Termination Amounts. (1) SSR shall be entitled to the Alacer Termination Amount upon the occurrence of any of the following events (each a “Alacer Termination Amount Event”) which shall be paid by Alacer to SSR, in consideration for the disposition of SSR’s rights under this Agreement, within the time specified below in respect of each such Alacer Termination Amount Event: (a) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(i) [Alacer Change in Recommendation] (but not including a termination by SSR pursuant to Section 8.2(1)(c)(i) in circumstances where the Alacer Change in Recommendation which led to such termination resulted solely because the Alacer Board, acting in good faith, determined that a Material Adverse Effect in respect of SSR occurred and that, as a consequence, it would be inconsistent with the Alacer Board’s fiduciary obligations to continue to recommend that the Alacer Shareholders vote in favour of the Arrangement Resolution) or Section 8.2(1)(c)(iv) [Alacer Wilful Breach], in which case the Alacer Termination Amount shall be paid on the second business day following such termination; or (b) this Agreement is terminated by Alacer pursuant to Section 8.2(1)(d)(ii) [Alacer Superior Proposal], in which case the Alacer Termination Amount shall be paid prior to or concurrent with such termination; or (c) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(iii) [Alacer Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i) [Outside Date] or Section 8.2(1)(b)(iii) [No Alacer Shareholder Approval], but only if, (i) prior to such termination, an Acquisition Proposal in respect of Alacer is publicly announced or otherwise publicly disclosed by any person or persons (other than SSR and its subsidiaries) or any person or persons (other than SSR or any of its subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of Alacer; and (ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to Alacer is consummated or (2) Alacer or one or more of its subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Alacer Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(1)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”. (2) Alacer shall be entitled to the SSR Termination Amount upon the occurrence of any of the following events (each an “SSR Termination Amount Event”) which shall be paid by SSR to Alacer, in consideration for the disposition of ▇▇▇▇▇▇’s rights under this Agreement, within the time specified below in respect of each such SSR Termination Amount Event: (a) this Agreement is terminated by Alacer pursuant to Section 8.2(1)(d)(i) [SSR Change in Recommendation] (but not including a termination by Alacer pursuant to Section 8.2(1)(d)(i) in circumstances where the SSR Change in Recommendation which led to such termination resulted solely because the SSR Board, acting in good faith, determined that a Material Adverse Effect in respect of Alacer occurred and that, as a consequence, it would be inconsistent with the SSR Board’s fiduciary
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement
Termination Amounts. (1) SSR Tilray shall be entitled to the Alacer Aphria Termination Amount upon the occurrence of any of the following events (each a “Alacer Aphria Termination Amount Event”) which shall be paid by Alacer Aphria to SSRTilray, in consideration for the disposition of SSRTilray’s rights under this Agreement, within the time specified below in respect of each such Alacer Aphria Termination Amount Event:
(a) this Agreement is terminated by SSR Tilray pursuant to Section 8.2(1)(c)(i7.2(1)(c)(i) [Alacer Aphria Change in Recommendation] (but not including a termination by SSR pursuant to Section 8.2(1)(c)(i) in circumstances where the Alacer Change in Recommendation which led to such termination resulted solely because the Alacer Board, acting in good faith, determined that a Material Adverse Effect in respect of SSR occurred and that, as a consequence, it would be inconsistent with the Alacer Board’s fiduciary obligations to continue to recommend that the Alacer Shareholders vote in favour of the Arrangement Resolution) or Section 8.2(1)(c)(iv7.2(1)(c)(iv) [Alacer Wilful BreachAphria Material Breach of Article 5], in which case the Alacer Aphria Termination Amount shall be paid on the second business day Business Day following such termination; or
(b) this Agreement is terminated by Alacer Aphria pursuant to Section 8.2(1)(d)(ii7.2(1)(d)(ii) [Alacer Aphria Superior Proposal], in which case the Alacer Aphria Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(iii) [Alacer Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i) [Outside Date] or Section 8.2(1)(b)(iii7.2(1)(b)(iii) [No Alacer Aphria Shareholder Approval], ] or is terminated by Tilray pursuant to Section 7.2(1)(c)(iii) [Aphria Breach of Representation or Covenant] on the basis of a Wilful Breach but only if,
