisions of Article VIII (Indemnification), Section 9.1 (Fees and Expenses), Section 9.2 (Specific Enforcement, Consent to Jurisdiction, Waiver of Jury Trial), Section 9.4 (Notices), Section 9.8 (Governing Law), Section 9.9 (Survival), Section 9.11 (Publicity), Section 9.12 (Severability) and this Article VII (Termination) shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents remain in opposition to the Merger full force and (ii) within nine (9) months immediately following the date of effect notwithstanding such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) if the Investor owns any Shares at the time of such termination, the covenants and agreements of the Company and the Investor, as applicable, contained in Section 5.1 (Securities Compliance), Section 5.3 (Compliance with Laws), Section 5.7 (Stop Orders), Section 5.8 (Amendments to the case Registration Statement), Section 5.11 (Effective Registration Statement), Section 5.12 (Non-Public Information) and Section 5.13 (Broker/Dealer) shall remain in full force and effect notwithstanding such termination for a period of clause (Z) thereof, within three (3) business days after the date of entering into six months following such definitive agreementtermination, and (iii) if the Investor owns any Shares at the time of such termination, the covenants and agreements of the Company contained in the case Section 5.2 (Registration and Listing) shall remain in full force and effect notwithstanding such termination for a period of clause (X) thereof, prior to terminating 30 days following such termination. Notwithstanding anything in this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreementcontrary, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any no termination of this Agreement by any party shall affect any cash fees paid to the Investor or its counsel pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof9.1, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses each case all of which fees shall be non-refundable, regardless of whether any Put Notices are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against issued by the Company or settled hereunder. Nothing in this Section 7.2 shall be deemed to release the Company or the Investor from any liability for any breach under this Agreement, or to impair the rights of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute Investor to compel specific performance by the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light other party of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of its obligations under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Investment Agreement (Intercloud Systems, Inc.), Investment Agreement (Intercloud Systems, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereofthis Article VIII, no party hereto (or any of its directors or officers) shall have any liability or further obligation under this Agreement shall forthwith become null and void and have no effectto any other party, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained as provided in this Section 9.2(a) 8.5 and except that nothing herein shall relieve any party from liability for any fraud or a willful breach of this Agreement.
(b) The Company If this Agreement is validly terminated (i) by ALZA pursuant to Section 8.2(c), or (ii) by SEQUUS pursuant to Section 8.3(c), and as of the time of either such termination there shall not have occurred an ALZA Material Adverse Effect, then within two business days after such termination SEQUUS shall pay to MergerCo an amount in cash ALZA a termination fee equal to $25,000,000.
(Ac) $5,000,000 If (the "Liquidated Amount"), plus (Bi) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under is validly terminated by ALZA or SEQUUS pursuant to Section 9.1(d)(i8.1(d) as a result of the Company having wilfully a SEQUUS Negative Vote, (ii) no payment is required by Section 8.5(b), (iii) prior to such SEQUUS Negative Vote, there shall have been publicly announced an Acquisition Proposal which shall not have been withdrawn, (iv) ALZA shall not have breached in any material respect any of its obligations under Section 7.1(a)(ithis Agreement in any manner that shall have proximately contributed to such SEQUUS Negative Vote, (v) or Section 7.1(a)(iii), or (X) the Company terminates within one year after such valid termination of this Agreement pursuant to Section 9.1(c)(i8.1(d) as a result of a SEQUUS Negative Vote, there shall have been consummated a transaction satisfying the requirements of clause (i), (ii) or (Yiii) MergerCo terminates this Agreement pursuant to of Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i5.2(c), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iivi) within nine (9) months immediately following as of the date time of such termination there shall not have occurred an ALZA Material Adverse Effect, then, within two business days following the Company and the party who consummation of such transaction, SEQUUS shall have made such Acquisition Proposal or any affiliate thereof enter into pay ALZA a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount termination fee equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,00025,000,000.
(cd) Any payment of the Liquidated Amount required by SEQUUS will pay any fee payable under this Section 9.2(b) hereof shall be payable by the Company to MergerCo 8.5 by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated specified by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesALZA.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Sequus Pharmaceuticals Inc), Merger Agreement (Alza Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either the Company or Parent as provided in Section 9.1 hereof7.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto Parent, Merger Sub or its affiliates, trustees, directorsthe Company or their respective Subsidiaries, officers or stockholders directors, except (i) with respect to Section 1.1(e), Section 1.2(b), Section 5.3(b), this Section 7.2 and all rights Article VIII and obligations (ii) with respect to any liabilities or damages incurred or suffered by a Party as a result of the willful breach by another Party of any party hereto shall cease except for the of its representations, warranties, covenants or other agreements contained set forth in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The (i) In the event that this Agreement is terminated pursuant to Section 7.1(d) or Section 7.1(e), then the Company shall pay or cause to MergerCo an amount be paid to Parent concurrently with or immediately prior to such termination, in cash equal the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, a termination fee of $356,400,000 (the “Termination Fee”) and reimburse the documented out-of-pocket expenses of Guarantor, Parent and Merger Sub in connection with the Offer, the Merger and the other transactions contemplated hereby up to a maximum of $50,000,000 in the aggregate; and (ii) in the event that (A) $5,000,000 (the "Liquidated Amount"this Agreement is terminated pursuant to Section 7.1(b) or Section 7.1(f), plus (B) after the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, date hereof and prior to the Special Meeting, (i) an date of termination of this Agreement a bona fide Acquisition Proposal shall have been made directly or otherwise communicated to the senior management of the Company or the Company Board or the Company's ’s stockholders generally or any person Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal, and (C)(1) any Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) is consummated within nine (9) twelve months immediately following the date of such termination or (2) the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding providing for an Acquisition Proposal within twelve months of such termination, within one Business Day after the foregoingdate of the earliest to occur of such events described in clauses (C)(1) and (C)(2), in no event shall the Company shall pay or cause to be obligated paid to pay Parent the Liquidated Amount or Termination Fee and reimburse the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable documented out-of-pocket costs A-29 120 and expenses incurred by of Guarantor, Parent and MergerCo Merger Sub in connection with this Agreement the Offer, the Merger and the Transactions, including without limitation, fees and disbursements other transactions contemplated hereby up to a maximum of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf $50,000,000 in the aggregate. Solely for the purposes of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions clause (ii) of this Agreement and any other agreements or other documents relating Section 7.2(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, except that all references to 20% therein shall be deemed to be references to 50%. Notwithstanding anything to the Transactionscontrary herein, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000have no obligation to pay to Guarantor, Parent or Merger Sub any amount of expense reimbursement until it has received reasonable documentation evidencing the expenses being reimbursed.
(c) Any payment of the Liquidated Amount required by All payments under this Section 9.2(b) hereof 7.2 shall be payable by the Company to MergerCo made by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated in writing by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to Each of the contrary Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement, (ii) without these agreements, Parent, Merger Sub and the Company would not enter into this Agreement, (iii) the Termination Fee and reimbursement of expenses are not a penalty, but rather are liquidated damages in a reasonable amount that will compensate Parent and MergerCo hereto expressly acknowledge Merger Sub in the circumstances in which such Termination Fee and agree thatreimbursement of expenses are payable, with respect to any termination (iv) in the event that the Termination Fee and reimbursement of this Agreement expenses become payable and are paid by the Company pursuant to this Section 9.1(c)(i7.2, the Termination Fee and reimbursement of expenses shall be the sole and exclusive remedy of Parent and Merger Sub against the Company, its Subsidiaries and each of their respective former, current and future affiliates, representatives and permitted assignees for any loss or damage suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder, and (v) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount event the Termination Fee and the Parent/MergerCo Expenses are payable reimbursement of expenses is paid in accordance with this Section 9.2(b) hereof7.2, the payment none of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Company, its Subsidiaries or any of their respective assetsformer, current and future affiliates, representatives and permitted assignees shall have any further liability or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available obligation to Parent and MergerCo. The parties hereto expressly acknowledge and agree or Merger Sub relating to or arising out of this Agreement, the transactions contemplated hereby or in respect of any other document or theory of law or equity or in respect of oral representations made or alleged to be made in connection herewith or therewith; provided that, nothing contained in light of the difficulty of accurately determining actual damages with respect to the foregoing upon this Section 7.2 shall relieve any termination Person from liability for fraud or any willful breach of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either HRB or Xenith as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effect, without and none of HRB, Xenith, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability on the part of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Sections 6.2(b) and this Section 8.2 and Article IX (other than Section 9.1) shall survive any termination of this Agreement, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, neither HRB nor Xenith shall relieve be relieved or released from any party from liability for liabilities or damages arising out of its willful and material breach of any fraud or willful breach provision of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) event that after the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates date of this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, and prior to the Special Meetingtermination of this Agreement, (i) an a bona fide Xenith Acquisition Proposal shall have been made known to the Board of Directors or senior management of Xenith or has been made directly to the Company's stockholders its shareholders generally or any person shall have publicly announced an a Xenith Acquisition Proposal with respect to Xenith and (A) thereafter this Agreement is terminated by HRB pursuant to Section 8.1(g)(ii) or solicited proxies by either HRB or consents in opposition Xenith pursuant to Section 8.1(c) and the Requisite Xenith Vote has not been obtained or (B) thereafter this Agreement is terminated by HRB pursuant to Section 8.1(d), and (C) prior to the Merger and date that is twelve (ii) within nine (912) months immediately following after the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter termination, Xenith enters into a definitive agreement or consummates a transaction with respect thereto. Notwithstanding to a Xenith Acquisition Proposal (whether or not the foregoingsame Xenith Acquisition Proposal as that referred to above), in no event shall then Xenith shall, on the Company be obligated earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay HRB, by wire transfer of same day funds, a fee equal to pay $4,000,000 (the Liquidated Amount or the Parent/MergerCo Expenses more than once. For “Termination Fee”); provided, that for purposes of this Section 9.28.2(b), "Parent/MergerCo Expenses" all references in the definition of Xenith Acquisition Proposal to “15%” shall be an amount equal instead refer to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000“50%”.
(c) Any payment of In the Liquidated Amount required event that this Agreement is terminated by HRB pursuant to Section 9.2(b8.1(f) hereof or by Xenith pursuant to Section 8.1(g)(ii), then Xenith shall be payable by the Company to MergerCo pay HRB, by wire transfer of immediately available funds (i) in same day funds, the case of clause (W) or (Y) thereof, within three (3) business days after Termination Fee on the date of termination, .
(iid) in In the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating event that this Agreement is terminated by Xenith pursuant to Section 9.1(c)(i8.1(e) hereofor by HRB pursuant to Section 8.1(g)(i), in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof then HRB shall be payable by the Company to MergerCo pay Xenith, by wire transfer of immediately available funds promptly following receipt by same day funds, the Company Termination Fee on the date of reasonable documentation of all Parent/ MergerCo Expensestermination.
(de) Notwithstanding anything to the contrary in this Agreementherein, Parent and MergerCo hereto expressly acknowledge and agree that, with respect but without limiting the right of any party to any termination of this Agreement pursuant to Section 9.1(c)(i) recover liabilities or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofextent permitted herein, in no event shall Parent either party be required to pay the Termination Fee more than once.
(f) Each of HRB and Xenith acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if HRB or MergerCo (A) seek Xenith fails promptly to pay the amount due pursuant to this Section 8.2, and, in order to obtain any recovery or such payment, the other party commences a suit which results in a judgment against the Company non-paying party for the Termination Fee or any portion thereof, such non-paying party shall pay the costs and expenses of the Company Subsidiaries other party (including attorneys’ fees and expenses) in connection with such suit. In addition, if HRB or Xenith, as the case may be, fails to pay the amounts payable pursuant to this Section 8.2, then such party shall pay interest on such overdue amounts at a rate per annum equal to the “prime rate” (as announced by JPMorgan Chase & Co. or any successor thereto) in effect on the date on which such payment was required to be made for the period commencing as of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) the date that such overdue amount was originally required to be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagespaid.
Appears in 2 contracts
Sources: Merger Agreement (Xenith Bankshares, Inc.), Agreement and Plan of Reorganization (Hampton Roads Bankshares Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereofExcept as provided in this Section 6.2, in the event of termination of this Agreement by either the Company or Parent as provided in Section 6.1, this Agreement (other than Section 4.8(b), 4.12, 6.2, 6.3 and Article 7) shall forthwith become void and there shall be no liability or obligation on the part of Parent, Sub or the Company or their respective Representatives; provided, that the termination of this Agreement shall not relieve any Party from any liability or damage (which the parties acknowledge and agree shall not be limited to the reimbursement of expenses or out-of-pocket costs, and may include to the extent proven the benefit of the bargain lost by a party’s stockholders (taking into consideration relevant matters including other combination opportunities and the time value of money), which shall be deemed in such event to be damages of such party) as a result of any fraud or intentional and material breach of this Agreement by any party.
(b) If (x) Parent shall terminate this Agreement pursuant to Sections 6.1(c)(i) or 6.1(c)(ii)(B) or (y) Parent or the Company shall terminate this Agreement pursuant to Sections 6.1(b)(i) (provided that the Company Shareholders’ Meeting has not yet been held) or 6.1(b)(iii), and, in either case (x) or (y), at any time after the date of this Agreement and prior to the termination of this Agreement a Company Acquisition Proposal shall have been publicly disclosed and not publicly withdrawn, then (A) the Company shall pay Parent the Expense Reimbursement within one (1) Business Day after Parent’s demand therefor and (B) if within twelve (12) months after such termination, the Company enters into a Company Acquisition Agreement or consummates a Company Acquisition Proposal, then the Company shall pay to Parent an amount equal to $54,000,000 (the “Company Termination Fee”) by wire transfer of same day funds on the earlier of the date of entry into the Company Acquisition Agreement and such consummation.
(c) If (x) Parent shall terminate this Agreement pursuant to Sections 6.1(c)(ii)(A), (C) or (D) or (y) the Company shall terminate this Agreement pursuant to Section 9.1 hereof6.1(d)(ii) then, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4either case, the third sentence of Section 7.16 Company shall pay to Parent (1), not later than two (2) Business Days following such termination, an amount equal to the Company Termination Fee and Articles 9 and 10(2) the Expense Reimbursement within one (1) Business Day after Parent’s demand therefor; provided, however, that nothing contained if a termination under Section 6.1(c)(ii)(A) is pursuant to clause (ii) thereof because a Company Intervening Event Change in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach Recommendation has occurred, then in lieu of this Agreement.
