Termination Fee and Expense Reimbursement. (a) In the event that this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i), the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (ii) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i), then, on the date of consummation of such transaction, the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”. (b) In the event that this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii), then, prior to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent. (c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent. (d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3, the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement. (e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith). (f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)). (g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Termination Fee and Expense Reimbursement. (a) In the event that If (x) this Agreement is validly terminated by either the Company or Parent pursuant to (i) Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i7.1(b)(i) (provided that with respect to Section 8.1(b)(iTermination Date) and Section 8.1(c)(i), the Requisite Company Stockholder Vote Minimum Tender Condition has not been obtainedsatisfied at the time of such termination, (ii) Section 7.1(c)(i) (Breach by GFI), (iii) Section 7.1(c)(ii) (Violation of Alternative Proposals) or (iv) Section 7.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (iiy) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter termination, (1) GFI enters into a definitive agreement for to consummate a transaction contemplated by any Takeover Proposal that (regardless of when made and such transaction is subsequently thereafter consummated (within such twelve regardless of when consummated)) or (12)-month period or within six (62) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the GFI consummates a transaction contemplated by any Takeover Proposal in sub-clause (iregardless of when made), thenthen GFI shall pay, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing $24,318,534 (the “Termination Fee”) less the amount, if any, of the Expenses of Parent paid by Parent. For GFI pursuant to Section 7.3(b), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 8.3(a7.3(a), each reference to “20%” or “80%” in the definition of term “Takeover Proposal” shall have the meaning ascribed thereto in Section 5.4(e) (Alternative Proposals), except that all references to 20% shall be deemed changed to be a reference to “50%”.
(b) In the event that If this Agreement is terminated by pursuant to (i) Section 7.1(b)(i) (Termination Date) and the Company Minimum Tender Condition has not been satisfied at the time of such termination, then GFI shall reimburse Parent for all of its reasonable and documented Expenses up to a maximum amount of $6,948,153 within five Business Days of delivery of a reasonable detailed written notice from Parent requesting payment thereof.
(c) If this Agreement is terminated pursuant to Section 8.1(d)(ii)7.1(d)(ii) (Superior Proposal) then GFI shall pay, then, prior to or concurrently with such termination, the Company shall pay or cause to be paid paid, to Parent the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by ParentFee.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge GFI agrees that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated herebythis Agreement, and that, without these agreements, the parties Parent would not enter into this Agreement. Accordingly, and that if GFI fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 7.3 and, in order to obtain such payment, Parent commences a penalty. If suit that results in a judgment against GFI for such amounts, GFI shall pay interest on such amounts from the Company fails to pay as directed in writing by Parent date the Termination Fee payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses Expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreementsuit.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated pursuant to this Article VII, GFI shall reimburse Parent for any portion of the BGC Advance paid by the Company or Parent pursuant to Section 8.1(b)(iii5.14 (BGC Advance) under circumstances in which prior to such termination on the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))terms attached as Exhibit B hereto.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 2 contracts
Sources: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Termination Fee and Expense Reimbursement. (a) In the event that If (x) this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.1(b)(i(i) or Section 8.1(b)(iii) or by Parent pursuant to (No Stockholder Approval), (ii) Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(iBreach by GFI), the Requisite Company Stockholder Vote has not been obtained(iii) Section 8.1(c)(ii) (Violation of No Solicitation) or (iv) Section 8.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (iiy) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter termination, (A) GFI enters into a definitive agreement for to consummate a transaction contemplated by any Takeover Proposal that (regardless of when made and such transaction is subsequently thereafter consummated (within such twelve regardless of when consummated)) or (12)-month period or within six (6B) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the GFI consummates a transaction contemplated by any Takeover Proposal in sub-clause (iregardless of when made), thenthen GFI shall pay, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) the Termination Fee CME, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing $23,426,111 less the amount, if any, of the Expenses of CME paid by Parent. For GFI pursuant to Section 8.3(b), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “term "Takeover Proposal” " shall have the meaning ascribed thereto in Section 6.5(f) (No Solicitation), except that all references to 20% shall be deemed changed to be a reference to “50%”.
(b) In the event that If this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii8.1(b)(iii) (No Stockholder Approval), then, prior then GFI shall reimburse CME for all of its reasonable and documented Expenses up to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer a maximum amount of immediately available funds to an account designated in writing by Parent$6,693,175 within five Business Days of delivery of a reasonable detailed written notice from CME requesting payment thereof.
(c) In the event that If this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii8.1(b)(i) (Termination Date), Section 8.1(b)(ii) (Restraint), or Section 8.1(b)(iv) (Other Transactions) in connection with any failure to obtain any required Regulatory Approval set forth in Section 7.1(c)(iii) of the GFI Disclosure Letter, then the Company GFI shall promptly, but in no event later than reimburse CME for all of its reasonable Expenses up to a maximum amount of $10 million within five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer delivery of immediately available funds to an account designated in writing by Parenta reasonably detailed written notice from CME requesting payment thereof.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge GFI agrees that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated herebythis Agreement, and that, without these agreements, the parties CME would not enter into this Agreement. Accordingly, and that if GFI fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute and, in order to obtain such payment, CME commences a penalty. If the Company fails to pay as directed suit that results in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3a judgment against GFI for such amounts, the Company GFI shall pay interest on such amounts from the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including date the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required was due to be paid until the date of actual payment. Notwithstanding payment at the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) prime rate of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements Bank of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described New York in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after on the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent)such payment was due, any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at together with the reasonable request Expenses of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued CME in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))such suit.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 2 contracts
Sources: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
Termination Fee and Expense Reimbursement. (a) In the event that If (x) this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.1(b)(i(i) or Section 8.1(b)(iii) or by Parent pursuant to (No Stockholder Approval), (ii) Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(iBreach by GFI), the Requisite Company Stockholder Vote has not been obtained(iii) Section 8.1(c)(ii) (Violation of No Solicitation) or (iv) Section 8.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (iiy) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter termination, (A) GFI enters into a definitive agreement for to consummate a transaction contemplated by any Takeover Proposal that (regardless of when made and such transaction is subsequently thereafter consummated (within such twelve regardless of when consummated)) or (12)-month period or within six (6B) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the GFI consummates a transaction contemplated by any Takeover Proposal in sub-clause (iregardless of when made), thenthen GFI shall pay, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) the Termination Fee CME, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing $20,143,121 less the amount, if any, of the Expenses of CME paid by Parent. For GFI pursuant to Section 8.3(b), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of term “Takeover Proposal” shall have the meaning ascribed thereto in Section 6.5(f) (No Solicitation), except that all references to 20% shall be deemed changed to be a reference to “50%”.