(i) prior to such termination, an Acquisition Proposal in respect of Alacer Aphria is publicly announced or otherwise publicly disclosed by any person or persons (other than SSR Tilray and its subsidiariesSubsidiaries) or any person or persons (other than SSR Tilray or any of its subsidiariesSubsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of AlacerAphria; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to Alacer Aphria is consummated or (2) Alacer Aphria or one or more of its subsidiariesSubsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Alacer Aphria Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(1)(c7.3(1)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(2) Alacer Aphria shall be entitled to the SSR Tilray Termination Amount upon the occurrence of any of the following events (each an “SSR Tilray Termination Amount Event”) which shall be paid by SSR Tilray to AlacerAphria, in consideration for the disposition of ▇▇▇▇▇▇Aphria’s rights under this Agreement, within the time specified below in respect of each such SSR Tilray Termination Amount Event:
(a) this Agreement is terminated by Alacer Aphria pursuant to Section 8.2(1)(d)(i7.2(1)(d)(i) [SSR Tilray Change in Recommendation] or Section 7.2(1)(d)(iv) [Tilray Material Breach of Article 5], in which case the Tilray Termination Amount shall be paid on the second Business Day following such termination; or
(but not including a termination b) this Agreement is terminated by Alacer Tilray pursuant to Section 8.2(1)(d)(i7.2(1)(c)(ii) [Tilray Superior Proposal], in circumstances where which case the SSR Change in Recommendation which led Tilray Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by either Party pursuant to Section 7.2(1)(b)(iv) [No Tilray Shareholder Approval] or is terminated by Aphria pursuant to Section 7.2(1)(d)(iii) [Tilray Breach of Representation or Covenant] on the basis of a Wilful Breach but only if,
(i) prior to such termination resulted solely because the SSR Boardtermination, acting in good faith, determined that a Material Adverse Effect an Acquisition Proposal in respect of Alacer occurred Tilray is publicly announced or otherwise publicly disclosed by any person or persons (other than Aphria and its Subsidiaries) or any person or persons (other than Aphria or any of its Subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of Tilray; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to Tilray is consummated or (2) Tilray or one or more of its Subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Tilray Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 7.3(2)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(3) The Aphria Termination Amount or the Tilray Termination Amount, as applicable, shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable.
(4) Each of the Parties acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the Aphria Termination Amount or the Tilray Termination Amount, as applicable, (i) is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a consequenceresult of the cancellation, it would be termination and disposition of all rights and obligations with respect to the direct or indirect acquisition of Aphria by Tilray in the circumstances in which the Aphria Termination Amount or the Tilray Termination Amount, as applicable, is payable, (ii) represents consideration for the disposition by the payee of its rights under this Agreement, (iii) that such payment is not for lost profits or a penalty, and (iv) that no Party shall take any position inconsistent with the SSR Board’s fiduciaryforegoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Subject to Section 7.2(3), each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 7.2 under circumstances where a Party is entitled to the Aphria Termination Amount or the Tilray Termination Amount, as applicable, and such Aphria Termination Amount or Tilray Termination Amount, as applicable, is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby.
(5) Nothing in this Section 7.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived.
Appears in 2 contracts
Sources: Arrangement Agreement (Tilray, Inc.), Arrangement Agreement (Aphria Inc.)
Termination Amounts.
(1) SSR SKYE shall be entitled to the Alacer EHT Termination Amount upon the occurrence of any of the following events (each a “Alacer EHT Termination Amount Event”) which shall be paid by Alacer EHT to SSRSKYE, in consideration for the disposition of SSRSKYE’s rights under this Agreement, within the time specified below in respect of each such Alacer EHT Termination Amount Event:
(a) this Agreement is terminated by SSR SKYE pursuant to Section 8.2(1)(c)(i7.2(1)(c)(i) [Alacer EHT Change in Recommendation] (but not including a termination by SSR pursuant to Section 8.2(1)(c)(i) in circumstances where the Alacer Change in Recommendation which led to such termination resulted solely because the Alacer Board, acting in good faith, determined that a Material Adverse Effect in respect of SSR occurred and that, as a consequence, it would be inconsistent with the Alacer Board’s fiduciary obligations to continue to recommend that the Alacer Shareholders vote in favour of the Arrangement Resolution) or Section 8.2(1)(c)(iv7.2(1)(c)(iv) [Alacer Wilful BreachEHT Material Breach of Article 5], in which case the Alacer EHT Termination Amount shall be paid on the second business day Business Day following such termination; or
(b) this Agreement is terminated by Alacer EHT pursuant to Section 8.2(1)(d)(ii7.2(1)(d)(ii) [Alacer EHT Superior Proposal], in which case the Alacer EHT Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(iii) [Alacer Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i) [Outside Date] or Section 8.2(1)(b)(iii7.2(1)(b)(iii) [No Alacer EHT Shareholder Approval], ] or is terminated by SKYE pursuant to Section 7.2(1)(c)(iii) [EHT Breach of Representation or Covenant] in circumstances where there has been a Wilful Breach but only if,if,
(i) prior to such termination, an Acquisition Proposal in respect of Alacer EHT is publicly announced or otherwise publicly disclosed by any person or persons (other than SSR SKYE and its subsidiariesSubsidiaries) or any person or persons (other than SSR SKYE or any of its subsidiariesSubsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of AlacerEHT; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to Alacer EHT is consummated or (2) Alacer EHT or one or more of its subsidiariesSubsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Alacer EHT Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(1)(c7.3(1)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(2) Alacer EHT shall be entitled to the SSR SKYE Termination Amount upon the occurrence of any of the following events (each an “SSR SKYE Termination Amount Event”) which shall be paid by SSR SKYE to AlacerEHT, in consideration for the disposition of ▇▇▇▇▇▇EHT’s rights under this Agreement, within the time specified below in respect of each such SSR SKYE Termination Amount Event:Event:
(a) this Agreement is terminated by Alacer EHT pursuant to Section 8.2(1)(d)(i7.2(1)(d)(i) [SSR SKYE Change in Recommendation] or Section 7.2(1)(d)(iv) [SKYE Material Breach of Article 5], in which case the SKYE Termination Amount shall be paid on the second Business Day following such termination; or
(but not including a termination b) this Agreement is terminated by Alacer SKYE pursuant to Section 8.2(1)(d)(i7.2(1)(c)(ii) [SKYE Superior Proposal], in which case the SKYE Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by EHT pursuant to Section 7.2(1)(d)(iii) [SKYE Breach of Representation or Covenant] in circumstances where the SSR Change in Recommendation which led there has been a ▇▇▇▇▇▇ ▇▇▇▇▇▇ but only if,
(i) prior to such termination resulted solely because the SSR Boardtermination, acting in good faith, determined that a Material Adverse Effect an Acquisition Proposal in respect of Alacer occurred SKYE is publicly announced or otherwise publicly disclosed by any person or persons (other than EHT and its Subsidiaries) or any person or persons (other than EHT or any of its Subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of SKYE; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to SKYE is consummated or (2) SKYE or one or more of its Subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the SKYE Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 7.3(2)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(3) The EHT Termination Amount or the SKYE Termination Amount, as applicable, shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable.
(4) Each of the Parties acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the EHT Termination Amount or the SKYE Termination Amount, as applicable, (i) is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a consequenceresult of the cancellation, it would be termination and disposition of all rights and obligations with respect to the direct or indirect acquisition of EHT by SKYE in the circumstances in which the EHT Termination Amount or the SKYE Termination Amount, as applicable, is payable, (ii) represents consideration for the disposition by the payee of its rights under this Agreement, (iii) that such payment is not for lost profits or a penalty, and (iv) that no Party shall take any position inconsistent with the SSR Board’s fiduciaryforegoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Subject to Section 7.2(3), each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 7.2 under circumstances where a Party is entitled to the EHT Termination Amount or the SKYE Termination Amount, as applicable, and such EHT Termination Amount or SKYE Termination Amount, as applicable, is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby.
(5) Nothing in this Section 7.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived.