(b) The the Company Termination Fee, the Company shall pay to MergerCo Parent an amount in cash equal to (A) $5,000,000 40,500,000 (the "Liquidated Amount"“Company Intervening Event Termination Fee”) (and, for the avoidance of doubt, the Expense Reimbursement). In addition, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates Parent shall terminate this Agreement under Section 9.1(d)(iin a situation where it receives the Company Intervening Event Termination Fee and within twelve (12) as months after such termination, the Company enters into a result Company Acquisition Agreement or consummates a Company Acquisition Proposal, then the Company shall pay to Parent an amount equal to $13,500,000 on the earlier of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) date of entry into the Company terminates Acquisition Agreement and such consummation. For the elimination of doubt, this amount shall be in addition to the Company Intervening Event Termination Fee and the Expense Reimbursement that the Company shall pay to Parent pursuant to this Section 6.2(c).
(d) If the Company shall terminate this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either 6.1(d)(iii), then the Company or MergerCo terminates this Agreement pursuant shall pay to Section 9.1(b)(i), if, prior to Parent the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of Company Termination Fee concurrently with such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Expense Reimbursement within one (1) Business Day after Parent/MergerCo Expenses more than once. ’s demand therefor.
(e) For purposes of this Section 9.26.2, "Parent/MergerCo Expenses" (A) the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 4.7(d)(ii), except that the reference to “fifteen percent (15%)” in the definition of “Company Acquisition Proposal” shall be an amount equal deemed to be a reference to “fifty percent (50%)” and (B) the reasonable term “Expense Reimbursement” shall mean Parent’s documented out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with investigating, negotiating, documenting and implementing this Agreement and the Transactions, including without limitation, fees and disbursements transactions contemplated hereby not in excess of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf an aggregate of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,0003,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Opko Health, Inc.), Merger Agreement (Bio Reference Laboratories Inc)
Effect of Termination. (a) Subject In the event of any termination of this Agreement as provided in Section 8.1, the obligations of the Parties hereunder shall terminate and there shall be no liability on the part of any Party hereto with respect thereto, except for the provisions of Section 2.1(c), this Section 8.2 and ARTICLE IX, each of which shall remain in full force and effect. Notwithstanding anything herein to Sections 9.2(bthe contrary, nothing herein shall relieve any party from liability for fraud or any willful and material breach in connection with this Agreement or the transactions contemplated by this Agreement.
(b) In the event that:
(i) this Agreement is terminated pursuant to Section 8.1(c)(i), Section 8.1(c)(ii), Section 8.1(c)(iii) or Section 8.1(d)(ii), then the Company shall pay to Parent the Termination Fee and its Reimbursable Expenses up to $5,000,000. The Company shall pay such Termination Fee by wire transfer of immediately available funds by the second (d2nd) hereof, Business Day following such termination in the event case of the termination of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"8.1(c)(i), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i8.1(c)(ii) or Section 7.1(a)(iii8.1(c)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of concurrently with such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i8.1(d)(ii);
(ii) or this Agreement is terminated pursuant to Section 9.1(d)(ii8.1(b)(i) hereof(provided that at the time of such termination, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment none of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages events or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any conditions set forth in subsection (ii) of the Company Subsidiaries first paragraph of Annex I or subparagraph (a) of Annex I shall exist) and (x) at any time after the date of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect prior to the foregoing upon date of termination, a Takeover Proposal shall have been publicly announced or communicated to the Company Board of Directors and not subsequently withdrawn (or any termination Person shall have publicly announced or communicated to the Company Board of this Agreement pursuant Directors an intention, whether or not conditional, to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount make a Takeover Proposal and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofintention is not subsequently withdrawn), and (iiy) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement to consummate or consummates the transactions contemplated by any Takeover Proposal, then the Company shall be in full pay to Parent, by wire transfer of immediately available funds, an amount equal to the Termination Fee and complete satisfaction of any and all damages arising as a result its Reimbursable Expenses up to $5,000,000 by the second (2nd) Business Day following the earlier of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against date the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.enters into a
Appears in 2 contracts
Sources: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of that Chancellor or Capstar terminates this Agreement pursuant to as provided in Section 9.1 hereof8.1(a), 8.1(b)(iii) or 8.1(b)(iv), this Agreement shall forthwith become null and void and have no effect, without any liability or obligation on the part of any party hereto Chancellor or its affiliatesCapstar, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for other than the agreements contained in Section 7.4, the third last sentence of Section 7.16 5.3 and Articles 9 Sections 2.10, 3.7, 8.2 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement11.2.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates event that this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement is terminated by Chancellor pursuant to Section 9.1(c)(i8.1(b)(v) or (Y8.1(b)(vi) MergerCo terminates this Agreement or by Capstar or Chancellor pursuant to Section 9.1(d)(ii8.1(b)(i) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(b)(vii), if, prior to the Special Meeting, (i) an Acquisition Proposal Capstar shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other promptly reimburse Chancellor for all substantiated out-of-pocket costs and expenses incurred by Parent and MergerCo them in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectivelytransactions contemplated hereby, including, without limitation, costs and expenses of accountants, attorneys and financial advisors. In the "Parent/MergerCo Expenses"event that this Agreement is terminated by Capstar pursuant to Section 8.1(b)(v) or by Chancellor or Capstar pursuant to Section 8.1(b)(ii) or 8.1(b)(viii); provided, howeverChancellor shall promptly reimburse Capstar for all substantiated out-of-pocket costs and expenses incurred by it in connection with this Agreement and the transactions contemplated hereby, that the aggregate amount including, without limitation, costs and expenses of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000accountants, attorneys and financial advisors.
(c) Any payment of In the Liquidated Amount required event that this Agreement is terminated by Capstar pursuant to Section 9.2(b8.1(b)(ix) hereof shall be payable or by Chancellor pursuant to Section 8.1(b)(x), the Company party electing to MergerCo terminate this Agreement shall, concurrently with such termination, pay to the non-terminating party (by wire transfer of immediately available funds funds) an amount of $50,000,000 in cash (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses"Termination Fee").
(d) Notwithstanding anything This Agreement shall not be deemed to have been validly terminated until all payments contemplated by Section 8.2(b) and 8.2(c) shall have been made in full. In the contrary event of a termination pursuant to Sections 8.1(b)(i), 8.1(b)(ii), 8.1(b)(v), 8.1(b)(vi), 8.1(b)(vii) or 8.1(b)(viii), the reimbursement of expenses by the breaching party pursuant to Section 8.2(b) shall be the parties sole remedy unless the termination resulted from a willful material breach of the representations, warranties, covenants or other agreements in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to in which case the non-breaching party may seek damages or any other appropriate remedy at law or in equity. In the event of a termination of this Agreement pursuant to Section 9.1(c)(iSections 8.1(b)(ix) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof8.1(b)(x), the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages Termination Fee by Capstar or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assetsChancellor, or against any of their respective directorsas applicable, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii8.2(c) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesnon-terminating party's sole remedy.
Appears in 2 contracts
Sources: Merger Agreement (Chancellor Media Corp of Los Angeles), Agreement and Plan of Merger (Hicks Thomas O)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either AMB or ProLogis as provided in Section 9.1 hereof7.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto AMB or its affiliatesProLogis or their respective officers, directors or trustees, directorsexcept with respect to Section 5.2(b), officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.45.7, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) 7.2 and Article VIII, which shall relieve survive such termination and except that no party shall be re- lieved or released from any party from liability for any liabilities or damages arising out of its fraud or willful and material breach of this Agreement.
(b) The Company AMB shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount")ProLogis, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds funds, the AMB Termination Fee in the following circumstances as described below:
(i) in the case of clause if (WA) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating ProLogis shall terminate this Agreement pursuant to Section 9.1(c)(i7.1(e)(ii) hereofand (B) at any time after the date of this Agreement but prior to the date of such termination, in an Acquisition Proposal for AMB shall have been publicly announced or otherwise communicated to the senior management or Board of Directors of AMB and not withdrawn prior to the date of such termination, then AMB shall pay ProLogis the AMB Termination Fee within three Business Days after termination of this Agreement;
(ii) if (A) either party shall terminate this Agreement pursuant to Section 7.1(g) because the AMB Required Vote shall not have been received and (B) at any such case to an account designated by MergerCo. Any payment time after the date of this Agreement and at or before the date of the Parent/MergerCo Expenses required by AMB Stockholders Meeting, an Acquisition Proposal for AMB shall have been publicly announced and not withdrawn prior to the date of the AMB Stockholders Meeting, then AMB shall pay ProLogis the AMB Termination Fee within three Business Days after termination of this Agreement;
(iii) if (A) ProLogis shall terminate this Agreement pursuant to Section 9.2(b7.1(e)(i) hereof and (B) within twelve (12) months of the date of such termination of this Agreement, AMB or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Proposal, then AMB shall pay ProLogis the AMB Termination Fee within three Business Days after the earlier of execution of such agreement or consummation of such Acquisition Proposal (it being understood that, for purposes of this clause (iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.4(a) except that the reference to “20% or more” in the definition of “Acquisition Proposal” shall be payable by deemed to be a reference to “35% or more”); or
(iv) if ProLogis shall terminate this Agreement pursuant to Section 7.1(e)(iii), then AMB shall pay ProLogis the Company to MergerCo AMB Termination Fee within three Business Days after the termination of this Agreement.
(c) ProLogis shall pay AMB, by wire transfer of immediately available funds promptly funds, the ProLogis Termination Fee in the following receipt by circumstances as described below:
(i) if (A) AMB shall terminate this Agreement pursuant to Section 7.1(d)(ii), and (B) at any time after the Company date of reasonable documentation this Agreement but prior to the date of all Parent/ MergerCo Expensessuch termination, an Acquisition Proposal for ProLogis shall have been publicly announced or otherwise communicated to the senior management or Board of Trustees of ProLogis and not withdrawn prior to the date of such termination, then ProLogis shall pay AMB the ProLogis Termination Fee within three Business Days after termination of this Agreement;
(ii) if (A) either party shall terminate this Agreement pursuant to Section 7.1(g) because the ProLogis Required Vote shall not have been received, and (B) at any time after the date of this Agreement and at or before the date of the ProLogis Shareholders Meeting, an Acquisition Proposal for ProLogis shall have been publicly announced and not withdrawn prior to the date of the ProLogis Shareholders Meeting, then ProLogis shall pay AMB the ProLogis Termination Fee within three Business Days after termination of this Agreement;
(iii) if (A) AMB shall terminate this Agreement pursuant to Section 7.1(d)(i), and (B) within twelve (12) months of the date of such termination of this Agreement, ProLogis or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Proposal, then ProLogis shall pay AMB the ProLogis Termination Fee within three Business Days after the earlier of execution of such agreement or consummation of such Acquisition Proposal (it being understood that, for purposes of this clause (iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.4(a) except that the reference to “20% or more” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “35% or more”); or
(iv) if AMB shall terminate this Agreement pursuant to Section 7.1(d)(iii), then ProLogis shall pay AMB the ProLogis Termination Fee within three Business Days after termination of this Agreement.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of If AMB shall terminate this Agreement pursuant to (i) Section 9.1(c)(i7.1(d)(i) or due solely to a Change in ProLogis Recommendation pursuant to Section 9.1(d)(ii) hereof5.4(b)(v), or (ii) Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where 7.1(f), ProLogis shall pay the Liquidated Amount and the Parent/MergerCo AMB Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any AMB within three Business Days after termination of this Agreement.
(e) If ProLogis shall terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute Section 7.1(e)(i) due solely to a reasonable estimate of Change in AMB Recommendation pursuant to Section 5.4(b)(v), or (ii) Section 7.1(f), AMB shall pay the damages that will be suffered by reason of any such proposed or actual ProLogis Expenses to ProLogis within three Business Days after termination of this Agreement pursuant Agreement.
(f) In no event shall this Section 7.2 require (i) AMB to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofpay any amount in excess of the sum of the AMB Termination Fee plus the ProLogis Expenses, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be ProLogis to pay any amount in full and complete satisfaction of any and all damages arising as a result excess of the foregoing. Except for nonpayment sum of the amounts ProLogis Termination Fee plus the AMB Expenses, in each case except as set forth in Section 9.2(b), Parent 7.2(g) or in the case of such party’s fraud or willful and MergerCo hereby agree that, upon any termination material breach of this Agreement pursuant Agreement.
(g) If either AMB or ProLogis fails to pay all amounts due to the other party under this Section 9.1(c)(i7.2 on the dates specified, then either AMB or ProLogis, as applicable, shall pay all costs and expenses (including legal fees and expenses) incurred by such other party in connection with any action or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where proceeding (including the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages filing of any kindlawsuit) taken by it to collect such unpaid amounts, includingtogether with interest on such unpaid amounts at the prime lending rate prevailing at such time, without limitationas published in the Wall Street Journal, consequential, indirect or punitive damagesfrom the date such amounts were required to be paid until the date actually received by such other party.
Appears in 2 contracts
Sources: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto or its affiliateshereto, trusteesexcept with respect to Sections 6.3(b), directorsthis Section 8.2, officers or stockholders Section 8.3 and all rights and obligations of any party hereto Article IX, which shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10survive such termination; provided, however, that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful and material breach of this Agreementhereof.
(b) The In the event that this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii) or by Parent pursuant to Section 8.1(e)(ii), Section 8.1(e)(iii) or Section 8.1(f) then the Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 87,244,000 (the "Liquidated Amount"“Company Termination Fee”) to Parent, at or prior to the time of termination in the case of a termination pursuant to Section 8.1(d)(ii) or as promptly as reasonably practicable (and in any event within two business days after termination) in the case of a termination pursuant to Section 8.1(e)(ii), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i8.1(e)(iii) or Section 7.1(a)(iii8.1(f), or payable by wire transfer of same day funds.