(b) In the event that If this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii8.1(b)(iii) (No Stockholder Approval), then, prior then GFI shall reimburse CME for all of its reasonable and documented Expenses up to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer a maximum amount of immediately available funds to an account designated in writing by Parent$5,755,177 within five Business Days of delivery of a reasonable detailed written notice from CME requesting payment thereof.
(c) In the event that If this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii8.1(b)(i) (Termination Date), Section 8.1(b)(ii) (Restraint), or Section 8.1(b)(iv) (Other Transactions) in connection with any failure to obtain any required Regulatory Approval set forth in Section 7.1(c)(iii) of the GFI Disclosure Letter, then the Company GFI shall promptly, but in no event later than reimburse CME for all of its reasonable Expenses up to a maximum amount of $10 million within five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer delivery of immediately available funds to an account designated in writing by Parenta reasonably detailed written notice from CME requesting payment thereof.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge GFI agrees that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated herebythis Agreement, and that, without these agreements, the parties CME would not enter into this Agreement. Accordingly, and that if GFI fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute and, in order to obtain such payment, CME commences a penalty. If the Company fails to pay as directed suit that results in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3a judgment against GFI for such amounts, the Company GFI shall pay interest on such amounts from the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including date the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required was due to be paid until the date of actual payment. Notwithstanding payment at the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) prime rate of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements Bank of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described New York in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after on the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent)such payment was due, any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at together with the reasonable request Expenses of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued CME in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))such suit.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
Termination Fee and Expense Reimbursement. (a) In the event that this Agreement is validly terminated by either the Company or Parent Buyer pursuant to Section 8.1(b)(i8.4(b) or Section 8.1(b)(iii) 8.4(c), or by Parent MLP pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i8.3(b), MLP shall pay to the Requisite Company Stockholder Vote has not been obtainedEscrow Agent for the benefit of Buyer an amount equal to $50.8 million (the “Termination Fee”) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) within three Business Days of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as date of such termination (in the case of a termination pursuant to Section 8.1(b)(i8.4(b) or Section 8.1(c)(i8.4(c)) or the time of the Company Stockholders Meeting concurrently with such termination (in the case of a termination pursuant to Section 8.1(b)(iii8.3(b)).
(b) In the event this Agreement is terminated by MLP or Buyer pursuant to Section 8.2(c), MLP shall reimburse the Buyer Parties for all their documented out-of-pocket costs and expenses actually incurred in connection with this Agreement and the transactions contemplated hereby, including all legal fees, accounting fees, financial advisory fees and other professional and non-professional fees and expenses as well as any commitment fees or other fees required by the Commitment Letters to be paid by the Buyer Parties, in an amount not exceeding $10.0 million in the aggregate (the “Expense Reimbursement”), within three Business Days of the date of such termination.
(c) In the event that (i) a bona fide MLP Takeover Proposal has been publicly communicated to or otherwise publicly made known to the unitholders of MLP or any Person has publicly announced an intention (whether or not conditional) to make an MLP Takeover Proposal and such MLP Takeover Proposal or intention to make an MLP Takeover Proposal has not been withdrawn prior to the MLP Unitholder Meeting (or if the MLP Unitholder Meeting has not occurred, prior to the termination of this Agreement pursuant to 8.2(a) or Section 8.4(a)); (ii) within twelve thereafter this Agreement is terminated pursuant to Section 8.2(a), Section 8.2(c) or Section 8.4(a); and (12iii) prior to the date that is 12 months after the date of such termination termination, MLP enters into any definitive agreement related to an MLP Takeover Proposal, then MLP shall pay to the Company shall consummate a Escrow Agent for the benefit of Buyer an amount equal to the Termination Fee less any previously paid Expense Reimbursement, if and when such Takeover Proposal or is consummated; provided, however, that for purposes of this Section 8.6(c) “50%” shall substituted for “15%” in the definition of MLP Takeover Proposal.
(d) Any Termination Fee and Expense Reimbursement shall be paid by wire transfer of same day funds to an account designated by Buyer in writing in accordance with Section 9.3. Each of the MLP Parties acknowledges that the agreements contained in this Section 8.6 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Buyer Parties would not enter into this Agreement. Each of the MLP Parties further acknowledges and agrees that a definitive agreement Termination Fee is not a penalty, but rather liquidated damages in amounts reasonably estimated by the Parties to compensate the Buyer Parties for efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby. Accordingly, if MLP fails promptly to pay the amount due pursuant to this Section 8.6 and, in order to obtain such payment, Buyer commences a Takeover Proposal that is subsequently consummated Proceeding which results in an order against MLP for the Termination Fee or Expense Reimbursement, MLP shall pay to Buyer its costs and expenses (within including attorneys’ fees and expenses) in connection with such twelve Proceeding, together with interest on any unpaid amount of the Termination Fee or Expense Reimbursement at the rate on six-month U.S. Treasury obligations plus 500 basis points in effect on the date such payment was required to be made, calculated on a daily basis from the date the Termination Fee or Expense Reimbursement was required to be paid until the date of the actual payment. Notwithstanding anything contained in this Agreement to the contrary, if a Termination Fee becomes due and payable and MLP pays a Termination Fee, none of the MLP Parties shall have any further liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby. For the avoidance of doubt, under no circumstances shall MLP be required to pay more than one Termination Fee or more than one Expense Reimbursement.