Appears in 1 contract
Sources: Arrangement Agreement
Termination Amounts. (1) SSR shall be entitled to the Alacer Termination Amount upon the occurrence of any of the following events (each a “Alacer Termination Amount Event”) which shall be paid by Alacer to SSR, in consideration for the disposition of SSR’s rights under this Agreement, within the time specified below in respect of each such Alacer Termination Amount Event:
(a) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(i) [Alacer Change in Recommendation] (but not including a termination by SSR pursuant to Section 8.2(1)(c)(i) in circumstances where the Alacer Change in Recommendation which led to such termination resulted solely because the Alacer Board, acting in good faith, determined that a Material Adverse Effect in respect of SSR occurred and that, as a consequence, it would be inconsistent with the Alacer Board’s fiduciary obligations to continue to recommend that the Alacer Shareholders vote in favour of the Arrangement Resolution) or Section 8.2(1)(c)(iv) [Alacer Wilful Breach], in which case the Alacer Termination Amount shall be paid on the second business day following such termination; or
(b) this Agreement is terminated by Alacer pursuant to Section 8.2(1)(d)(ii) [Alacer Superior Proposal], in which case the Alacer Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(iii) [Alacer Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i) [Outside Date] or Section 8.2(1)(b)(iii) [No Alacer Shareholder Approval], but only if,
(i) prior to such termination, an Acquisition Proposal in respect of Alacer is publicly announced or otherwise publicly disclosed by any person or persons (other than SSR and its subsidiaries) or any person or persons (other than SSR or any of its subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of Alacer; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to Alacer is consummated or (2) Alacer or one or more of its subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Alacer Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(1)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(2) Alacer shall be entitled to the SSR Termination Amount upon the occurrence of any of the following events (each an “SSR Termination Amount Event”) which shall be paid by SSR to Alacer, in consideration for the disposition of ▇▇▇▇▇▇Alacer’s rights under this Agreement, within the time specified below in respect of each such SSR Termination Amount Event:
(a) this Agreement is terminated by Alacer pursuant to Section 8.2(1)(d)(i) [SSR Change in Recommendation] (but not including a termination by Alacer pursuant to Section 8.2(1)(d)(i) in circumstances where the SSR Change in Recommendation which led to such termination resulted solely because the SSR Board, acting in good faith, determined that a Material Adverse Effect in respect of Alacer occurred and that, as a consequence, it would be inconsistent with the SSR Board’s fiduciaryfiduciary obligations to continue to recommend that the SSR Shareholders vote in favour of the SSR Resolutions) or Section 8.2(1)(d)(iv) [SSR Wilful Breach], in which case the SSR Termination Amount shall be paid on the second business day following such termination; or
(b) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(ii) [SSR Superior Proposal], in which case the SSR Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by Alacer pursuant to Section 8.2(1)(c)(iii) [SSR Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i) [Outside Date] or Section 8.2(1)(b)(iv) [No SSR Shareholder Approval], but only if,
(i) prior to such termination, an Acquisition Proposal in respect of SSR is publicly announced or otherwise publicly disclosed by any person or persons (other than Alacer and its subsidiaries) or any person or persons (other than Alacer or any of its subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of SSR; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to SSR is consummated or (2) SSR or one or more of its subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the SSR Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(2)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(3) The Alacer Termination Amount or the SSR Termination Amount, as applicable, shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable.
(4) Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the Alacer Termination Amount or the SSR Termination Amount, as applicable, (i) is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a result of the cancellation, termination and disposition of all rights and obligations with respect to the direct or indirect acquisition of Alacer by SSR in the circumstances in which the Alacer Termination Amount or the SSR Termination Amount, as applicable, is payable, (ii) represents consideration for the disposition by the payee of its rights under this Agreement, (iii) that such payment is not for lost profits or a penalty, and (iv) that no Party shall take any position inconsistent with the foregoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Subject to Section 8.2(3), each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 8.2 under circumstances where a Party is entitled to the Alacer Termination Amount or the SSR Termination Amount, as applicable, and such Alacer Termination Amount or SSR Termination Amount, as applicable, is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby.
(5) Subject to the last sentence of Section 8.3(4), nothing in this Section 8.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived.
Appears in 1 contract
Termination Amounts. (1a) SSR Buyer shall be entitled to the Alacer Company Termination Amount upon the occurrence of any of the following events (each a “Alacer Company Termination Amount Event”) which shall be paid by Alacer the Company to SSRBuyer, in consideration for the disposition of SSRBuyer’s rights under this Agreement, within the time specified below in respect of each such Alacer Company Termination Amount Event:
(ai) this Agreement is terminated by SSR Buyer pursuant to Section 8.2(1)(c)(i) [Alacer Change in Recommendation] (but not including a termination by SSR pursuant to Section 8.2(1)(c)(i) in circumstances where the Alacer Change in Recommendation which led to such termination resulted solely because the Alacer Board, acting in good faith, determined that a Material Adverse Effect in respect of SSR occurred and that, as a consequence, it would be inconsistent with the Alacer Board’s fiduciary obligations to continue to recommend that the Alacer Shareholders vote in favour of the Arrangement Resolution) or Section 8.2(1)(c)(iv) [Alacer Wilful Breach]7.1(c)(i), in which case the Alacer Company Termination Amount shall be paid on the second business day (2nd) Business Day following such termination; or;
(bii) this Agreement is terminated by Alacer the Company pursuant to Section 8.2(1)(d)(ii) [Alacer Superior Proposal]7.1(d)(ii), in which case the Alacer Company Termination Amount shall be paid prior to or concurrent with such termination; or
(ciii) this Agreement is terminated by SSR Buyer pursuant to Section 8.2(1)(c)(iii7.1(b)(v) [Alacer Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i7.1(b)(i) [Outside Date] or Section 8.2(1)(b)(iii) [No Alacer Shareholder Approval]7.1(b)(iv), but only if,
(iA) prior to such termination, an Acquisition Proposal in respect of Alacer the Company is publicly announced or otherwise publicly disclosed by any person or persons (other than SSR Buyer and its subsidiariesSubsidiaries) or any person or persons (other than SSR Buyer or any of its subsidiariesSubsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of Alacerthe Company and such Acquisition Proposal has not been publicly withdrawn; and
(iiB) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (iA) above) with respect to Alacer the Company is consummated or (2) Alacer the Company or one or more of its subsidiariesSubsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (iA) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Alacer Company Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(1)(c7.3(a)(iii), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(2b) Alacer The Company shall be entitled to the SSR Buyer Termination Amount upon the occurrence of any of the following events (each an a “SSR Buyer Termination Amount Event”) which shall be paid by SSR Buyer to Alacerthe Company, in consideration for the disposition of ▇▇▇▇▇▇the Company’s rights under this Agreement, within the time specified below in respect of each such SSR Buyer Termination Amount Event:
(ai) this Agreement is terminated by Alacer the Company pursuant to Section 8.2(1)(d)(i7.1(d)(i), in which case the Buyer Termination Amount shall be paid on the second (2nd) [SSR Change in Recommendation] Business Day following such termination;
(but not including a termination ii) this Agreement is terminated by Alacer Buyer pursuant to Section 8.2(1)(d)(i7.1(c)(iii), in which case the Buyer Termination Amount shall be paid prior to or concurrent with such termination; or
(iii) in circumstances where this Agreement is terminated by the SSR Change in Recommendation which led Company pursuant to Section 7.1(b)(v) or by either Party pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii), but only if,
(A) prior to such termination resulted solely because the SSR Boardtermination, acting in good faith, determined that a Material Adverse Effect an Acquisition Proposal in respect of Alacer occurred Buyer is publicly announced or otherwise publicly disclosed by any person or persons (other than the Company and its Subsidiaries) or any person or persons (other than the Company or any of its Subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of Buyer and such Acquisition Proposal has not been publicly withdrawn; and
(B) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above) with respect to Buyer is consummated or (2) Buyer or one or more of its Subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Buyer Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 7.1(b)(iii), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(c) The Buyer Termination Amount or the Company Termination Amount, as applicable, shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable.
(d) Each of the Parties acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the Buyer Termination Amount or the Company Termination Amount, as applicable, (i) is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a consequenceresult of the cancellation, it would be termination and disposition of all rights and obligations with respect to the direct or indirect acquisition of the Company by Buyer in the circumstances in which the Buyer Termination Amount or the Company Termination Amount, as applicable, is payable, (ii) represents consideration for the disposition by the payee of its rights under this Agreement, (iii) that such payment is not for lost profits or a penalty, and (iv) that no Party shall take any position inconsistent with the SSR Board’s fiduciaryforegoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Subject to Section 7.2, each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 7.1 under circumstances where a Party is entitled to the Buyer Termination Amount or the Company Termination Amount, as applicable, and such Buyer Termination Amount or Company Termination Amount, as applicable, is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or Affiliates in connection with this Agreement or the transactions contemplated hereby.
(e) Subject to the last sentence of Section 7.3(d), nothing in this Section 7.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived.
(f) If a Party fails to pay when due any amount payable by it under this Section 7.3, then such Party shall pay to the other Party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid.