(Xc) In the event that this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 9.1(c)(i8.1(c) or (Y) MergerCo terminates this Agreement by Parent pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(e)(i), if, but only if (a) after the date hereof and prior to the Special Meeting, (i) such termination an Acquisition Proposal shall have been made to the Company or shall have been made directly to the Company's stockholders holders of any class of Company Common Stock generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional and whether or not withdrawn) to make an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (iib) within nine (9) 12 months immediately following the date of such termination termination, (i) the Company merges with or into, or is acquired, directly or indirectly, by merger or otherwise by, a third party, (ii) a third party, directly or indirectly, acquires more than 50% of the total assets of the Company and its subsidiaries, taken as a whole, (iii) a third party, directly or indirectly, acquires more than 50% of the party who outstanding shares of the Company Common Stock or (iv) the Company or any of its subsidiaries shall have made such Acquisition Proposal entered into any contract or agreement providing for any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding of the foregoingactions described in any of the immediately preceding clauses (i) through (iii), then, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2each case, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
pay the Company Termination Fee to Parent as promptly as reasonably practicable (c) Any and in any event within two business days after the event giving rise to the payment of the Liquidated Amount required by Company Termination Fee pursuant to this Section 9.2(b) hereof shall be 8.2(c)), payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensessame day funds.
(d) Notwithstanding anything to Each of the contrary Company, Parent and Merger Sub acknowledge that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, without these agreements, neither the Company nor Parent would have entered into this Agreement. In the event that the Company shall fail to pay the Company Termination Fee when due, the Company shall reimburse Parent for all reasonable costs and expenses actually incurred by Parent (including reasonable fees and expenses of counsel) in connection with respect to any termination the collection of such fee and the enforcement of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages8.2.
Appears in 2 contracts
Sources: Merger Agreement (Timberland Co), Agreement and Plan of Merger (V F Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Center Financial or Nara as provided in Section 9.1 hereof7.1, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of any party hereto Nara or its affiliates, trustees, Center Financial or their respective officers or directors, officers or stockholders except with respect to Sections 3.1(w), 3.2(w), 5.2(b) and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.45.8, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) 7.2 and Article VIII, which shall relieve survive such termination and except that no Party shall be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful and material breach of this Agreement.
(b) The Company Nara shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount")Center Financial, plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds funds, the sum of $10,000,000 (the “Nara Termination Fee”) if this Agreement is terminated as follows:
(i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating if Center Financial shall terminate this Agreement pursuant to Section 9.1(c)(i7.1(e), then Nara shall pay the Nara Termination Fee on the business day following such termination;
(ii) hereof, in if (A) either Party shall terminate this Agreement pursuant to Section 7.1(g) because the Required Nara Vote shall not have been received and (B) at any such case to an account designated by MergerCo. Any payment time after the date of this Agreement and at or before the date of the Parent/MergerCo Expenses Nara Stockholders Meeting an Acquisition Proposal with respect to (1) 50% or more of the outstanding shares of Nara Common Stock, (2) 50% or more of the consolidated assets of Nara and its Subsidiaries or (3) any liquidation, dissolution or similar transaction involving Nara or Nara Bank, shall have been publicly announced or is otherwise publicly known (a “Public Proposal”), then Nara shall pay 25% of the Nara Termination Fee on the business day following such termination; and if (C) within eighteen (18) months of the date of such termination of this Agreement, Nara or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Proposal, then Nara shall pay the remainder of the Nara Termination Fee upon the date of such execution or consummation; and
(iii) if (A) either Party shall terminate this Agreement pursuant to Section 7.1(c) or Center Financial shall terminate this Agreement pursuant to Section 7.1(f), (B) at any time after the date of this Agreement and before such termination there shall have been a Public Proposal with respect to Nara relating (1) 50% or more of the outstanding shares of Nara Common Stock, (2) 50% or more of the consolidated assets of Nara and its Subsidiaries or (3) any liquidation, dissolution or similar transaction involving Nara or Nara Bank, and (C) following the occurrence of such Public Proposal, Nara shall have intentionally breached (and not cured after notice thereof) any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach shall have resulted in a failure of the conditions set forth in Sections 6.3(a) or 6.3(b), as the case may be, or otherwise shall have materially contributed to the failure of the Effective Time to occur prior to the termination of this Agreement, then Nara shall pay 25% of the Nara Termination Fee on the business day following such termination; and if (D) within eighteen (18) months of the date of such termination of this Agreement, Nara or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Proposal, then Nara shall pay the remainder of the Nara Termination Fee upon the date of such execution or consummation. If Nara fails to pay all amounts due to Center Financial on the dates specified, then Nara shall pay all costs and expenses (including legal fees and expenses) incurred by Center Financial in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in the Wall Street Journal, from the date such amounts were required to be paid until the date actually received by Section 9.2(bCenter Financial.
(c) hereof Center Financial shall be payable by the Company to MergerCo pay Nara, by wire transfer of immediately available funds promptly following receipt by funds, the Company sum of reasonable documentation of all Parent/ MergerCo Expenses.$10,000,000 (the “Center Financial Termination Fee”) if this Agreement is terminated as follows:
(di) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of if Nara shall terminate this Agreement pursuant to Section 9.1(c)(i7.1(d), then Center Financial shall pay the Center Financial Termination Fee on the business day following such termination;
(ii) or Section 9.1(d)(iiif (A) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses either Party shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of terminate this Agreement pursuant to Section 9.1(c)(i7.1(g) because the Required Center Financial Vote shall not have been received and (B) at any time after the date of this Agreement and at or Section 9.1(d)(iibefore the date of the Center Financial Stockholders Meeting there shall have been a Public Proposal with respect to (1) hereof50% or more of the outstanding shares of Center Financial Common Stock, (2) 50% or more of the consolidated assets of Center Financial and its Subsidiaries or (3) any liquidation, dissolution or similar transaction involving Center Financial or Center Bank, then Center Financial shall pay 25% of the Center Financial Termination Fee on the business day following such termination; and if (C) within eighteen (18) months of the date of such termination of this Agreement, Center Financial or any of its Subsidiaries executes any definitive agreement with respect to, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where consummates, any Acquisition Proposal, then Center Financial shall pay the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate remainder of the damages that will be suffered by reason Center Financial Termination Fee upon the date of any such proposed execution or actual termination of consummation; and
(iii) if (A) either Party shall terminate this Agreement pursuant to Section 9.1(c)(i7.1(c) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) Nara shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of terminate this Agreement pursuant to Section 9.1(c)(i7.1(f), (B) at any time after the date of this Agreement and before such termination there shall have been a Public Proposal with respect to (1) 50% or more of the outstanding shares of Center Financial Common Stock, (2) 50% or more of the consolidated assets of Center Financial and its Subsidiaries or (3) any liquidation, dissolution or similar transaction involving Center Financial or Center Bank, and (C) following the occurrence of such Public Proposal, Center Financial shall have intentionally breached (and not cured after notice thereof) any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach shall have resulted in a failure of the conditions set forth in Sections 6.2(a) or Section 9.1(d)(ii) hereof6.2(b), as the case may be, or Section 9.1(b)(iotherwise shall have materially contributed to the failure of the Effective Time to occur prior to the termination of this Agreement, then Center Financial shall pay 25% of the Center Financial Termination Fee on the business day following such termination; and if (D) or Section 9.1(d)(iwithin eighteen (18) hereof in circumstances where months of the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofdate of such termination of this Agreement, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company Center Financial or any of the Company its Subsidiaries or executes any of their respective assetsdefinitive agreement with respect to, or against consummates, any Acquisition Proposal, then Center Financial shall pay the remainder of their respective directorsthe Center Financial Termination Fee upon the date of such execution or consummation. If Center Financial fails to pay all amounts due to Nara on the dates specified, officers, employees, partners, managers, members then Center Financial shall pay all costs and expenses (including legal fees and expenses) incurred by Nara in connection with any action or shareholders, and proceeding (B) be entitled to seek or obtain any other damages including the filing of any kindlawsuit) taken by it to collect such unpaid amounts, includingtogether with interest on such unpaid amounts at the prime lending rate prevailing at such time, without limitationas published in the Wall Street Journal, consequential, indirect or punitive damagesfrom the date such amounts were required to be paid until the date actually received by Nara.
Appears in 2 contracts
Sources: Merger Agreement (Center Financial Corp), Merger Agreement (Nara Bancorp Inc)
Effect of Termination. (a) Subject Except to Sections 9.2(bthe extent provided in Section 9.02(b) and (d) hereofSection 9.02(c), in the event of the termination of this Agreement and the abandonment of the Merger pursuant to Section 9.1 hereofthis Article 9, this Agreement shall forthwith become null and void and have of no effect, without effect with no liability to any liability Person on the part of any party hereto (or any of its affiliatesRepresentatives or Affiliates); provided that, trusteesnotwithstanding anything in this Agreement to the contrary, directors, officers or stockholders and all rights and obligations (i) no such termination shall relieve any Party of any liability or damages to any other party hereto shall cease except for resulting from any fraud in connection with the agreements contained in Section 7.4, transactions contemplated by this Agreement or Willful Breach of this Agreement and (ii) the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained provisions set forth in this Section 9.2(a9.02 and in Article 10 (and any related definitions contained in any such Sections or Article) and the Confidentiality Agreement shall relieve any party from liability for any fraud or willful breach survive the termination of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) Parent or its designee, by wire transfer of immediately available funds, a termination fee of $5,000,000 420,000 (the "Liquidated Amount"“Termination Fee”), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(iis terminated:
(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) by either the Company or MergerCo terminates this Agreement Parent, in each case, pursuant to Section 9.1(b)(i9.01(b)(i) or Section 9.01(b)(iii), ifor by Parent pursuant to Section 9.01(c)(ii)), prior to the Special Meetingand, in each case, (iA) an Acquisition Proposal shall have been made to the Company or made directly to the Company's ’s stockholders generally or shall otherwise have become publicly known, or any person Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal, (B) such Acquisition Proposal (or solicited proxies or consents publicly announced intention) shall not have been withdrawn without qualification, in opposition each case, (1) prior to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination pursuant to Section 9.01(b)(i) or Section 9.01(c)(ii), or (2) prior to the date of the Company Stockholders’ Meeting, with respect to termination pursuant to Section 9.01(b)(iii), and (C) at any time within 12 months after such termination, (1) the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal or (2) a transaction contemplated by any Acquisition Proposal shall have been consummated (provided that for purposes of this clause (C), each reference to “15%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”); in which case the Termination Fee shall be paid immediately prior to or concurrently with the occurrence of either of the applicable events described in the foregoing clause (C); Table of Contents
(ii) by Parent pursuant to Section 9.01(c)(i) or Section 9.01(c)(iii); in which case the Termination Fee shall be paid no later than three Business Days after the date of such termination;
(iii) by either Parent or the Company pursuant to Section 9.01(b)(i) or Section 9.01(b)(iii), and, in each such case, at the time of such termination, Parent had the right to terminate this Agreement pursuant to Section 9.1(c)(i9.01(c)(i) or Section 9.1(d)(ii9.01(c)(iii); in which case the Termination Fee shall be paid no later than, in the case of such termination by Parent, three Business Days or, in the case of such termination by the Company, one Business Day, in each case, after the date of such termination; or
(iv) hereofby the Company pursuant to Section 9.01(d)(i); in which case the Termination Fee shall be paid concurrently with, and as a condition to, the effectiveness of such termination.
(v) Except where the Company is required to pay the Termination Fee to Parent pursuant to Section 9.02(b) (in which case any amounts previously paid by the Company under this Section 9.02(b) shall be deducted from the Termination Fee payable by the Company), in the event that this Agreement is terminated by either Parent or the Company pursuant to Section 9.01(b)(iii), or by Parent pursuant to Section 9.1(b)(i9.01(c)(ii), the Company shall pay all out-of-pocket expenses up to and not more than $420,000 (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants to a party hereto and its Affiliates) incurred by ▇▇▇▇▇▇, Merger Sub and their Affiliates or on their behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, and all other matters related to the transactions contemplated by this Agreement, which payment shall be made to Parent not later than three Business Days after delivery to the Company of notice of demand for payment setting forth in reasonable detail all such expenses (which demand may be supplemented and updated from time to time until the 90th day after Parent or Merger Sub delivers such notice of demand for payment).
(c) The Company hereby acknowledges and agrees that the agreements contained in this Section 9.1(d)(i9.02 are an integral part of the transactions contemplated hereby, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to promptly pay any amounts due pursuant to this Section 9.02 and, in order to obtain such payment, Parent or Merger Sub, as applicable, commences a suit that seeks a judgment against the Company for the fees or expenses set forth in this Section 9.02 or any portion of such fees or expenses, the prevailing party shall pay the other party’s, or its designee, its costs and expenses (including reasonable attorneys’ fees, costs and expenses) hereof in circumstances connection with such suit, together, if Parent or Merger Sub is the prevailing party, with interest on the amount of the fee at the prime rate 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 (all such foregoing expenses, costs and interests, the “Recovery Cost”). The parties acknowledge and agree that the Company shall not be obligated to pay the Termination Fee on more than one occasion and the payment of the Company Termination Fee (together with any Recovery Cost) shall be the sole monetary remedy of Parent in the event of a termination of this Agreement where the Liquidated Amount and Company Termination Fee is payable by the Parent/MergerCo Expenses are payable Company in accordance with Section 9.2(b9.02(b) hereof, the payment of the Liquidated Amount and the Company Termination Fee (together with any Recovery Cost) is actually paid to Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any . Table of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.Contents
Appears in 2 contracts
Sources: Merger Agreement (Timber Pharmaceuticals, Inc.), Merger Agreement (Timber Pharmaceuticals, Inc.)