(12)-month period or within six e) Any amounts paid to the Escrow Agent pursuant to this Section 8.6, together with interest thereon (6the “Escrow Fund”), shall be released by the Escrow Agent to Buyer as follows:
(i) months thereafter) with at any time prior to the Person or end of the fiscal year in which the payment was made to the Escrow Agent, Buyer shall submit to the Escrow Agent a certificate demanding a portion of the Escrow Fund equal to no greater than 70% of the maximum remaining amount that, in the good faith view of Buyer, may still be taken into the gross revenues of Buyer and be treated as if such amount were not “groupqualifying income” (as defined under in Section 13(d) 7704 of the Exchange Act Code) while satisfying the qualifying income exception required for partnership treatment for publicly traded partnerships, after taking into consideration all other sources of non-qualifying income (such maximum remaining amount, the “Non-Qualifying Income Cushion”), and the rules and regulations thereunder) that made Escrow Agent shall within one Business Day thereafter, pay Buyer the Takeover Proposal in sub-clause (i)amount demanded, then, on the date of consummation of such transaction, the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parentthe Buyer;
(ii) during the fiscal year following the date that the payment was made to the Escrow Agent but prior to the passage of 30 calendar days following the filing of the IRS Form 1065 for the prior fiscal year, Buyer shall submit to the Escrow Agent a certificate identifying the actual Non-Qualifying Income Cushion from the prior year. For purposes If the payment contemplated by clause (i) above was (A) less than 80% of this Section 8.3(a)the actual Non-Qualifying Income Cushion, each reference then Buyer shall submit to “20%” the Escrow Agent a certificate demanding a portion of the Escrow Fund equal to an amount which, when combined with the payment contemplated by clause (i) shall equal 90% of the actual Non-Qualifying Income Cushion, and the Escrow Agent shall within one Business Day thereafter, pay Buyer the amount demanded; (B) greater than or “equal to 80%” in , but less than or equal to 90% of the definition actual Non-Qualifying Income Cushion, then Buyer shall notify the Escrow Agent that it shall not demand any additional payments from the Escrow Account; and (C) greater than 90% of “Takeover Proposal” the actual Non-Qualifying Income Cushion, then Buyer shall deliver a certificate to such effect to the Escrow Agent and return to the Escrow Fund an amount equal to the excess of the payment contemplated by clause (i) over 80% of the Non-Qualifying Income Cushion. Any payment under this clause (ii) shall be deemed to be a reference to “50%”.
(b) In the event that this Agreement is terminated made by the Company pursuant to Section 8.1(d)(ii)Escrow Agent, thenor Buyer, prior to or concurrently with such terminationas the case may be, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.Buyer or the Escrow Agent, as the case may be; and
(ciii) In within one Business Day following the event that this Agreement is terminated earlier of (A) completion of the procedures as contemplated by Parent pursuant to Section 8.1(c)(ii)8.6(e)(ii) above and (B) the passage of 30 days following the filing of the IRS Form 1065 for the prior fiscal year, then the Company Escrow Agent shall promptlypay MLP the remainder, but in no event later than five (5) Business Days after if any, of the date of such terminationEscrow Fund, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by ParentMLP.
(df) The parties agree Each Party acknowledges and understand agrees that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) the amount of a payment, if Parent receives the Termination Fee from the Company any, pursuant to this clause (ii) of Section 8.38.6(e) is uncertain, such payment shall be and that depending on the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none amount of the Companydemands made by Buyer pursuant to clause (ii) of Section 8.6(e), any the Escrow Fund may be insufficient to permit payments to MLP pursuant to clause (iii) of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d8.6(e); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled MLP shall have no rights to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3, the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from Escrow Fund or to audit or inquire into the IRS holding that the receipt amounts demanded by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release paid to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))Buyer.
(g) In the event that this Agreement is terminated Buyer exercises the “Option” as defined, and in accordance with, the Option Agreement, the Escrow Agent or Buyer, as applicable, shall return to MLP an amount equal to $21.8 million upon the full performance by the Company or Parent MLP General Partner, CW Gas Holdings and CW Holdings of their obligations pursuant to Section 8.1(b)(iv2.3(a) under circumstances in which of the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Option Agreement within three Business Days after submission of reasonable documentation therefor, for all the date of their out-of-pocket fees and expenses (including all fees and expenses such performance. Section 8.6(e) shall apply mutatis mutandis in respect of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (any such return as if “MLP” was the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds Buyer” referred to the Company (or its designee(s))herein.
Appears in 2 contracts
Sources: Merger Agreement (Inergy L P), Merger Agreement (Inergy Midstream, L.P.)
Termination Fee and Expense Reimbursement. (a) In the event that this Agreement is validly terminated by either the Company or Parent pursuant Symetra will pay to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i)Sumitomo, the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (ii) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i), then, on the date of consummation of such transaction, the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated funds, the amounts set forth in writing by Parent. For purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”.9.03
(ba) In the event that if this Agreement is terminated by under the Company pursuant to Section 8.1(d)(ii), then, prior to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
following circumstances (c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) The parties agree it being understood and understand agreed that in no event shall the Company will Symetra be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), ):
(i) if Parent receives this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii), then Symetra will pay the Termination Fee from by the Company second Business Day following the date of such termination (it being understood that Symetra’s failure to reaffirm under such circumstances will not be deemed an intentional and material breach of this Agreement);
(ii) if this Agreement is terminated by Sumitomo pursuant to Section 9.01(c)(i), and if Section 9.03(a)(iii) is not applicable, then Symetra will pay to Sumitomo the Expense Reimbursement incurred by Sumitomo and its Affiliates on or prior to termination by wire transfer of immediately available funds within three Business Days after delivery by Sumitomo to Symetra of a written statement setting forth the amount thereof and attaching applicable documentation; or
(iii) if this Agreement is terminated (A) by either Party pursuant to Section 9.01(b)
(i) without a vote of the stockholders of Symetra contemplated by this Agreement at the Stockholders Meeting having occurred and, on the End Date, all of the conditions precedent to the Closing (other than the condition precedent set forth in Section 8.01(a)) have been satisfied (or in the case of conditions precedent that by their terms are to be satisfied at the Closing, are capable of being satisfied on the End Date) or (B) pursuant to Section 9.01(b)(iii) or Section 9.01(c)(i) and, in any such case, an Acquisition Proposal has been publicly announced or has otherwise become publicly known, or any Person has publicly announced or communicated an intention, whether or not conditional, to make an Acquisition Proposal, at any time after the date of this Agreement and prior to the time of the taking of the vote of the stockholders of Symetra at the Stockholders Meeting (or prior to the termination of this Agreement if there has been no Stockholders Meeting), and at such time such Acquisition Proposal or such intent has not been publicly withdrawn or repudiated by such Person, then
(A) Symetra will pay the Expense Reimbursement to Sumitomo by wire transfer of immediately available funds within three Business Days after delivery by Sumitomo to Symetra of a written statement setting forth the amount thereof and attaching applicable documentation; and
(B) if, within 12 months after the date of such termination, Symetra either consummates a transaction contemplated by any Acquisition Proposal (including any Acquisition Proposal made after the date of the termination of this Agreement), or enters into a definitive agreement to consummate a transaction contemplated by any Acquisition Proposal and Symetra thereafter consummates such Acquisition Proposal (whether or not within such 12-month period), then Symetra will pay the Termination Fee by the third Business Day following the date Symetra consummates such transaction; provided that, for purposes of this Section 9.03(a)(iii)(B), all references to 15 percent including in the definition of the term “Acquisition Proposal” will be changed to 50 percent; and provided, further, that the amount of any Expense Reimbursement paid to Sumitomo pursuant to the foregoing clause (A) will be credited against and will reduce the Termination Fee payable pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of 9.03(a)(iii)(B); or
(iv) if this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this is terminated pursuant to Section 8.3(d9.01(d)(ii); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive then Symetra will pay the Termination Fee under on the date of such termination.