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Termination Amounts. (1) SSR SKYE shall be entitled to the Alacer EHT Termination Amount upon the occurrence of any of the following events (each a “Alacer EHT Termination Amount Event”) which shall be paid by Alacer EHT to SSRSKYE, in consideration for the disposition of SSRSKYE’s rights under this Agreement, within the time specified below in respect of each such Alacer EHT Termination Amount Event:: 328972.00001/116443569.20
(a) this Agreement is terminated by SSR SKYE pursuant to Section 8.2(1)(c)(i7.2(1)(c)(i) [Alacer EHT Change in Recommendation] (but not including a termination by SSR pursuant to Section 8.2(1)(c)(i) in circumstances where the Alacer Change in Recommendation which led to such termination resulted solely because the Alacer Board, acting in good faith, determined that a Material Adverse Effect in respect of SSR occurred and that, as a consequence, it would be inconsistent with the Alacer Board’s fiduciary obligations to continue to recommend that the Alacer Shareholders vote in favour of the Arrangement Resolution) or Section 8.2(1)(c)(iv7.2(1)(c)(iv) [Alacer Wilful BreachEHT Material Breach of Article 5], in which case the Alacer EHT Termination Amount shall be paid on the second business day Business Day following such termination; or
(b) this Agreement is terminated by Alacer EHT pursuant to Section 8.2(1)(d)(ii7.2(1)(d)(ii) [Alacer EHT Superior Proposal], in which case the Alacer EHT Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by SSR pursuant to Section 8.2(1)(c)(iii) [Alacer Breach of Reps or Covenants] or by either Party pursuant to Section 8.2(1)(b)(i) [Outside Date] or Section 8.2(1)(b)(iii7.2(1)(b)(iii) [No Alacer EHT Shareholder Approval], ] or is terminated by SKYE pursuant to Section 7.2(1)(c)(iii) [EHT Breach of Representation or Covenant] in circumstances where there has been a Wilful Breach but only if,
(i) prior to such termination, an Acquisition Proposal in respect of Alacer EHT is publicly announced or otherwise publicly disclosed by any person or persons (other than SSR SKYE and its subsidiariesSubsidiaries) or any person or persons (other than SSR SKYE or any of its subsidiariesSubsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of AlacerEHT; and
(ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to Alacer EHT is consummated or (2) Alacer EHT or one or more of its subsidiariesSubsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the Alacer EHT Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 8.3(1)(c7.3(1)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(2) Alacer EHT shall be entitled to the SSR SKYE Termination Amount upon the occurrence of any of the following events (each an “SSR SKYE Termination Amount Event”) which shall be paid by SSR SKYE to AlacerEHT, in consideration for the disposition of ▇▇▇▇▇▇EHT’s rights under this Agreement, within the time specified below in respect of each such SSR SKYE Termination Amount Event:
(a) this Agreement is terminated by Alacer EHT pursuant to Section 8.2(1)(d)(i7.2(1)(d)(i) [SSR SKYE Change in Recommendation] or Section 7.2(1)(d)(iv) [SKYE Material Breach of Article 5], in which case the SKYE Termination Amount shall be paid on the second Business Day following such termination; or
(but not including a termination b) this Agreement is terminated by Alacer SKYE pursuant to Section 8.2(1)(d)(i7.2(1)(c)(ii) [SKYE Superior Proposal], in which case the SKYE Termination Amount shall be paid prior to or concurrent with such termination; or
(c) this Agreement is terminated by EHT pursuant to Section 7.2(1)(d)(iii) [SKYE Breach of Representation or Covenant] in circumstances where the SSR Change in Recommendation which led there has been a Wilful Breach but only if,
(i) prior to such termination resulted solely because the SSR Boardtermination, acting in good faith, determined that a Material Adverse Effect an Acquisition Proposal in respect of Alacer occurred SKYE is publicly announced or otherwise publicly disclosed by any person or persons (other than EHT and its Subsidiaries) or any person or persons (other than EHT or any of its Subsidiaries) shall have publicly announced an intention to make an Acquisition Proposal in respect of SKYE; and 328972.00001/116443569.20 (ii) within 12 months following the date of such termination, (1) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) with respect to SKYE is consummated or (2) SKYE or one or more of its Subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination), in which case the SKYE Termination Amount shall be payable on or prior to consummation of the applicable transaction referred to therein. For purposes of this Section 7.3(2)(c), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”.
(3) The EHT Termination Amount or the SKYE Termination Amount, as applicable, shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable.
(4) Each of the Parties acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the EHT Termination Amount or the SKYE Termination Amount, as applicable, (i) is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a consequenceresult of the cancellation, it would be termination and disposition of all rights and obligations with respect to the direct or indirect acquisition of EHT by SKYE in the circumstances in which the EHT Termination Amount or the SKYE Termination Amount, as applicable, is payable, (ii) represents consideration for the disposition by the payee of its rights under this Agreement, (iii) that such payment is not for lost profits or a penalty, and (iv) that no Party shall take any position inconsistent with the SSR Board’s fiduciaryforegoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Subject to Section 7.2(3), each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 7.2 under circumstances where a Party is entitled to the EHT Termination Amount or the SKYE Termination Amount, as applicable, and such EHT Termination Amount or SKYE Termination Amount, as applicable, is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby.
(5) Nothing in this Section 7.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived.
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