Effect of Termination. 14.1 Upon termination of this Agreement by the Licensor in accordance with Clause 13:
14.1.1 subject to Clause 14.2, the Licence shall cease immediately and the Licensee shall have no right whatsoever to assign or transfer this Agreement by operation of law or otherwise to any third party;
14.1.2 subject to Clause 14.2, the Licensee shall cease to manufacture and sell or offer or dispose of any products or services of any type or description under or by reference to the Marks or any confusingly similar ▇▇▇▇;
14.1.3 the Licensee shall return to the Licensor all confidential, or proprietary information supplied by or relating to the Licensor (a) Subject to Sections 9.2(bincluding all copies in whatever form of any such information) and (d) hereofshall not use that information for any purpose;
14.1.4 the Licensee shall co-operate with the Licensor in cancelling any registration of this Agreement as a licence or of the Licensee as a permitted user of the Marks; and
14.1.5 all sub-licences granted by the Licensee shall terminate automatically save that the Licensor may, in the event of at its option, take over any or all sub-licences.
14.2 After the termination of this Agreement in accordance with Clause 13 the Licensee may, for a period of two months from that date, continue to sell any Licensed Products to which the Marks applied prior to the Termination Date on the terms set out in this Agreement.
14.3 Termination of this Agreement pursuant to Section 9.1 hereof, this Agreement Clause 13 shall forthwith become null and void and have no effect, be without prejudice to the right to seek compensation for the breach by any liability on the part party of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach provisions of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any 14.4 Upon termination of this Agreement in accordance with Clauses 13.1.2, 13.1.3, 13.1.4, 13.1.5 and 13.1.6 (but not for the avoidance of doubt Clause 13.1.1), the Licensor shall pay to the Licensee an amount agreed between the parties in immediately available US Dollar funds reflecting the fair market value of this Agreement at the time of such termination.
14.5 In the event that the parties cannot in good faith agree on the amount to be paid pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofClause 14.4 within 30 days of termination under Clause 13.1.5, the matter may be referred by either party for determination by the Expert. The Expert shall be appointed by agreement between the parties, or Section 9.1(b)(iif the parties cannot agree on such an appointment within 7 days of a request to refer the matter for expert determination, by the president of the Institute of Chartered Accountants. The following terms of reference shall apply:
14.5.1 the parties shall give the Expert all reasonable co-operation;
14.5.2 the Expert may have access to all relevant documents of the parties, subject to any confidentiality provisions, within the time limits laid down by the Expert;
14.5.3 the parties may make representations and submissions to the Expert but there shall be no formal hearing;
14.5.4 the Expert shall make the determination within 30 days of appointment as Expert and shall notify the parties of the determination in writing;
14.5.5 in giving such determination the Expert shall have regard to all relevant factors and commonly-accepted valuation methodologies and shall specify the methodology or methodologies used to calculate the amount payable;
14.5.6 the Expert shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the parties (in the absence of fraud or Section 9.1(d)(i) hereof in circumstances where manifest error); and
14.5.7 the Liquidated Amount and expenses of any such determination by the Parent/MergerCo Expenses are payable Expert shall be borne equally between the parties.
14.6 In the event the Licensee becomes a debtor under Chapter 7 of the Bankruptcy Code, the Licensee or any trustee appointed under the Licencees’ bankruptcy may not assume or assign this Agreement in accordance with Section 9.2(b365(a) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesBankruptcy Code.
Appears in 2 contracts
Sources: Trade Mark Licence (Central European Distribution Corp), Trade Mark Licence (Central European Distribution Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant as provided in Section 7.1, and subject to the provisions of Section 9.1 hereof8.1, this Agreement shall forthwith become null void, and void and have there shall be no effect, without any liability or obligation on the part of any party hereto or its affiliatesof the parties, trustees, directors, officers or stockholders and all rights and obligations except (i) the provisions of any party hereto shall cease except for the agreements contained in this Section 7.47.2, the third last sentence of Section 7.16 5.2, Section 5.5 and Articles 9 Article VIII shall survive any such termination of this Agreement and 10; provided, however, that no such termination shall relieve either party from any liability or obligation under such provisions and (ii) nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful material pre-termination breach of this AgreementAgreement or fraud.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates If this Agreement under is terminated (i) by Marriott pursuant to Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) 7.1(e); provided, that if either Marriott or Section 7.1(a)(iii), or (X) the Company terminates Starwood terminate this Agreement pursuant to Section 9.1(c)(i7.1(b)(i) or (YSection 7.1(b)(ii) MergerCo terminates at a time when Marriott would have been entitled to terminate this Agreement pursuant to Section 9.1(d)(ii7.1(e), this Agreement shall be deemed terminated pursuant to Section 7.1(e) for purposes of this Section 7.2(b), (ii) by Starwood pursuant to Section 7.1(h) or (Ziii) either the Company by Marriott or MergerCo terminates this Agreement Starwood pursuant to Section 9.1(b)(i), if, 7.1(b)(ii) and prior to the Special MeetingStarwood Stockholders Meeting there shall have been made to Starwood, (i) an Acquisition Proposal or shall have been made directly to the Company's stockholders generally of Starwood or shall otherwise have become publicly known or any person shall have publicly announced an Acquisition Proposal intention (whether or solicited proxies not conditional) to make, an offer or consents proposal for a transaction that would constitute a Starwood Alternative Transaction (substituting 50% for all 25% thresholds set forth in opposition to the Merger and definition of “Starwood Alternative Transaction” (iia “Starwood Qualifying Transaction”)) and, in the case of this clause (b)(iii), if within nine twelve months of termination of this Agreement, (9A) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal Starwood or any affiliate thereof enter of its subsidiaries enters into a definitive agreement with any Starwood Third Party with respect thereto. Notwithstanding the foregoingto a Starwood Qualifying Transaction and such Starwood Qualifying Transaction is subsequently consummated (even if after such twelve-month period) or (B) any Starwood Qualifying Transaction is consummated, in no event then Starwood shall the Company be obligated pay to pay the Liquidated Amount or the Parent/MergerCo Expenses more Marriott, not later than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (ix) in the case of clause (W) or (Y) thereofb)(i), within three (3) one business days day after the date of terminationtermination of this Agreement, (iiy) in the case of clause (Zb)(ii), simultaneously with and as a condition to such termination pursuant to Section 7.1(h) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iiiz) in the case of clause (Xb)(iii), one business day after the date the Starwood Qualifying Transaction is consummated, a termination fee of $400,000,000 (the “Termination Fee”). Notwithstanding the foregoing, no Termination Fee shall be payable by Starwood to Marriott in any circumstance in which the Marriott stockholders vote to disapprove this Agreement or the transactions contemplated hereby.
(c) thereofIf this Agreement is terminated (i) by Starwood pursuant to Section 7.1(f); provided, prior to terminating that if either Starwood or Marriott terminate this Agreement pursuant to Section 9.1(c)(i7.1(b)(i) hereofor Section 7.1(b)(iii) at a time when Starwood would have been entitled to terminate this Agreement pursuant to Section 7.1(f), this Agreement shall be deemed terminated pursuant to Section 7.1(f) for purposes of this Section 7.2(c), (ii) by Marriott pursuant to Section 7.1(g) or (iii) by Marriott or Starwood pursuant to Section 7.1(b)(iii) and prior to the Marriott Stockholders Meeting there shall have been made to Marriott, or shall have been made directly to the stockholders of Marriott or shall otherwise have become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make, an offer or proposal for a transaction that would constitute a Marriott Alternative Transaction (substituting 50% for all 25% thresholds set forth in the definition of “Marriott Alternative Transaction” (a “Marriott Qualifying Transaction”)) and, in the case of this clause (c)(iii), if within twelve months of termination of this Agreement, (A) Marriott or any of its subsidiaries enters into a definitive agreement with any Marriott Third Party with respect to a Marriott Qualifying Transaction and such Marriott Qualifying Transaction is subsequently consummated (even if after such twelve-month period) or (B) any Marriott Qualifying Transaction is consummated, then Marriott shall pay to Starwood, not later than (x) in the case of clause (c)(i), one business day after the date of termination of this Agreement, (y) in the case of clause (c)(ii), simultaneously with and as a condition to an account designated by MergerCosuch termination pursuant to Section 7.1(g) and (z) in the case of clause (c)(iii), one business day after the date the Marriott Qualifying Transaction is consummated, the Termination Fee. Any payment of Notwithstanding the Parent/MergerCo Expenses required by Section 9.2(b) hereof foregoing, no Termination Fee shall be payable by Marriott to Starwood in any circumstance in which the Company Starwood stockholders vote to MergerCo by wire transfer of immediately available funds promptly following receipt by disapprove this Agreement or the Company of reasonable documentation of all Parent/ MergerCo Expensestransactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Each Termination Fee payable under Section 9.1(c)(i7.2(b) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii7.2(c) shall be payable in full and complete satisfaction of any and all damages arising as a result of immediately available funds no later than the foregoing. Except for nonpayment of the amounts applicable date set forth in such Section. If a party fails to promptly pay to the other party any Termination Fee due under this Section 9.2(b)7.2, Parent the defaulting party shall pay the costs and MergerCo hereby agree thatexpenses (including legal fees and expenses) in connection with any action, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where including the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages filing of any kindlawsuit or other legal action, including, without limitation, consequential, indirect or punitive damagestaken to collect payment.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Marriott International Inc /Md/), Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Effect of Termination. (a) Subject If this Agreement is terminated:
(i) by Parent or the Company pursuant to Sections 9.2(bSection 7.2(b) and [failure to obtain Company Unitholder Approval] (dA) hereof, in at any time after the event of the termination date of this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, taking of the vote at the Company Unitholder Meeting (ior any adjournment or postponement thereof) an Acquisition a Company Alternative Proposal shall have been made directly to the Company's stockholders generally ’s unitholders or shall have otherwise been publicly disclosed (and, in each case, such Company Alternative Proposal shall not have been withdrawn prior to the taking of such vote), and within 12 months after the termination of this Agreement, the Company or any person of its Subsidiaries enters into a definitive agreement providing for a Company Alternative Proposal, or a Company Alternative Proposal is consummated, or (B) if the failure to obtain the Company Unitholder Approval was caused by a breach by the Company of Section 5.2 or Section 5.3;
(ii) by Parent pursuant to Section 7.4(b) [Company Change in Recommendation]; or
(iii) by the Company pursuant to Section 7.3(b) [Company Superior Proposal]; then (x) at the time of entry into such definitive agreement or consummation of such Company Alternative Proposal, in the case of clause (i)(A), or (y) at the time of such termination, in each other case, the Company shall have publicly announced an Acquisition Proposal or solicited proxies or consents pay Parent a fee of $15 million (the “Termination Fee”) in opposition cash by wire transfer to the Merger account designated by Parent in Section 7.5 of the Parent Disclosure Letter.
(b) If this Agreement is terminated by the Company or Parent pursuant to Section 7.2(b) [failure to obtain Company Unitholder Approval] (other than in any circumstances where a fee is payable under Section 7.5(a)), then the Company shall reimburse Parent for its costs and expenses (including all fees and expenses of counsel, accountants, consultants, financial advisors, financing sources and investment bankers of such party and its Affiliates) in connection with the authorization, preparation, negotiation, execution, financing and performance of this Agreement and all other matters related to the Merger, up to a maximum of $2.5 million. In circumstances where this Section 7.5(b) requires a reimbursement of costs and expenses, the Company shall reimburse Parent for such costs and expenses in cash by wire transfer to the account designated by Parent in Section 7.5 of the Parent Disclosure Letter on the later of (i) the day that is three Business Days after the date of termination of this Agreement and (ii) within nine (9) months immediately following the date day that is three Business Days after the delivery of documentation of such termination costs and expenses. In the event the payment of a Termination Fee by the Company is required pursuant to Section 7.5(a), and the Company has already reimbursed Parent for its costs and expenses pursuant to this Section 7.5(b), the amount of such costs and expenses so reimbursed will be offset against the Termination Fee payable.
(c) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article 7, all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section 7.5, the last sentence of Section 5.5, and Section 5.10 and except for the provisions of Section 8.2, Section 8.3, Section 8.4, Section 8.6, Section 8.8, Section 8.9, Section 8.10, Section 8.11, Section 8.12, Section 8.13 and Section 8.14, provided that nothing herein, including the payment of any Termination Fee and/or expenses, shall relieve any party who from any liability for fraud or any willful and material breach by such party of any of its representations, warranties, covenants or agreements set forth in this Agreement or any action for fraud and all rights and remedies of such aggrieved party under this Agreement in the case of such a willful and material breach or fraud, at law or in equity, shall be preserved. For purposes of this Section 7.5(c) and Section 8.3, “willful and material breach” shall mean a material breach that is a consequence of an act or a failure to take such act by the breaching party with the knowledge that the taking of such act (or the failure to take such act) would cause a material breach of this Agreement. Notwithstanding anything to the contrary set forth herein, the parties agree that in the event that the Company pays the Termination Fee to Parent, the Company shall have made such Acquisition Proposal no further liability to Parent, Holdings or Merger Sub of any affiliate thereof enter into a definitive agreement with kind in respect thereto. Notwithstanding of this Agreement and the foregoingtransactions contemplated by this Agreement, and that in no event shall the Company be obligated required to pay the Liquidated Amount or the Parent/MergerCo Expenses Termination Fee on more than onceone occasion. For purposes of this Section 9.2, "Parent/MergerCo Expenses" The Confidentiality Agreement shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to survive any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofAgreement, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, provisions of the Confidentiality Agreement shall apply to all information and material delivered by any party hereunder. The parties acknowledge that payment of the Liquidated Amount Termination Fee, if, as and when required pursuant to this Section 7.5, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim party receiving such amount in the circumstances in which it is payable for damages or any other claim 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 Merger, which Parent or MergerCo amount would otherwise be entitled impossible to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, calculate with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesprecision.
Appears in 2 contracts
Sources: Merger Agreement (Transocean Ltd.), Agreement and Plan of Merger (Transocean Partners LLC)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either Old National or First Midwest as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effect, without and none of Old National, First Midwest, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability on the part of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Section 6.2(b), directorsSection 6.14 and this Section 8.2 and Article IX (other than Section 9.1) shall survive any termination of this Agreement, officers or stockholders and all rights and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, neither Old National nor First Midwest shall relieve be relieved or released from any party from liability for any liabilities or damages arising out of its fraud or its willful and material breach of any provision of this Agreement.