(b) If this Agreement is terminated by Symetra pursuant to Section 8.39.01(d)(i), then Sumitomo will pay to Symetra the Expense Reimbursement incurred by Symetra and its Affiliates on or prior to termination by wire transfer of immediately available funds within three Business Days after delivery by Symetra to Sumitomo of a written statement setting forth the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge thereof and attaching applicable documentation.
(c) Each Party acknowledges and agrees that the agreements contained in this Section 8.3 9.03 are an integral part of the transactions transaction contemplated hereby, by this Agreement and that, without these agreements, the parties other Party would not enter into this Agreement. Accordingly, and that if a Party fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 9.03 (the “Defaulting Party”) and, in order to obtain such payment, the other Party commences any Proceeding that results in a penalty. If judgment against the Company fails to Defaulting Party for such amounts, the Defaulting Party will pay as directed in writing by Parent interest on such amounts from the Termination Fee date payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York Mellon Corporation in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counselexpenses) incurred by Parent the other Party in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual paymentProceeding. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful Each Party acknowledges and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide agrees that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent Expense Reimbursement pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is 9.03 will not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and preclude the other transactions contemplated by Party after the termination of this Agreement, in the case of an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment intentional and material breach of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)).
(g) In the event that this Agreement is terminated or fraud by the Company Defaulting Party, from seeking additional damages from the Defaulting Party on account of such intentional and material breach or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s))fraud.
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Termination Fee and Expense Reimbursement. (a) In the event that If (x) this Agreement is validly terminated by either the Company or Parent pursuant to (i) Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i7.1(b)(i) (provided that with respect to Section 8.1(b)(iTermination Date) and Section 8.1(c)(i), the Requisite Company Stockholder Vote Minimum Tender Condition has not been obtainedsatisfied at the time of such termination, (ii) Section 7.1(c)(i) (Breach by GFI), (iii) Section 7.1(c)(ii) (Violation of Alternative Proposals) or (iv) Section 7.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (iiy) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter termination, (1) GFI enters into a definitive agreement for to consummate a transaction contemplated by any Takeover Proposal that (regardless of when made and such transaction is subsequently thereafter consummated (within such twelve regardless of when consummated)) or (12)-month period or within six (62) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the GFI consummates a transaction contemplated by any Takeover Proposal in sub-clause (iregardless of when made), thenthen GFI shall pay, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing $25,898,298 (the “Termination Fee”) less the amount, if any, of the Expenses of Parent paid by Parent. For GFI pursuant to Section 7.3(b), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 8.3(a7.3(a), each reference to “20%” or “80%” in the definition of term “Takeover Proposal” shall have the meaning ascribed thereto in Section 5.4(e) (Alternative Proposals), except that all references to 20% shall be deemed changed to be a reference to “50%”.
(b) In the event that If this Agreement is terminated by pursuant to (i) Section 7.1(b)(i) (Termination Date) and the Company Minimum Tender Condition has not been satisfied at the time of such termination, then GFI shall reimburse Parent for all of its reasonable and documented Expenses up to a maximum amount of $7,399,513 within five Business Days of delivery of a reasonable detailed written notice from Parent requesting payment thereof.
(c) If this Agreement is terminated pursuant to Section 8.1(d)(ii)7.1(d)(ii) (Superior Proposal) then GFI shall pay, then, prior to or concurrently with such termination, the Company shall pay or cause to be paid paid, to Parent the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by ParentFee.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge GFI agrees that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated herebythis Agreement, and that, without these agreements, the parties Parent would not enter into this Agreement. Accordingly, and that if GFI fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 7.3 and, in order to obtain such payment, Parent commences a penalty. If suit that results in a judgment against GFI for such amounts, GFI shall pay interest on such amounts from the Company fails to pay as directed in writing by Parent date the Termination Fee payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses Expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreementsuit.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated pursuant to this Article VII, GFI shall reimburse Parent for any portion of the BGC Advance paid by the Company or Parent pursuant to Section 8.1(b)(iii5.14 (BGC Advance) under circumstances in which prior to such termination on the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))terms attached as Exhibit B hereto.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
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Termination Fee and Expense Reimbursement. (a) In The Company shall pay to Parent, by wire transfer of immediately available funds, the event that amounts set forth in this Section 7.3 if this Agreement is validly terminated under the following circumstances:
(i) if this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii) or 7.1(d)(iii), then the Company shall pay the Termination Fee by the second Business Day following the date of such termination;
(ii) if (A) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(b)(i7.1(b)(i) without a vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting having occurred or Section 8.1(b)(iii) is terminated by either the Company or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i7.1(b)(iii), the Requisite Company Stockholder Vote and in either such case an Acquisition Proposal has not been obtained) and (i) a Takeover Proposal was publicly proposed announced or announced by has otherwise become publicly known, or any Person (includinghas publicly announced or communicated an intention, without limitationwhether or not conditional, to make an Acquisition Proposal, at any time after the Company or date of this Agreement and prior to the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) date of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as termination of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) this Agreement or the time of the taking of the vote of the shareholders of the Company Stockholders Meeting (in at the case of a termination pursuant to Section 8.1(b)(iii))Company Meeting, as applicable, and (iiB) within twelve (12) months after the date of such termination termination, the Company shall consummate a Takeover Proposal or enter (1) enters into a definitive agreement for a Takeover to consummate the transaction contemplated by any Acquisition Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that including any Acquisition Proposal made the Takeover Proposal in sub-clause (i), then, on after the date of consummation the termination of this Agreement) and the acquisition contemplated by such transactionAcquisition Proposal is later consummated or (2) consummates the transaction contemplated by any Acquisition Proposal (including any Acquisition Proposal made after the date of the termination of this Agreement), then the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”.second Business Day following the date the Company consummates such transaction; or
(biii) In the event that if this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii7.1(c)(ii), then, prior to or concurrently with such termination, then the Company shall pay or cause to be paid to Parent the Termination Fee on the date, and as a condition to the effectiveness, of such termination.
(b) For purposes of Section 7.3(a)(ii), all references to 15 percent in the term “Acquisition Proposal” shall be deemed to be 50 percent.
(c) If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(i) without a vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting having occurred or pursuant to Section 7.1(b)(iii) and, in either case, the conditions set forth in Section 7.3(a)(ii)(A) regarding a publicly announced, publicly known or otherwise communicated Acquisition Proposal or intention to make an Acquisition Proposal are applicable, then the Company shall pay the Expense Reimbursement to Parent by wire transfer of immediately available funds to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) within three Business Days after delivery by Parent to the date Company of such terminationa written statement setting forth the amount thereof and attaching applicable documentation. If, pay or cause to be paid to Parent after payment of the Expense Reimbursement, the Termination Fee subsequently becomes payable by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3, the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be Expense Reimbursement paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)).
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 1 contract
Termination Fee and Expense Reimbursement. (a) In To the event that extent the bid reflected in this Agreement is validly terminated by either constitutes the Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i), the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” Successful Bid (as defined under Section 13(d) of in the Exchange Act and the rules and regulations thereunderSale Procedures Order), in each case after May 4if, 2021 and not withdrawn or abandoned as of such termination (in following the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii))Sale Order Entry, and (ii) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i), then, on the date of consummation of such transaction, the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”.
(b) In the event that this Agreement is terminated by the Company Buyer pursuant to Section 8.1(d)(ii8.1(b) (solely to the extent such termination arises from the nonsatisfaction of the condition set forth in Section 7.1(c) (OFAC License) for any reason not related to the identity of the Buyer) or Section 8.1(e) (solely to the extent such termination, and the failure to satisfy one or more conditions set forth in Section 7.2, arises from either (i) the Special Master’s breach of the covenants contained in Section 6.1 or (ii) the occurrence of a Company Material Adverse Effect, then, pursuant to the bidder protections set forth in the January Order, the Buyer shall be deemed to hold a claim equal to the Expense Reimbursement Amount as a priority claim over the judgments held by Crystallex, ConocoPhillips and the Additional Judgment Creditors as set forth in the Priority Order [D.I. 996], dated March 1, 2024, in the Specified Litigation, which amount shall be paid to the Buyer from the proceeds, and at the closing, of a subsequent sale of the Shares pursuant to the Specified Litigation.
(b) To the extent the bid reflected in this Agreement constitutes the Successful Bid, if, following the Sale Order Entry, this Agreement is terminated by the Special Master pursuant to Section 8.1(g), then, prior pursuant to or concurrently with such terminationthe bidder protections set forth in the January Order, the Company Buyer shall pay or cause be entitled to be paid the Expense Reimbursement Amount in-full by the Venezuela Parties (as defined in the Sale Procedures Order) prior to Parent the Termination Fee by wire transfer any payments made on account of immediately available funds to an account designated in writing by Parentany other Specified Litigation Claims.
(c) In the event that If this Agreement is terminated by Parent the Special Master pursuant to Section 8.1(c)(ii8.1(d), then then, in accordance with the Company January Order, to the extent the transaction contemplated by the Unsolicited Competing Proposal Agreement is consummated, (A) the Stalking Horse Bidder shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause be entitled to be paid to Parent the Termination Fee by wire transfer and (B) the Buyer shall be entitled to be paid the Expense Reimbursement Amount from the Unsolicited Competing Proposal acquiror from the proceeds, and at the closing, of immediately available funds to an account designated the transactions provided in writing by Parentsuch Unsolicited Competing Proposal.
(d) The parties Parties acknowledge and agree that the Expense Reimbursement Amount (to the extent applicable) and understand that in no event the other provisions of this Section 8.3 are an integral part of the Transactions, (ii) the Expense Reimbursement Amount (to the extent applicable) shall constitute liquidated damages and not a penalty, and (iii) without these agreements, the Company be required to pay the Termination Fee on more than one occasion. Parties would not enter into this Agreement.