(bi) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (In the "Liquidated Amount"), plus (B) event that after the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates date of this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, and prior to the Special Meetingtermination of this Agreement, (i) an a bona fide Acquisition Proposal shall have been communicated to or otherwise made known to the Board of Directors or senior management of First Midwest or shall have been made directly to the Company's stockholders of First Midwest generally or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the First Midwest Meeting) an Acquisition Proposal Proposal, in each case with respect to First Midwest and (A) (x) thereafter this Agreement is terminated by either Old National or solicited proxies First Midwest pursuant to Section 8.1(c) without the Requisite First Midwest Vote having been obtained (and all other conditions set forth in Sections 7.1 and 7.3 were satisfied or consents in opposition were capable of being satisfied prior to such termination) or (y) thereafter this Agreement is terminated by Old National pursuant to Section 8.1(d) as a result of a willful breach by First Midwest, and (B) prior to the Merger and date that is twelve (ii) within nine (912) months immediately following after the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter termination, First Midwest enters into a definitive agreement or consummates a transaction with respect thereto. Notwithstanding to an Acquisition Proposal (whether or not the foregoingsame Acquisition Proposal as that referred to above), in no event shall then First Midwest shall, on the Company be obligated earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay Old National, by wire transfer of same day funds, a fee equal to pay $97,000,000 (the Liquidated Amount or the Parent/MergerCo Expenses more than once. For “Termination Fee”); provided, that for purposes of this Section 9.28.2(b)(i), "Parent/MergerCo Expenses" all references in the definition of Acquisition Proposal to “twenty-five percent (25)%” shall be an amount equal instead refer to “fifty percent (50%)”.
(ii) In the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with event that this Agreement and is terminated by Old National pursuant to Section 8.1(f), then First Midwest shall pay Old National, by wire transfer of same day funds, the Transactions, including without limitation, fees and disbursements Termination Fee within two (2) business days of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf the date of Parent and MergerCo together with termination.
(i) In the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring event that after the Transactions, negotiating the terms and conditions date of this Agreement and any other agreements or other documents relating prior to the Transactionstermination of this Agreement, arranging financinga bona fide Acquisition Proposal shall have been communicated to or otherwise made known to the Board of Directors or senior management of Old National or shall have been made directly to the shareholders of Old National generally or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the Old National Meeting) an Acquisition Proposal, conducting due diligence in each case with respect to Old National, and other activities related to (A) (x) thereafter this Agreement is terminated by either Old National or First Midwest pursuant to Section 8.1(c) without the Requisite Old National Vote having been obtained (and all other conditions set forth in Sections 7.1 and 7.2 were satisfied or were capable of being satisfied prior to such termination) or (y) thereafter this Agreement is terminated by First Midwest pursuant to Section 8.1(d) as a result of a willful breach by Old National, and (B) prior to the date that is twelve (12) months after the date of such termination, Old National enters into a definitive agreement or consummates a transaction with respect to an Acquisition Proposal (whether or not the same Acquisition Proposal as that referred to above), then Old National shall, on the earlier of the date it enters into such definitive agreement and the Transactions (collectivelydate of consummation of such transaction, the "Parent/MergerCo Expenses"); providedpay First Midwest, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) same day funds, the Termination Fee, provided, that for purposes of this Section 8.2(c)(i), all references in the case definition of clause Acquisition Proposal to “twenty-five percent (W25)%” shall instead refer to “fifty percent (50%)”.
(ii) or In the event that this Agreement is terminated by First Midwest pursuant to Section 8.1(e), then Old National shall pay First Midwest, by wire transfer of same day funds, the Termination Fee within two (Y) thereof, within three (32) business days after of the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in herein, but without limiting the right of any party to recover liabilities or damages arising out of the other party’s fraud or its willful and material breach of any provision of this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek either party be required to obtain any recovery or judgment against pay the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesTermination Fee more than once.
Appears in 2 contracts
Sources: Merger Agreement (First Midwest Bancorp Inc), Merger Agreement (Old National Bancorp /In/)
Effect of Termination. (a) Subject In the event of termination of this Agreement by either Monsanto or PNU as provided in Section 7.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of PNU or Monsanto or their respective officers or directors except with respect to Sections 9.2(bSection 3.1(m), Section 3.2(m), Section 4.3, the second sentence of Section 5.3, Section 5.7, this Section 7.2 and Article VIII, which provisions shall survive such termination, and except that, notwithstanding anything to the contrary contained in this Agreement, neither PNU nor Monsanto shall be relieved or released from any liabilities or damages arising out of its willful material breach of this Agreement.
(i) PNU shall pay Monsanto the sum of $575 million (the "PNU Alternative Transaction Fee") if this Agreement is terminated solely as follows: (A) if PNU shall terminate this Agreement pursuant to Section 7.1(f), (B) if (I) either party shall terminate this Agreement pursuant to Section 7.1(d)(ii) due to the failure of PNU's stockholders to adopt this Agreement and approve the transactions contemplated hereby, (II) at any time after the date of this Agreement and at or before the date of the PNU Stockholders Meeting a Business Combination (as defined in Section 7.2(d)) proposal with respect to PNU shall have been publicly announced or otherwise communicated to the Board of Directors of PNU, and (dIII) hereofwithin twelve months of the termination of this Agreement, PNU enters into a definitive agreement with any third party with respect to a Business Combination or a Business Combination with respect to PNU is consummated, (C) if Monsanto shall terminate this Agreement pursuant to Section 7.1(e) or 7.1(h), (D) if (I) either party shall terminate this Agreement pursuant to Section 7.1(b), (II) at any time after the date of this Agreement and at or before the Termination Date there shall exist a Business Combination proposal with respect to PNU, (III) following the existence of such Business Combination proposal and prior to any such termination, PNU shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the Termination Date and (IV) within twelve months of any such termination of this Agreement, PNU shall enter into a definitive agreement with any third party with respect to a Business Combination or a Business Combination with respect to PNU is consummated, or (E) if (I) either party shall terminate this Agreement pursuant to 7.1(g)(A), (II) at any time after the date of this Agreement and at or before the Adverse Change in the PNU Recommendation a Business Combination proposal with respect to PNU shall have been publicly announced or otherwise communicated to the Board of Directors of PNU, and (III) within twelve months of any such termination of this Agreement, PNU shall enter into a definitive agreement with any third party with respect to a Business Combination or a Business Combination with respect to PNU is consummated, provided that, in the event case of this subclause (E) of Section 7.2(b)(i), if the PNU Termination Fee (as defined in Section 7.2(b)(ii)) has previously been paid in connection with the termination of this Agreement pursuant to Section 9.1 hereof7.1(g)(A), then the amount of such fee shall be credited to the PNU Alternative Transaction Fee.
(ii) PNU shall pay Monsanto the amount of $250 million (the "PNU Termination Fee") if this Agreement is terminated by either party pursuant to Section 7.1(g)(A) in circumstances in which the PNU Alternative Transaction Fee is not then payable unless at the time the Board of Directors of PNU effected an Adverse Change in the PNU Recommendation (or resolved to take such action) Monsanto shall forthwith become null and void and have no effectbe in material breach of its representations, without any liability on the part of any party hereto warranties or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements covenants contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(bi) The Company Monsanto shall pay to MergerCo an amount in cash equal to PNU the sum of $575 million (the "Monsanto Alternative Transaction Fee") if this Agreement is terminated solely as follows: (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates Monsanto shall terminate this Agreement pursuant to Section 9.1(c)(i7.1(f), (B) or if (YI) MergerCo terminates either party shall terminate this Agreement pursuant to Section 9.1(d)(ii7.1(d)(i) due to the failure of Monsanto's stockholders to approve the Share Issuance or the Charter Amendment, (ZII) either at any time after the Company date of this Agreement and at or MergerCo terminates before the date of the Monsanto Stockholders Meeting a Business Combination proposal with respect to Monsanto shall have been publicly announced or otherwise communicated to the Board of Directors of Monsanto and (III) within twelve months of the termination of this Agreement, Monsanto enters into a definitive agreement with any third party with respect to a Business Combination proposal or a Business Combination with respect to Monsanto is consummated, (C) if PNU shall terminate this Agreement pursuant to Section 9.1(b)(i7.1(e) or 7.1(i), if, prior (D) if (I) either party shall terminate this Agreement pursuant to the Special MeetingSection 7.1(b), (iII) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or at any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following time after the date of this Agreement and at or before the Termination Date there shall exist a Business Combination proposal with respect to Monsanto, (III) following the existence of such a Business Combination proposal and prior to any such termination, Monsanto shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect which breach shall have materially contributed to the failure of the Effective Time to occur on or before the Termination Date and (IV) within twelve months of any such termination the Company and the party who of this Agreement, Monsanto shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with any third party with respect thereto. Notwithstanding the foregoingto a Business Combination proposal or a Business Combination with respect to Monsanto is consummated, in no event or (E)(I) if either party shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with terminate this Agreement and pursuant to 7.1(g)(B), (II) at any time after the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions date of this Agreement and any other agreements at or other documents before the termination of this Agreement relating to the TransactionsAdverse Change in the Monsanto Recommendation a Business Combination proposal with respect to Monsanto, arranging financingshall have been publicly announced or otherwise communicated to the Board of Directors of Monsanto and (III) within twelve months of any such termination of this Agreement, conducting due diligence and other activities related Monsanto shall enter into a definitive agreement with any third party with respect to this Agreement and the Transactions (collectivelya Business Combination or a Business Combination with respect to Monsanto is consummated, the "Parent/MergerCo Expenses"); providedprovided that, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause this subclause (WE) or of Section 7.2(c)(i), if the Monsanto Termination Fee (Yas defined in section 7.2(c)(ii)) thereof, within three (3) business days after has previously been paid in connection with the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i7.1(g)(B), then the amount of such fee shall be credited to the Monsanto Alternative Transaction Fee.
(ii) or Monsanto shall pay PNU the amount of $250 million (the "Monsanto Termination Fee") if this Agreement is terminated by either party pursuant to Section 9.1(d)(ii7.1(g)(B) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where in which the Liquidated Amount and Monsanto Alternative Transaction Fee is not then payable unless at the Parent/MergerCo Expenses are payable time the Board of Directors of Monsanto effected an Adverse Change in accordance with the Monsanto Recommendation (or resolved to take such action) PNU shall be in material breach of its representations, warranties or covenants contained in this Agreement.
(d) For the purposes of this Section 9.2(b) hereof7.2, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages "Business Combination" means with respect to any claim for damages PNU or any other claim which Parent or MergerCo would otherwise be entitled to assert against Monsanto, as the Company or any of the Company Subsidiaries or any of their respective assetscase may be, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising party as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo which either (A) seek such party's stockholders prior to obtain any recovery or judgment against such transaction (by virtue of their ownership of such party's shares) in the Company or any aggregate cease to own at least 60% of the Company Subsidiaries voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof) or, regardless of the percentage of voting securities held by such stockholders, if any Person shall beneficially own, directly or indirectly, at least 30% of their respective assetsthe voting securities of such ultimate parent entity, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled the individuals comprising the board of directors of such party prior to seek such transaction do not constitute a majority of the board of directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer or obtain any other damages disposition of any kindat least 50% of the assets of such party and its Subsidiaries, includingtaken as whole, without limitationin a single transaction or a series of related transactions, consequentialor (iii) the acquisition, indirect directly or punitive damagesindirectly, by a Person of beneficial ownership of 30% or more of the common stock of such party whether by merger, consolidation, share exchange, business combination, tender or exchange offer or otherwise (other than a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction upon the consummation of which such party's stockholders would in the aggregate beneficially own greater than 60% of the voting securities of such Person).
Appears in 2 contracts
Sources: Merger Agreement (Monsanto Co), Merger Agreement (Pharmacia & Upjohn Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in the event of the termination of If this Agreement is validly terminated by either the Company or MM pursuant to Section 9.1 hereof7.1, this Agreement shall will forthwith become null and void and have there will be no effect, without any liability Liability or obligation on the part of either the Company or MM (or any party hereto of their respective Representatives or its affiliatesAffiliates), trusteesexcept (i) that the provisions of Sections 5.5(b), directors, officers or stockholders 5.14 and all rights 5.16 and obligations of this Section 7.2 will continue to apply following any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 such termination and Articles 9 and 10; provided, however, (ii) that nothing contained in this Section 9.2(a) herein shall relieve any party hereto from liability Liability for any fraud or willful breach of its representations, warranties, covenants or agreements contained in this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to If (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (Xx) the Company terminates shall have terminated this Agreement pursuant to Section 9.1(c)(i7.1(c) or (Yy) MergerCo terminates MM shall have terminated this Agreement pursuant to Section 9.1(d)(ii7.1(d) or (Z) Section 7.1(b)(iii), in either of such cases, the Company or MergerCo terminates shall pay to MM a termination fee of $2,500,000. If the Company shall have terminated this Agreement pursuant to Section 9.1(b)(i7.1(b)(iii), if, prior MM shall pay to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date Company a termination fee of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto$2,500,000. Notwithstanding the foregoing, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of Any fee payable under this Section 9.2, "Parent/MergerCo Expenses" 7.2(b) shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo paid by wire transfer of immediately available funds (i) contemporaneous with a termination described in the case of clause (Wx) or (Yy).
(c) thereofIf, within three (3) business days after following the date public announcement of terminationa Takeover Proposal by any Person, (ii) in either MM or the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating Company shall have terminated this Agreement pursuant to Section 9.1(c)(i7.1(b)(i) hereofor Section 7.1(b)(ii) and, within six (6) months after any termination described in this sentence, the Company or the Subsidiary shall have entered into a binding agreement providing for the consummation of (and which in fact is consummated pursuant to such binding agreement), or shall have consummated a Company Acquisition Agreement, then, in any of such case cases, the Company shall pay to an account designated by MergerCoMM a termination fee of $2,500,000. Any payment of the Parent/MergerCo Expenses required by fee payable under this Section 9.2(b7.2(c) hereof shall be payable by the Company to MergerCo paid by wire transfer of immediately available funds promptly following receipt by concurrent with or prior to the consummation of such transaction under the Company of reasonable documentation of all Parent/ MergerCo ExpensesAcquisition Agreement.