(e) Notwithstanding anything to the contrary set forth in this Agreement Agreement, but subject to Section 8.3(f9.13 and this Section 8.3(e), (i) if Parent receives in the Termination Fee from event this Agreement is terminated, each of the Company Parties expressly acknowledges and agrees that the Buyer’s right to receive payment of the Expense Reimbursement Amount pursuant to Section 8.3(b) (or Section 8.3(c) (to the extent the bid reflected in this Section 8.3, such payment shall be Agreement constitutes the Successful Bid) constitutes the sole and exclusive remedy of Parent the Buyer and Merger Sub its Affiliates, and all other affected Persons against the Special Master, the Company and the Company Subsidiaries each of their respective former, current or future Affiliates and any of their respective former, current or future officersgeneral or limited partners, equityholders, subsidiaries, members, managers, directors, partnersofficers, stockholdersemployees, managersagents, members Affiliates, successors, beneficiaries, heirs and assigns (collectively, the “Special Master and Company Related Parties”) for all losses and damages (including attorneys’ fees and expenses) in respect of this Agreement (and the termination hereof) or Affiliates the Transactions (and the abandonment thereof), or any breach (whether intentional, unintentional or otherwise) of any representation, warranty, covenant or agreement in this Agreement, and none of the CompanyBuyer or its Affiliates or any other affected Person shall be entitled to bring or maintain any other Legal Proceeding against the Special Master, the Company or any other Special Master and Company Related Party relating to or arising out of this Agreement, or any of the Company Subsidiaries Transactions or any matters forming the basis for such termination (whether at law, in equity, in contract, in tort or otherwise), and upon payment of their respective formerthe Expense Reimbursement Amount pursuant to Section 8.3(b) or Section 8.3(c), current or future officers, directors, partners, stockholders, managers, members or Affiliates none of the Special Master and Company Related Parties shall have any further liability or obligation to the Buyer or any other affected Person relating to or arising out of this Agreement or the transactions contemplated hereby; provided Transactions. The Parties acknowledge and agree that in no event shall the foregoing shall not limit the obligations of Special Master or the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3, the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))Amount.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 1 contract
Sources: Stock Purchase Agreement
Termination Fee and Expense Reimbursement. (a) In Notwithstanding any other provision relating to the event that payment of fees, if after the execution of this Agreement:
(i) Parent shall have terminated this Agreement pursuant to Section 10.1(e);
(ii) the Company shall have breached in any material respect any of its obligations or covenants under Section 6.1 or Section 6.2 and Parent shall have terminated this Agreement pursuant to Section 10.1(c)(B);
(iii) Parent or the Company shall have terminated this Agreement pursuant to Section 10.1(g) where the Board or a committee thereof effected a Change of Recommendation (in accordance with this Agreement) before the Company Meeting was held; or
(iv) in a case where none of (i), (ii) or (iii) above is applicable, a bona fide Acquisition Proposal shall have been made or proposed to the Company or publicly announced, or a Person shall have publicly announced an intention to do so (which has not been publicly withdrawn) and this Agreement is validly subsequently terminated by either the Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i10.1(c)(B) (provided that with respect to Section 8.1(b)(ior 10.1(d) and Section 8.1(c)(i), the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, Parent or the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i10.1(g) and within a period of twelve months from the date of termination of this Agreement: (A) any Shares or Section 8.1(c)(i)) assets are acquired under such Acquisition Proposal (as the same may be amended or the replaced from time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)time), and or (iiB) within twelve an Acquisition Proposal (12as the same may be amended or replaced from time to time) months of such termination is completed, then the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (pay to Parent, within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) five Business Days of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause first to occur of (i), then, on the date of consummation of such transaction(ii) (iii) or (iv) above, the Company shall pay or cause to be paid to Parent amount of $2.75 million (or its designeesthe “Termination Fee”) the Termination Fee by wire transfer of in immediately available funds to an account designated in writing by Parent. For purposes ; provided that in the case of this Section 8.3(a(ii) or (iv), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”.
(b) In the event that where this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii), then, prior to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(c) In the event that this Agreement is had been terminated by Parent pursuant to Section 8.1(c)(ii10.1(c)(B) or 10.1(d), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If 6.3(a) shall be the Company fails amount equal to pay as directed in writing by Parent the Termination Fee due to less the Parent Expense Reimbursement paid or Merger Sub owing pursuant to this Section 8.3 within the time periods specified in this Section 8.3, the 6.3(b).
(b) The Company shall pay the out-of-pocket such amount as is required to reimburse Parent for all reasonable costs and expenses (incurred in connection with the Arrangement, including all reasonable legal fees fees, costs and expenses of outside counsel) its financial, legal, auditing and other professional and other advisors and of all the reasonable expenses whatsoever and howsoever incurred by Parent in connection with the Arrangement up to a maximum amount equal to $1,000,000 (the “Parent Expense Reimbursement”) if Parent terminates this Agreement pursuant to Section 10.1(c), 10.1(d) or 10.1(i) and Parent is not in breach in any actionmaterial respect of its representations, including the filing of any lawsuitwarranties or covenants under this Agreement, taken to collect payment of in which case such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to amount shall be paid until on the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach fifth Business Day following termination of this Agreement.
(ec) If Parent shall pay such amount as is required to reimburse the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the all reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company incurred in connection therewith).
(f) In with the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtainedArrangement, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees reasonable fees, costs and expenses of counselits financial, accountantslegal, investment banking firms auditing and other financial advisors, experts professional and consultants) actually other advisors and all of the reasonable costs and expenses whatsoever and howsoever incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an Arrangement up to a maximum amount not equal to exceed $10,000,000 1,000,000 (the “Company Expense Reimbursement”). Any payment of ) if the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)).
(g) In the event that terminates this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv10.1(b) under circumstances in which and the Requisite Parent Stockholder Vote Company is not obtainedin breach in any material respect of its representations, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred warranties or accrued in connection with this Agreement, the Merger and the other transactions contemplated by covenants under this Agreement, in an which case such amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer paid on the fifth Business Day following termination of same-day funds to the Company (or its designee(s))this Agreement.
Appears in 1 contract
Termination Fee and Expense Reimbursement. (a) In the event that If (x) this Agreement is validly terminated by either the Company or Parent pursuant to (i) Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i7.1(b)(i) (provided that with respect to Section 8.1(b)(iTermination Date) and Section 8.1(c)(i), the Requisite Company Stockholder Vote Minimum Tender Condition has not been obtainedsatisfied at the time of such termination, (ii) Section 7.1(c)(i) (Breach by GFI), (iii) Section 7.1(c)(ii) (Violation of Alternative Proposals) or (iv) Section 7.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (iiy) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter termination, (1) GFI enters into a definitive agreement for to consummate a transaction contemplated by any Takeover Proposal that (regardless of when made and such transaction is subsequently thereafter consummated (within such twelve regardless of when consummated)) or (12)-month period or within six (62) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the GFI consummates a transaction contemplated by any Takeover Proposal in sub-clause (iregardless of when made), thenthen GFI shall pay, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing $27,005,057 (the “Termination Fee”) less the amount, if any, of the Expenses of Parent paid by Parent. For GFI pursuant to Section 7.3(b), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 8.3(a7.3(a), each reference to “20%” or “80%” in the definition of term “Takeover Proposal” shall have the meaning ascribed thereto in Section 5.4(e) (Alternative Proposals), except that all references to 20% shall be deemed changed to be a reference to “50%”.
(b) In the event that If this Agreement is terminated by pursuant to (i) Section 7.1(b)(i) (Termination Date) and the Company Minimum Tender Condition has not been satisfied at the time of such termination, then GFI shall reimburse Parent for all of its reasonable and documented Expenses up to a maximum amount of $7,715,732 within five Business Days of delivery of a reasonable detailed written notice from Parent requesting payment thereof.
(c) If this Agreement is terminated pursuant to Section 8.1(d)(ii)7.1(d)(ii) (Superior Proposal) then GFI shall pay, then, prior to or concurrently with such termination, the Company shall pay or cause to be paid paid, to Parent the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by ParentFee.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge GFI agrees that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated herebythis Agreement, and that, without these agreements, the parties Parent would not enter into this Agreement. Accordingly, and that if GFI fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 7.3 and, in order to obtain such payment, Parent commences a penalty. If suit that results in a judgment against GFI for such amounts, GFI shall pay interest on such amounts from the Company fails to pay as directed in writing by Parent date the Termination Fee payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses Expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreementsuit.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated pursuant to this Article VII, GFI shall reimburse Parent for any portion of the BGC Advance paid by the Company or Parent pursuant to Section 8.1(b)(iii5.14 (BGC Advance) under circumstances in which prior to such termination on the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))terms attached as Exhibit B hereto.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 1 contract
Termination Fee and Expense Reimbursement. (a) In the event that this Agreement is validly terminated by either the Company or Parent pursuant Protective will pay to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i)Dai-ichi, the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (ii) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i), then, on the date of consummation of such transaction, the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated funds, the amounts set forth in writing by Parent. For purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”.9.03
(ba) In the event that if this Agreement is terminated by under the Company pursuant to Section 8.1(d)(ii), then, prior to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
following circumstances (c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) The parties agree it being understood and understand agreed that in no event shall the Company will Protective be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), ):
(i) if Parent receives this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii), then Protective will pay the Termination Fee from by the Company second Business Day following the date of such termination (it being understood that Protective's failure to reaffirm under such circumstances will not be deemed an intentional and material breach of this Agreement);
(ii) if this Agreement is terminated (A) by either Party pursuant to Section 9.01(b)
(i) without a vote of the stockholders of Protective contemplated by this Agreement at the Stockholders Meeting having occurred and, on the End Date, all of the conditions precedent to the Closing (other than the condition precedent set forth in Section 8.01(a)) have been satisfied (or in the case of conditions precedent that by their terms are to be satisfied at the Closing, are capable of being satisfied on the End Date) or (B) pursuant to Section 9.01(b)(iii) and, in any such case, an Acquisition Proposal has been publicly announced or has otherwise become publicly known, or any Person has publicly announced or communicated an intention, whether or not conditional, to make an Acquisition Proposal, at any time after the date of this Agreement and prior to the time of the taking of the vote of the stockholders of Protective at the Stockholders Meeting (or prior to the termination of this Agreement if there has been no Stockholders Meeting), and at such time such Acquisition Proposal or such intent has not been publicly withdrawn or repudiated by such Person, then
(A) Protective will pay the Expense Reimbursement to Dai-ichi by wire transfer of immediately available funds within three Business Days after delivery by Dai-ichi to Protective of a written statement setting forth the amount thereof and attaching applicable documentation; and
(B) if, within 12 months after the date of such termination, Protective either consummates a transaction contemplated by any Acquisition Proposal (including any Acquisition Proposal made after the date of the termination of this Agreement), or enters into a definitive agreement to consummate a transaction contemplated by any Acquisition Proposal and Protective thereafter consummates such Acquisition Proposal (whether or not within such 12-month period), then Protective will pay the Termination Fee by the third Business Day following the date Protective consummates such transaction; provided that, for purposes of this Section 9.03(a)(ii)(B), all references to 15 percent including in the definition of the term "Acquisition Proposal" will be changed to 50 percent; and provided, further, that the amount of any Expense Reimbursement paid to Dai-ichi pursuant to the foregoing clause (A) will be credited against and will reduce the Termination Fee payable pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of 9.03(a)(ii)(B); or
(iii) if this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this is terminated pursuant to Section 8.3(d9.01(d)(ii); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive then Protective will pay the Termination Fee under this Section 8.3on the date, and as a condition to the amount effectiveness, of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge termination.
(b) Protective acknowledges and agrees that the agreements contained in this Section 8.3 9.03 are an integral part of the transactions transaction contemplated hereby, by this Agreement and that, without these agreements, the parties Dai-ichi would not enter into this Agreement. Accordingly, and that if Protective fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 9.03 and, in order to obtain such payment, Dai-ichi commences any Proceeding that results in a penalty. If judgment against Protective for such amounts, Protective will pay interest on such amounts from the Company fails to pay as directed in writing by Parent the Termination Fee date payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York Mellon Corporation in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counselexpenses) incurred by Parent Dai-ichi in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this AgreementProceeding.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)).