(d) Notwithstanding anything to Each party agrees that in the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any event that a termination of this Agreement fee is paid pursuant to Section 9.1(c)(i7.2(b) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof7.2(c), the payment of the Liquidated Amount and the Parent/MergerCo Expenses such termination fee shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty party to which such fee is paid, its subsidiaries and any of accurately determining actual its respective shareholders, Affiliates, officers, directors, employees or representatives (collectively, “Related Persons”), and in no event will the party to which such fee is paid or any of its Related Persons be entitled to recover any other money damages or any other remedy based on a claim in law or equity with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofto, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be any loss suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment failure of the amounts set forth in Section 9.2(b)Merger to be consummated, Parent and MergerCo hereby agree that, upon any (ii) the termination of this Agreement pursuant to Section 9.1(c)(iAgreement, (iii) any liabilities or Section 9.1(d)(ii) hereofobligations arising under this Agreement, or Section 9.1(b)(i(iv) any Legal Action arising out of or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount relating to any breach, termination or failure of or under this Agreement, and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek upon payment to obtain any recovery or judgment against the Company or MM, as applicable, such other party shall not have any of further liability or obligation to the Company Subsidiaries party that paid such termination fee or any of their respective assets, its Related Persons relating to or against any arising out of their respective directors, officers, employees, partners, managers, members this Agreement or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesthe transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Majesco), Agreement and Plan of Merger (Cover All Technologies Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement by either Parent or the Company pursuant to Section 9.1 8.1 hereof, this Agreement shall forthwith become null and void be terminated and have no further effect, without any the obligations of the parties hereunder shall terminate, and there shall be no liability on the part of any party hereto or its affiliateswith respect thereto, trusteesexcept that (i) the provisions of Section 4.20, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.45.10, the third last sentence of Section 7.16 and Articles 9 and 10; provided6.3(a), howeverSection 6.18, that nothing contained in this Section 9.2(a8.2, Section 8.3 and ARTICLE IX shall survive the termination of this Agreement and (ii) nothing herein shall relieve any party from liability or damages for fraud or for any fraud or willful breach of this Agreementor hereof or for any willful misrepresentation.
(b) The Company Except as provided in this Section 8.2, all fees and expenses incurred in connection with the Offer, the Merger, this Agreement and the transactions contemplated by this Agreement shall pay to MergerCo an amount in cash equal to be paid by the party incurring such fees or expenses, whether or not the Offer or the Merger is consummated.
(i) In the event that: (w) (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special MeetingOffer Closing, (i) an Acquisition a Superior Proposal shall have been made to the Company and such Superior Proposal becomes publicly known prior to the Offer Closing or shall have been made directly to the Company's stockholders of the Company generally prior to the Offer Closing and, in either case, such Superior Proposal shall not have been publicly withdrawn at least two business days prior to the Offer Closing or any person Person shall have publicly announced an Acquisition Proposal intention (whether or solicited proxies or consents in opposition not conditional) to the Merger make a Superior Proposal, (B) this Agreement is terminated by Parent pursuant to Section 8.1(e) and (iiC) within nine (9) 12 months immediately following the date of after such termination termination, the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement to consummate a Superior Proposal or consummates a Superior Proposal; (x) (A) prior to the Offer Closing, a Superior Proposal shall have been made to the Company or shall have been made directly to the stockholders of the Company generally or shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Superior Proposal, (B) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i) and (C) within 12 months after such termination, the Company consummates a Superior Proposal; (y) this Agreement is terminated by Parent pursuant to Section 8.1(d); or (z) this Agreement is terminated by Company pursuant to Section 8.1(g), then the Company shall pay Parent a fee equal to $2,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds in accordance with the following sentence; provided that the Company Termination Fee shall be an amount equal to $5,000,000 in the event the Company Termination Fee is payable pursuant to (1) Section 8.2(c)(i)(w) and the Company enters into an agreement to consummate a Superior Proposal or consummates a Superior Proposal, in each case with Endo or any of its Affiliates, (2) Section 8.2(c)(i)(x) and the Company consummates a Superior Proposal with Endo or any of its Affiliates, (3) Section 8.2(c)(i)(y) in connection with a Company Takeover Proposal from Endo or any of its Affiliates or (4) Section 8.2(c)(i)(z) and the Company enters into a binding agreement with Endo or any of its Affiliates with respect theretoto a Superior Proposal. The Company Termination Fee shall be payable as follows: in the case of termination pursuant to clause (w) above, the Company shall pay Parent 50% of the Company Termination Fee upon such termination and 50% of the Company Termination Fee on the date of execution of such definitive agreement or, if earlier, consummation of such transactions; in the case of a termination pursuant to clause (x) above, the Company shall pay Parent the Company Termination Fee on the date of consummation of such transaction; and in the case of a termination pursuant to clauses (y) or (z) above, the Company shall pay Parent the Company Termination Fee on the date of termination of this Agreement. Notwithstanding the foregoing, in no the event that this Agreement is terminated pursuant to Section 8.1(c) solely by reason of the condition set forth in clauses (iii), (iv), (v), (ix) and (x) of Exhibit A failing to be satisfied notwithstanding the Company’s due performance of and compliance with its covenants and obligations hereunder, including pursuant to Section 6.1 and Section 6.5, nothing herein shall (i) limit the right of the Company be obligated to enter into any transaction after the effective date of such termination or (ii) require the Company to pay a Company Termination Fee.
(ii) The Company acknowledges that the agreements contained in this Section 8.2(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of amount(s) due pursuant to this Section 9.28.2(c), "Parent/MergerCo Expenses" and, to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount(s) due pursuant to this Section 8.2(c), the Company shall be an amount equal pay to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent (including attorneys’ fees and MergerCo expenses) in connection with analyzing and structuring such suit, together with interest on such amount(s) at the Transactionsprime rate of Citibank, negotiating N.A. in effect on the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses date such payment was required to be reimbursed by the Company shall not exceed $1,000,000made.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Nupathe Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the any termination of this Agreement pursuant to as provided in Section 9.1 hereof9.1, this Agreement shall forthwith become null and void and have no effect, without and none of Sovereign, ICBC, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability on the part of any party hereto nature whatsoever hereunder, or its affiliatesin connection with the transactions contemplated hereby, trusteesexcept that (i) Section 7.2(b), directorsthis Section 9.2, officers or stockholders and all rights Article X shall survive any termination of this Agreement and obligations of any party hereto shall cease except for (ii) notwithstanding anything to the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contrary contained in this Section 9.2(a) Agreement, none of Sovereign, Merger Sub or ICBC shall relieve be relieved or released from any party from liability for any fraud liabilities or damages arising out of its willful breach of any provision of this AgreementAgreement or, in the case of Sovereign, any breach of Section 5.9 hereof.
(b) The Company ICBC shall pay to MergerCo an amount in cash equal to (A) Sovereign, by wire transfer of immediately available funds, the sum of $5,000,000 100,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined“Termination Fee”) if (W) MergerCo terminates this Agreement under Section 9.1(d)(iis terminated as follows:
(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company terminates if this Agreement is terminated by ICBC pursuant to Section 9.1(c)(i9.1(g), ICBC shall pay the entire Termination Fee at or prior to the time of such termination;
(ii) or (Y) MergerCo terminates if this Agreement is terminated by Sovereign pursuant to Section 9.1(d)(ii9.1(f)(ii), 9.1(f)(iii), 9.1(f)(iv) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i9.1(h), if, prior to the Special Meeting, ICBC shall pay (ix) an Acquisition Proposal shall have been made directly amount equal to 1/3 of the Company's stockholders generally Termination Fee on or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to before the Merger and (ii) within nine (9) months immediately following second Business Day after the date of such termination the Company and the party who shall have made (y) if within 15 months following such Acquisition Proposal termination ICBC or any affiliate thereof enter of its Subsidiaries enters into a definitive agreement with respect thereto. Notwithstanding the foregoingto, in no event or consummates, a Business Combination (as hereinafter defined), ICBC shall the Company be obligated to pay the Liquidated Amount remainder of the Termination Fee on or before the Parent/MergerCo Expenses more than once. For purposes second Business Day after the date of such execution or consummation; and
(iii) if this Agreement is terminated by either Sovereign or ICBC pursuant to Section 9.29.1(e) or 9.1(f)(i), "Parent/MergerCo Expenses" and a proposal with respect to a Business Combination shall be an amount equal have been publicly announced or otherwise communicated or made known to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and stockholders of ICBC at any time after the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions date of this Agreement and any other agreements on or other documents relating prior to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment date of the Liquidated Amount required by Section 9.2(b) hereof ICBC Stockholders Meeting, then if within 15 months after such termination ICBC or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, a Business Combination, ICBC shall be payable by pay the Company to MergerCo by wire transfer of immediately available funds (i) in Termination Fee on or before the case of clause (W) or (Y) thereof, within three (3) business days second Business Day after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesexecution or consummation.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damages.
Appears in 2 contracts
Sources: Merger Agreement (Independence Community Bank Corp), Merger Agreement (Sovereign Bancorp Inc)
Effect of Termination. (a) Subject In the event of termination of this Agreement by either the Company or Parent pursuant to Sections 9.2(b) Section 8.1, this Agreement will forthwith become void and have no further force or effect, without any liability or further obligation on the part of Parent, Merger Sub, the Company or any of their respective Subsidiaries, except as provided in Section 6.1(c), Section 6.8, Section 8.2, this Section 8.3, Article IX and Article X, which will survive any termination hereof, and provided that, notwithstanding anything to the contrary herein but subject to Section 8.3(j), none of Parent, Guarantor or Merger Sub or the Company shall be relieved or released from any liabilities or damages (d) hereofwhich the parties agree, subject to Section 9.6, shall not be limited to reimbursement of expenses or out-of-pocket costs, and, in the event case of liabilities or damages payable by Parent, Guarantor and Merger Sub, shall be based upon the loss of the benefit of the bargain by the Company and its shareholders (including any lost premium)) arising from such party’s Fraud or Willful Breach.
(b) In the event that:
(i) this Agreement is terminated (x) by the Company pursuant to Section 8.1(d)(ii) or (y) by Parent pursuant to Section 8.1(e)(ii), then the Company shall pay the Company Termination Fee to Parent (or its designee), concurrently with or prior to the time of termination and as a condition to such termination in the case of termination by the Company, or as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination) in the case of a termination by Parent, in each case, payable by wire transfer of immediately available funds to an account designated by Parent; or
(ii) (A) this Agreement is terminated by (x) either Parent or the Company pursuant to Section 8.1(b) or Section 8.1(f) (provided that at the time of termination the Company shall not have been entitled to terminate this Agreement pursuant to Section 9.1 hereof, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach of this Agreement.
(b) The Company shall pay to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i8.1(d)(i) or Section 7.1(a)(iii8.1(d)(iii)), or (Xy) the Company terminates this Agreement by Parent pursuant to Section 9.1(c)(i8.1(e)(i); (B) a Company Takeover Proposal shall have been publicly made, proposed or communicated (Yor shall have otherwise become publicly known) MergerCo terminates after the date of this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i)or, ifif earlier, prior to the Special Meeting, termination of this Agreement); and (iC) an Acquisition Proposal shall have been made directly at any time on or prior to the Company's stockholders generally twelve (12)-month anniversary of such termination, the Company or any person shall have publicly announced an Acquisition Proposal of its Subsidiaries completes or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter enters into a definitive agreement with respect thereto. Notwithstanding to, and thereafter completes, a Company Takeover Proposal, then, in any such event, the foregoingCompany shall pay to Parent (or its designee) the Company Termination Fee, such payment to be made promptly, and in any event within two (2) Business Days from the completion of the Company Takeover Proposal in clause (C) payable by wire transfer of immediately available funds to an account designated by Parent; provided that, for purposes of this Section 8.3(b)(ii), all references in the definition of Company Takeover Proposal to twenty percent (20%) shall be deemed references to eighty percent (80%) and references to eighty percent (80%) shall be deemed references to twenty percent (20%).
(c) The parties hereto acknowledge and hereby agree that in no event shall the Company be obligated required to pay the Liquidated Amount Company Termination Fee on more than one occasion.
(d) In the event that (i) this Agreement is validly terminated by Parent or the Parent/MergerCo Expenses more Company pursuant to (A) Section 8.1(b) or (B) Section 8.1(c) due to a Legal Restraint arising in connection with the HSR Act and, in each case of the foregoing (A) and (B), at the time of such termination, any of the conditions set forth in Section 7.1(a) (solely as it relates to the HSR Act) or Section 7.1(c) has not been satisfied or waived, (ii) at the time of termination, Parent shall not have been entitled to terminate this Agreement pursuant to Section 8.1(e), and (iii) all other conditions to the Closing set forth in Section 7.1 and Section 7.2 have been satisfied (other than once. For purposes those conditions that by their terms are to be satisfied at the Closing, which conditions are reasonably capable at the time of termination of being satisfied if the Closing were to occur at such time) or waived, then Parent shall deliver a notice to the Company that the Antitrust Termination Fee is due and payable by Parent to the Company in accordance with the provisions of this Section 9.2, "Parent/MergerCo Expenses" shall be an amount equal to 8.3(d) (the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements “Antitrust Termination Fee Notice”). Within five (5) Business Days of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed receipt by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required Antitrust Termination Fee Notice, the Company shall deliver to Parent a written notice informing Parent whether or not the Company elects to accept the Antitrust Termination Fee (the “Company Antitrust Fee Notice”). If the Company does not deliver to Parent the Company Antitrust Fee Notice by Section 9.2(bthe date that is five (5) hereof Business Days after the Company receives the Antitrust Termination Fee Notice, the Company shall be payable by deemed to have accepted the Antitrust Termination Fee. If the Company accepts (or is deemed to MergerCo accept pursuant hereto) the Antitrust Termination Fee, then Parent shall pay to the Company the Antitrust Termination Fee as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such acceptance (or deemed acceptance pursuant hereto)), in each case, payable by wire transfer of immediately available funds to an account specified by the Company. The parties hereto acknowledge and agree that in no event shall Parent be required to pay the Antitrust Termination Fee on more than one occasion and in no event shall Parent be required to pay the Antitrust Termination Fee if the Financing Termination Fee has been paid.
(ie) in In the case event of clause (W) or (Y) thereof, within three (3) business days after termination by the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement Company pursuant to Section 9.1(c)(i8.1(d)(iii), Parent shall deliver a notice to the Company that the Financing Termination Fee is due and payable by Parent to the Company in accordance with the provisions of this Section 8.3(e) hereof(the “Financing Termination Fee Notice”). Within five (5) Business Days of receipt by the Company of the Financing Termination Fee Notice, the Company shall deliver to Parent a written notice informing Parent whether or not the Company elects to accept the Financing Termination Fee (the “Company Financing Fee Notice”). If the Company does not deliver to Parent the Company Financing Fee Notice by the date that is five (5) Business Days after the Company receives the Financing Termination Fee Notice, the Company shall be deemed to have accepted the Financing Termination Fee. If the Company accepts (or is deemed to accept pursuant hereto) the Financing Termination Fee, then Parent shall pay to the Company the Financing Termination Fee as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be acceptance (or deemed acceptance pursuant hereto)), in each case, payable by the Company to MergerCo by wire transfer of immediately available funds to an account specified by the Company. The parties hereto acknowledge and agree that in no event shall Parent be required to pay the Financing Termination Fee on more than one occasion and in no event shall Parent be required to pay the Financing Termination Fee if the Antitrust Termination Fee has been paid.
(f) Each of the parties hereto acknowledges that neither the Company Termination Fee nor, in the event that the Company accepts (or is deemed to have accepted pursuant to Section 8.3(d) or Section 8.3(e), respectively) the Antitrust Termination Fee or the Financing Termination Fee, as applicable, is intended to be a penalty but rather is liquidated damages in a reasonable amount that will compensate Parent or the Company, as applicable, in the circumstances in which the Company Termination Fee, the Antitrust Termination Fee or the Financing Termination Fee, as applicable, is paid 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, which amount would otherwise be impossible to calculate with precision.
(g) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 8.3 are an integral part of the Transactions and that, without these agreements, the parties hereto would not enter into this Agreement. Accordingly, if a party hereto fails to promptly following receipt pay any amount due pursuant to this Section 8.3, and the other party commences a suit that results in a final and non-appealable judgment against the failing party for the amounts set forth in this Section 8.3 or a portion thereof, the failing party shall pay to the other party all fees, costs and expenses of enforcement (including reasonable and documented attorney’s fees as well as expenses incurred in connection with any such action), together with interest on such amount or such portion thereof at the prime lending rate as published in the Wall Street Journal, in effect on the date such payment is required to be made (together, the “Termination Expenses and Interest”).
(h) Except as set forth in Section 8.3(g) and Section 8.2, and except for all expenses incurred by any party in connection with the printing, filing and mailing of the Proxy Statement (including applicable SEC filing fees) (which shall be borne by the Company), upon the payment by the Company of reasonable documentation the Company Termination Fee as and when required by Section 8.3(b), other than, subject to Section 8.3(j), in the case of Fraud or Willful Breach, none of the Company, its Subsidiaries or any of their respective Non-Party Affiliates (collectively, the “Company Related Parties”) shall have any further liability with respect to this Agreement or the Transactions to Parent, Merger Sub, Guarantor or their respective Subsidiaries or Non-Party Affiliates (collectively, the “Parent Related Parties”). Payment of the Company Termination Fee pursuant to Section 8.3(b) shall be deemed to be liquidated damages for any and all Parent/ MergerCo Expenseslosses or damages suffered or incurred by any of the Parent Related Parties or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination. Except as set forth in Section 8.3(g), other than, subject to Section 8.3(j), in the case of Fraud or Willful Breach, in circumstances where the Company Termination Fee is payable pursuant to Section 8.3(b) and is paid by the Company in accordance with Section 8.3(b), Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(b) and, if applicable, the Termination Expenses and Interest, shall be the sole and exclusive monetary remedy of the Parent Related Parties against the Company Related Parties for any loss or damage suffered as a result of the failure of the Transactions be consummated or for a breach of, or failure to perform under, this Agreement or any certificate delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith, and upon payment of the Company Termination Fee, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, whether in equity or at law, in contract in tort or otherwise. For the avoidance of doubt, nothing in this Section 8.3(h) shall limit any remedies of Parent prior to such termination, including specific enforcement pursuant to Section 9.6.
(di) Except as set forth in Section 6.6(f), Section 8.3(g) and Section 8.2, upon the payment by Parent of the Antitrust Termination Fee or the Financing Termination Fee as and when required pursuant to and in accordance with Section 8.3(d) or Section 8.3(e), as applicable, other than, subject to Section 8.3(j), in the case of Fraud or Willful Breach, none of the Parent Related Parties shall have any further liability with respect to this Agreement or the Transactions to any of the Company Related Parties. Payment of the Antitrust Termination Fee or the Financing Termination Fee pursuant to and in accordance with Section 8.3(d) or Section 8.3(e), as applicable, shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by any of the Company Related Parties or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination. Except as set forth in Section 8.3(g), other than, subject to Section 8.3(j), in the case of Fraud or Willful Breach, in circumstances where the Antitrust Termination Fee or the Financing Termination Fee, as applicable, is payable pursuant to Section 8.3(d) or Section 8.3(e) and is paid by Parent pursuant to and in accordance with Section 8.3(d) or Section 8.3(e), as applicable, the Company’s right to receive payment from Parent of the Antitrust Termination Fee or the Financing Termination Fee pursuant to and in accordance with Section 8.3(d) or Section 8.3(e), as applicable, and, if applicable, the Termination Expenses and Interest, shall be the sole and exclusive monetary remedy of the Company Related Parties against the Parent Related Parties for any loss or damage suffered as a result of the failure of the Transactions be consummated or for a breach of, or failure to perform under, this Agreement or any certificate delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith, and upon payment of the Antitrust Termination Fee or the Financing Termination Fee, as applicable, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, whether in equity or at law, in contract in tort or otherwise. For the avoidance of doubt, nothing in this Section 8.3(i) shall limit any remedies of the Company prior to such termination, including specific enforcement pursuant to Section 9.6.
(j) Notwithstanding anything to the contrary in this Agreement, (A) if Parent accepts payment of the Company Termination Fee as and MergerCo hereto expressly acknowledge and agree thatwhen required to be paid by the Company pursuant to Section 8.3(b), with respect none of the Company Related Parties shall have any further liability or obligation relating to any termination or arising out of this Agreement pursuant to Section 9.1(c)(ior the Transactions, whether in equity or at law, in contract in tort or otherwise, including any monetary damages payable for breaches (including Willful Breaches) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to under this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholdersotherwise, and (B) be entitled if the Company accepts (or is deemed to seek accept) payment of the Antitrust Termination Fee or obtain the Financing Termination Fee, as applicable, in accordance with (and such fee is paid to the Company pursuant to) Section 8.3(d) or Section 8.3(e), as applicable, none of Parent or any other of the Parent Related Parties, including the Guarantor pursuant to the Guaranty, shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, whether in equity or at law, in contract in tort or otherwise, including any monetary damages of any kind, including, without limitation, consequential, indirect payable for breaches (including Willful Breaches) under this Agreement or punitive damagesotherwise.
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to by either International or Compass as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null and void and have no effect, without any liability or obligation on the part of the parties hereto, other than the provisions of Section 4.2(i), Section 4.3(g), Section 5.1(p), Section 6.1, this Section 8.2 and Sections 9.2 through 9.8 and except to the extent that such termination results from the willful and material breach by a party of any party hereto of its representations, warranties, covenants or agreements set forth in this Agreement, the Ancillary Agreements, or any agreement contemplated hereby or thereby.
(b) If the transactions contemplated by this Agreement are terminated as provided herein: (i) Compass shall return all documents and other material received from International or its affiliatesrepresentatives relating to the transactions contemplated hereby, trusteeswhether so obtained before or after the execution hereof, directorsto International; and (ii) all confidential information received by Compass with respect to the businesses of International shall be treated in accordance with the Confidentiality Agreement, officers or stockholders which shall remain in full force and all rights and obligations of any party hereto shall cease except for effect notwithstanding the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that nothing contained in this Section 9.2(a) shall relieve any party from liability for any fraud or willful breach termination of this Agreement.
(bc) The Company shall pay to MergerCo an amount in cash equal to In the event that: (Ai) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under Section 9.1(d)(i) as a result of the Company having wilfully breached its obligations under Section 7.1(a)(i) or Section 7.1(a)(iii), or (X) the Company Compass terminates this Agreement pursuant to Section 9.1(c)(i) 8.1(c), or (Yii) MergerCo International terminates this Agreement pursuant to Section 9.1(d)(ii8.1(d) or (Z) either and, at the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal time of termination there shall have been made directly a proposal relating to the Company's stockholders generally a Third Party Acquisition that has become public and, within 12 months following such termination, International or any person Daka shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding to (X) the foregoingsale of the Foodservice Business, in no event (Y) the sale of substantially all of the assets of International or Daka, or (Z) the merger of International or Daka with or into any other entity, or International or Daka shall the Company be obligated recommend any other Third Party Acquisition to its stockholders, then International or Daka shall promptly pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of to Compass (by wire transfer to an account designated by Compass for this Section 9.2, "Parent/MergerCo Expenses" shall be purpose) an amount equal to the reasonable out-of-pocket costs A-29 120 sum of (i) $5,800,000 and (ii) notwithstanding the provisions of Section 6.4, the fees and expenses actually incurred by Parent and MergerCo Compass in connection with the negotiation and preparation of this Agreement and the TransactionsAncillary Agreements to which Compass is a party, including the performance of Compass' covenants herein and therein, and the transactions contemplated hereby and thereby, including, without limitation, all fees and disbursements of its outside Compass' financial advisors, legal counsel, investment bankers, accountants and other consultants retained by or on behalf advisors, up to a maximum of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactionsan additional $2,000,000, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses in no event shall International or Daka collectively be required to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses.
(d) Notwithstanding anything to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment pay either of the amounts set forth in this Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant to Section 9.1(c)(i8.2(c) (i) or Section 9.1(d)(ii(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagesmore than once.
Appears in 2 contracts
Sources: Merger Agreement (Unique Casual Restaurants Inc), Merger Agreement (Daka International Inc)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 7.1 hereof, this Agreement shall forthwith become null and void be terminated and have no effect, without any liability on further effect except that the part of any party hereto or its affiliates, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third last sentence of Section 7.16 1.2(b), Section 5.2(b), this Section 7.2 and Articles 9 and 10Article VIII shall survive termination of this Agreement; provided, however, provided that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or willful intentional and material breach of this Agreementhereof.
(b) The Company shall pay If Parent or Buyer exercises its right to MergerCo an amount in cash equal to (A) $5,000,000 (the "Liquidated Amount"), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates terminate this Agreement under Section 9.1(d)(i) as a result of 7.1(d), then the Company having wilfully breached its obligations under Section 7.1(a)(ishall within three business days of such termination pay to Parent $12,500,000 in immediately available funds (the “Termination Fee”).
(c) or Section 7.1(a)(iii), or In the event that (X) the Company terminates this Agreement pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (ii)(x) an Acquisition Proposal shall have has been made directly to the Company's stockholders generally proposed by any person (other than Parent and Buyer or any of their respective affiliates) or any person shall have publicly has announced its intention (whether or not conditional) to make an Acquisition Proposal or solicited proxies an Acquisition Proposal or consents in opposition such intention has otherwise become known to the Merger Company’s directors or officers, or its stockholders generally and (y) thereafter this Agreement is terminated by either the Company, Parent or Buyer pursuant to Section 7.1(c), 7.1(e) or 7.1(f), and (ii) within nine (9) 12 months immediately following the date of after such termination of this Agreement, the Company and the party who shall have made such or any of its Subsidiaries enters into any definitive agreement providing for an Acquisition Proposal, or an Acquisition Proposal or any affiliate thereof enter into a definitive agreement with respect thereto. Notwithstanding the foregoingis consummated, in no event shall then the Company be obligated shall pay Parent the Termination Fee upon the first to pay occur of the Liquidated Amount or the Parent/MergerCo Expenses more than onceevents described in clause (ii) of this sentence. For purposes of this Section 9.27.2(c), "Parent/MergerCo Expenses" shall references to 20% in the definition of “Acquisition Proposal” as such term relates to an Alternative Transaction will be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses deemed to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company references to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expenses50%.
(d) If (i) Parent, Buyer or the Company exercises its right to terminate this Agreement under Section 7.1(c) and (ii) the Minimum Tender Condition is not satisfied at the time of such termination, then the Company shall within three business days of such termination, pay to Parent the Termination Fee.
(e) Notwithstanding anything to the contrary set forth in this Agreement, if the Company fails promptly to pay to Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of amounts due under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof7.2, the payment of Company shall pay the Liquidated Amount costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason filing of any such proposed lawsuit or actual termination of this Agreement pursuant other legal action, taken to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofcollect payment, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where together with interest on the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction amount of any and all damages arising as a result unpaid fee or obligation at the publicly announced prime rate of Citibank, N.A. in effect from time to time from the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant date such fee or obligation was required to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagespaid.
Appears in 2 contracts
Sources: Merger Agreement (iPCS, INC), Merger Agreement (Sprint Nextel Corp)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to as provided in Section 9.1 hereof8.1, this Agreement shall forthwith become null void, and void and have there shall be no effect, without any liability or obligation on the part of any of the parties, except (i) the provisions of this Section 8.2, Section 6.5, Section 6.6, and Article IX shall survive any such termination of this Agreement and no such termination shall relieve either party hereto from any liability or its affiliates, trustees, directors, officers or stockholders obligation under such provisions and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, that (ii) nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any Willful Breach hereof or actual fraud or willful breach (as defined under the laws of this Agreementthe State of Delaware).
(b) The Company shall pay If this Agreement is terminated:
(i) by Rubicon Project pursuant to MergerCo an amount in cash equal Section 8.1(e) or by either Rubicon Project or Telaria pursuant to Section 8.1(b)(ii) at a time when Rubicon Project would have been entitled to terminate this Agreement pursuant to Section 8.1(e); or
(ii) (A) $5,000,000 by Rubicon Project or Telaria (if, but only if, Rubicon Project had the "Liquidated Amount"right to terminate this Agreement pursuant to Section 8.1(b)(i) at such time) pursuant to Section 8.1(b)(i) (if the Telaria Stockholders Meeting has not been held by the Outside Date) or by Rubicon Project or Telaria pursuant to Section 8.1(b)(ii), plus (B) the Parent/MergerCo Expenses (as hereinafter defined) if (W) MergerCo terminates this Agreement under or by Rubicon Project pursuant to Section 9.1(d)(i8.1(c) as a result of the Company having wilfully breached its obligations under a breach of Telaria’s covenants set forth in Section 7.1(a)(i) 5.1, Section 5.2, Section 6.1, Section 6.3, Section 6.9 or Section 7.1(a)(iii6.13, (B) at or prior to the time this Agreement is terminated, in the case of a termination pursuant to Section 8.1(b)(i), at or prior to the Telaria Stockholders Meeting, in the case of a termination pursuant to Section 8.1(b)(ii), or (X) at or prior to the Company terminates this Agreement time of such breach by Telaria, in the case of a termination pursuant to Section 9.1(c)(i) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i8.1(c), if, prior to the Special Meeting, (i) an Acquisition Proposal there shall have been publicly made directly to the Company's stockholders of Telaria generally or shall otherwise have become publicly known or any person Person shall have publicly announced an Acquisition Proposal intention (whether or solicited proxies not conditional) to make, or consents in opposition the case of a termination pursuant to Section 8.1(c), there shall otherwise have been made known to the Merger Board of Directors of Telaria, an offer or proposal for a Telaria Alternative Transaction, which shall not have been withdrawn (and not re-proposed thereafter without a subsequent withdrawal) at or prior to the time this Agreement is terminated, in the case of a termination pursuant to Section 8.1(b)(i), at or prior to the Telaria Stockholders Meeting, in the case of a termination pursuant to Section 8.1(b)(ii), or at or prior to the time of such breach, in the case of a termination pursuant to Section 8.1(c), and (iiC) within nine twelve (912) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal of this Agreement, Telaria or any affiliate thereof enter its Subsidiaries enters into a definitive agreement with any Telaria Third Party with respect thereto. Notwithstanding the foregoingto any Telaria Alternative Transaction or any Telaria Alternative Transaction is consummated; then Telaria shall pay to Rubicon Project, in no event shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2not later than, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount of all Parent/MergerCo Expenses to be reimbursed by the Company shall not exceed $1,000,000.
(c) Any payment of the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereofi), within three (3) business days after the date of terminationtermination of this Agreement, (ii) and in the case of clause (Zii), two (2) thereof, within three (3) business days Business Days after the earlier of the date the agreement with respect to the Telaria Alternative Transaction is entered into and the date the Telaria Alternative Transaction is consummated, a termination fee of entering into $13,700,000 (the “Telaria Termination Fee”); provided, that for purposes of this Section 8.2(b), the term Telaria Alternative Transaction shall have the meaning assigned to the term in Section 5.2(a), except that all references to “20%” shall be deemed replaced with “50%”.
(c) If this Agreement is terminated:
(i) by Telaria pursuant to Section 8.1(f) or by either Telaria or Rubicon Project pursuant to Section 8.1(b)(iii) at a time when Telaria would have been entitled to terminate this Agreement pursuant to Section 8.1(f); or
(ii) (A) by Telaria or Rubicon Project (if, but only if, Telaria had the right to terminate this Agreement pursuant to Section 8.1(b)(i) at such definitive agreementtime) pursuant to Section 8.1(b)(i) (if the Rubicon Project Stockholders Meeting has not been held by the Outside Date) or by Telaria or Rubicon Project pursuant to Section 8.1(b)(iii), or by Telaria pursuant to Section 8.1(d) as a result of a breach of Rubicon Project’s covenants set forth in Section 5.1, Section 5.3, Section 6.1, Section 6.3, Section 6.9, Section 6.13 or Section 6.15, (B) at or prior to the time this Agreement is terminated, in the case of a termination pursuant to Section 8.1(b)(i), at or prior to the Rubicon Project Stockholders Meeting, in the case of a termination pursuant to Section 8.1(b)(iii), or at or prior to the time of such breach by Rubicon Project, in the case of a termination pursuant to Section 8.1(d), there shall have been publicly made to the stockholders of Rubicon Project generally or shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make, or in the case of a termination pursuant to Section 8.1(d), there shall otherwise have been made known to the Board of Directors of Rubicon Project, an offer or proposal for a Rubicon Project Alternative Transaction, which shall not have been withdrawn (and not re-proposed thereafter without a subsequent withdrawal) at or prior to the time this Agreement is terminated, in the case of a termination pursuant to Section 8.1(b)(i), at or prior to the Rubicon Project Stockholders Meeting, in the case of a termination pursuant to Section 8.1(b)(iii), or the time of such breach, in the case of a termination pursuant to Section 8.1(d) and (iiiC) within twelve (12) months of termination of this Agreement, Rubicon Project or its Subsidiaries enters into a definitive agreement with any Rubicon Project Third Party with respect to any Rubicon Project Alternative Transaction or any Rubicon Project Alternative Transaction is consummated; then Rubicon Project shall pay to Telaria, not later than, in the case of clause (Xi), the date of termination of this Agreement, and in the case of clause (ii), two (2) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment Business Days after the earlier of the Parent/MergerCo Expenses required by date the agreement with respect to the Rubicon Project Alternative Transaction is entered into and the date the Rubicon Project Alternative Transaction is consummated, a termination fee of $16,000,000 (the “Rubicon Project Termination Fee”); provided that, for purposes of this Section 9.2(b) hereof 8.2(c), the term Rubicon Project Alternative Transaction shall have the meaning assigned to the term in Section 5.3(a), except that all references to “20%” shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo Expensesdeemed replaced with “50%”.
(d) Notwithstanding Any Telaria Termination Fee or Rubicon Project Termination Fee payable under Section 8.2(b) or Section 8.2(c) shall be payable in immediately available funds no later than the applicable date set forth therein. If a party fails to promptly pay to the other party any fee due under such Section 8.2(b) or Section 8.2(c), the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment.
(e) Each party agrees that notwithstanding anything in this Agreement to the contrary in this Agreement, Parent and MergerCo hereto expressly acknowledge and agree that, (other than with respect to (x) any termination of this claims under the Confidentiality Agreement pursuant to Section 9.1(c)(ior (y) or Section 9.1(d)(ii) hereofclaims for, or Section 9.1(b)(i) arising out of or Section 9.1(d)(i) hereof in connection with a Willful Breach hereunder or actual fraud (as defined under the laws of the State of Delaware)), in the event that any Telaria Termination Fee or Rubicon Project Termination Fee is paid to a party in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are in which such fee is payable in accordance with this Section 9.2(b8.2, (i) hereof, the payment of the Liquidated Amount and the Parent/MergerCo Expenses such Telaria Termination Fee or Rubicon Project Termination Fee shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent of such party, its Subsidiaries, stockholders, Affiliates, officers, directors, employees and MergerCo. The parties hereto expressly acknowledge and agree that, in light Representatives against the other party or any of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) its Representatives or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereofAffiliates for, and (ii) shall be in full no event will the party being paid any Telaria Termination Fee or Rubicon Project Termination Fee or any other such Person seek to recover any other money damages or seek any other remedy based on a claim in law or equity with respect to, in each case of clause (i) and complete satisfaction of (ii), (A) any and all damages arising loss suffered, directly or indirectly, as a result of the foregoing. Except for nonpayment failure of the amounts set forth in Section 9.2(b)Merger to be consummated, Parent and MergerCo hereby agree that, upon any (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement pursuant or (D) any claims or actions arising out of or relating to Section 9.1(c)(iany breach, termination or failure of or under this Agreement, and (iii) no party nor any affiliates or Section 9.1(d)(ii) hereof, Representatives of any party shall have any further liability or Section 9.1(b)(i) obligation to the other party relating to or Section 9.1(d)(i) hereof in circumstances where arising out of this Agreement or the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in transactions contemplated hereby. In no event shall Parent any party be required to pay a Telaria Termination Fee or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assetsRubicon Project Termination Fee, or against any of their respective directorsas applicable, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damageson more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Rubicon Project, Inc.), Merger Agreement (Telaria, Inc.)
Effect of Termination. (a) Subject to Sections 9.2(b) and (d) hereof, in In the event of the termination of this Agreement pursuant to Section 9.1 7.1 hereof, this Agreement shall forthwith become null and void be terminated and have no effectfurther effect except as specifically provided herein and, without any except as provided in this Section 7.2 and in Section 8.12, there shall be no liability on the part of any party hereto or its affiliateshereto, trustees, directors, officers or stockholders and all rights and obligations of any party hereto shall cease except for the agreements contained in Section 7.4, the third sentence of Section 7.16 and Articles 9 and 10; provided, however, provided that nothing contained in this Section 9.2(a) herein shall relieve any party from liability for any fraud or any willful breach of this Agreementhereof.
(b) The If (i) Parent or Purchaser exercises its right to terminate this Agreement under Section 7.1(d)(i), the Company shall pay to MergerCo an amount in cash equal to (A) Parent $5,000,000 11 million (the "Liquidated AmountTermination Fee"), plus payable in same-day funds, as liquidated damages and not as a penalty to reimburse Parent for its time, expense and lost opportunity costs of pursuing the Merger, upon consummation of the transaction relating to such Acquisition Proposal.
(Bc) In the Parent/MergerCo Expenses event that (as hereinafter definedi) if any person shall have publicly disclosed an Acquisition Proposal and (Wii) MergerCo terminates this Agreement under Section 9.1(d)(i) following such disclosure, at the Stockholders' Meeting, the Company Stockholder Approval is not obtained (other than as a result of the Company having wilfully breached its obligations under Section 7.1(a)(ia breach of this Agreement by Parent or Purchaser) or Section 7.1(a)(iii), or and (Xiii) the Company terminates not later than twelve months after any termination of this Agreement pursuant to Section 9.1(c)(i7.1(b)(iii) or (Y) MergerCo terminates this Agreement pursuant to Section 9.1(d)(ii) or (Z) either the Company or MergerCo terminates this Agreement pursuant to Section 9.1(b)(i), if, prior to the Special Meeting, (i) an Acquisition Proposal shall have been made directly to the Company's stockholders generally or any person shall have publicly announced an Acquisition Proposal or solicited proxies or consents in opposition to the Merger and (ii) within nine (9) months immediately following the date of such termination the Company and the party who shall have made such Acquisition Proposal or any affiliate thereof enter entered into a definitive agreement with respect thereto. Notwithstanding the foregoingfor an Alternative Transaction, in no event or shall the Company be obligated to pay the Liquidated Amount or the Parent/MergerCo Expenses more than once. For purposes of this Section 9.2have consummated an Alternative Transaction, "Parent/MergerCo Expenses" shall be an amount equal to the reasonable out-then immediately prior to, and as a condition of-pocket costs A-29 120 and expenses incurred by Parent and MergerCo in connection with this Agreement and the Transactions, including without limitation, fees and disbursements of its outside legal counsel, investment bankers, accountants and other consultants retained by or on behalf of Parent and MergerCo together with the other out-of-pocket costs and expenses incurred by Parent and MergerCo in connection with analyzing and structuring the Transactions, negotiating the terms and conditions of this Agreement and any other agreements or other documents relating to the Transactions, arranging financing, conducting due diligence and other activities related to this Agreement and the Transactions (collectively, the "Parent/MergerCo Expenses"); provided, however, that the aggregate amount consummation of all Parent/MergerCo Expenses to be reimbursed by such Alternative Transaction the Company shall pay, or cause to be paid, to Parent the Termination Fee, payable in same-day funds, as liquidated damages and not exceed $1,000,000.
(c) Any payment as a penalty, to reimburse Parent for its time, expense and lost opportunity costs of pursuing the Liquidated Amount required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds (i) in the case of clause (W) or (Y) thereof, within three (3) business days after the date of termination, (ii) in the case of clause (Z) thereof, within three (3) business days after the date of entering into such definitive agreement, and (iii) in the case of clause (X) thereof, prior to terminating this Agreement pursuant to Section 9.1(c)(i) hereof, in any such case to an account designated by MergerCo. Any payment of the Parent/MergerCo Expenses required by Section 9.2(b) hereof shall be payable by the Company to MergerCo by wire transfer of immediately available funds promptly following receipt by the Company of reasonable documentation of all Parent/ MergerCo ExpensesMerger.
(d) Notwithstanding anything to the contrary set forth in this Agreement, if the Company fails promptly to pay to Parent and MergerCo hereto expressly acknowledge and agree that, with respect to any termination of amounts due under this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof7.2, the payment of Company shall pay the Liquidated Amount costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the Parent/MergerCo Expenses shall constitute liquidated damages with respect to any claim for damages or any other claim which Parent or MergerCo would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, with respect to this Agreement and the Transactions and shall constitute the sole and exclusive remedy available to Parent and MergerCo. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, the rights to payment under Section 9.2(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason filing of any such proposed lawsuit or actual termination of this Agreement pursuant other legal action, taken to Section 9.1(c)(i) or Section 9.1(d)(ii) hereofcollect payment, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where together with interest on the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, and (ii) shall be in full and complete satisfaction amount of any and all damages arising as a result unpaid fee or obligation at the publicly announced prime rate of Citibank, N.A. in effect from time to time from the foregoing. Except for nonpayment of the amounts set forth in Section 9.2(b), Parent and MergerCo hereby agree that, upon any termination of this Agreement pursuant date such fee or obligation was required to Section 9.1(c)(i) or Section 9.1(d)(ii) hereof, or Section 9.1(b)(i) or Section 9.1(d)(i) hereof in circumstances where the Liquidated Amount and the Parent/MergerCo Expenses are payable in accordance with Section 9.2(b) hereof, in no event shall Parent or MergerCo (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or shareholders, and (B) be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, indirect or punitive damagespaid.
Appears in 2 contracts
Sources: Merger Agreement (Sprint Corp), Merger Agreement (American Telecasting Inc/De/)