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
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Termination Fee and Expense Reimbursement. (a) In the event that Notwithstanding any other provision of this Agreement is validly terminated by either relating to the Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i), the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) payment of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (ii) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i), then, on the date of consummation of such transactionfees, the Company shall pay or cause to be paid to Parent (or its designees) a termination fee in the Termination Fee by wire transfer amount of $600,000 in immediately available funds to an account designated by Parent (the “Specified Termination Fee”) if this Agreement shall have been terminated pursuant to Section 8.2(b), in writing which case payment shall be made within two (2) Business Days of such termination, or a termination fee in the amount of $2,350,000 in immediately available funds to an account designated by Parent. For purposes Parent (the “Termination Fee”), if:
(i) the Company shall have terminated this Agreement pursuant to Section 8.2(f), in which case payment shall be made before or concurrently with such termination and shall be a condition of the effectiveness of such termination;
(ii) Parent and Acquisition Sub shall have terminated this Agreement pursuant to Section 8.2(e), in which case payment shall be made within two (2) Business Days of such termination; or
(iii) this Agreement shall have been terminated pursuant to (x) Section 8.2(d)(A) in circumstances where an Acquisition Proposal is publicly announced and not withdrawn prior to the termination of the Agreement or (y) Section 8.2(g) in circumstances where an Acquisition Proposal is publicly announced and not withdrawn prior to the termination of this Section 8.3(aAgreement, and, in each case of clause (x) or clause (y), each reference within twelve (12) months following the date of such termination, the Company enters into a binding definitive agreement with respect to “20%” the same Acquisition Proposal or “80%” another Acquisition Proposal (other than a confidentiality agreement permitted by Section 6.5(a)), in which case payment shall be made upon the entering into of such agreement; provided that with respect to another Acquisition Proposal, references in the definition of the term “Takeover Acquisition Proposal” to the phrase “20% or more” shall be deemed to be a reference to replaced by the phrase “50%50.1% or more”.
(b) In the event that addition to any Specified Termination Fee or Termination Fee payable under this Section 8, if this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii8.2(b), thenSection 8.2(d), prior to Section 8.2(e) or concurrently with such terminationSection 8.2(f), the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of Expense Reimbursement Amount, in immediately available funds to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) . The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment “Expense Reimbursement Amount” shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent the Termination Fee due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified in this Section 8.3, the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) reasonably incurred by Parent and Acquisition Sub in connection with any actionthis Agreement and the Arrangement, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant up to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) maximum of $800,000, and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income payable within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all the termination of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)).
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 1 contract
Termination Fee and Expense Reimbursement. (a) In the event that If, but only if, (i) this Agreement is validly terminated (A) by either the Company or Parent H&H Group pursuant to Section 8.1(b)(i7.01(e) or (B) by the Company pursuant to Section 7.01(f) and (ii) (A) the Competing Proposal that results in the action or event that forms the basis for any of the terminations contemplated by Section 7.05(a)(i)(A) or Section 8.1(b)(iii7.05(a)(i)(B) is first submitted, provided to or by Parent pursuant made known to Section 8.1(c)(i) the Company Board (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(ior any committee thereof, including the Special Committee), or publicly announced to the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced Company’s stockholders by any Person (including, without limitation, the Company or the Person person making the Takeover Competing Proposal) or “group” , before the Solicitation Period End Date (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder)or, in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) an Exempt Person, before the Cut-Off Date), whether or Section 8.1(c)(i)) not such Competing Proposal is thereafter amended, modified or changed in any manner after the time of the Company Stockholders Meeting Solicitation Period End Date (or, in the case of a termination pursuant to Section 8.1(b)(iii)an Exempt Person, after the Cut-Off Date), and or (iiB) within twelve (12the Adverse Recommendation Change that results in the action or event that forms the basis for the termination contemplated by Section 7.05(a)(i)(A) months of such termination is in connection with an Intervening Event, then the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i)pay, then, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) H&H Group the Solicitation Period Termination Fee by wire transfer of immediately available funds (x) within two (2) business days after the termination date, in the case of Section 7.05(a)(i)(A) or (y) substantially concurrently with such termination, in the case of Section 7.05(a)(i)(B); provided, that if such Solicitation Period Termination Fee is not paid to an account designated in writing by Parent. For purposes H&H Group within two (2) business days following the termination of this Agreement pursuant to Section 8.3(a7.01(f), each reference to “20%” or “80%” in the definition of “Takeover Proposal” such termination shall be deemed to be a reference to “50%”null and void.
(b) In the event that If, but only if, (i) this Agreement is terminated (A) by H&H Group pursuant to Section 7.01(e) (other than under the circumstance described in Section 7.05(a)(ii)(B)), or (B) by the Company pursuant to Section 8.1(d)(ii7.01(f) and (ii) (A) the Competing Proposal that results in the action or event that forms the basis for any of the terminations contemplated by Section 7.05(b)(i)(A) or Section 7.05(b)(i)(B) is first submitted, provided to or made known to the Company Board (or any committee thereof, including the Special Committee), thenor publicly announced to the Company’s stockholders by the person making the Competing Proposal, prior to after the Solicitation Period End Date, or concurrently (B) the Adverse Recommendation Change that results in the action or event that forms the basis for the termination contemplated by Section 7.05(b)(i)(A) is not made in connection with such terminationa Competing Proposal or an Intervening Event (which, for the avoidance of doubt, is not permitted by the Company under the terms of this Agreement), then the Company shall pay pay, or cause to be paid paid, to Parent H&H Group the Post-Solicitation Period Termination Fee by wire transfer of immediately available funds (x) within two (2) business days after the termination date, in the case of Section 7.05(b)(i)(A) or (y) substantially concurrently with such termination, in the case of Section 7.05(b)(i)(B); provided, that if such Post-Solicitation Period Termination Fee is not paid to an account designated in writing by ParentH&H Group within two (2) business days following the termination of this Agreement pursuant to Section 7.01(f), such termination shall be null and void.
(c) In the event that If, but only if, (i) this Agreement is terminated (A) by Parent the Company or H&H Group pursuant to Section 8.1(c)(ii7.01(b)(i) and, at any time after the date of this Agreement, but prior to the Stockholders’ Meeting, a Competing Proposal shall have been publicly announced or been generally made known to the public, or becomes known to the Company Board (other than a Competing Proposal or disclosure of a Competing Proposal by or from Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇, or at the direction or instruction of Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇) and is not finally withdrawn or terminated prior to the Stockholders’ Meeting, or (B) by H&H Group pursuant to Section 7.01(c); provided, that the violation, breach or failure to perform by the Company as contemplated by Section 7.01(c) was a willful violation, breach or failure to perform by the Company, and prior to such willful violation, breach or failure to perform by the Company giving rise to the right of H&H Group to terminate this Agreement pursuant to Section 7.01(c), then a Competing Proposal shall have been publicly announced or been generally made known to the public, or becomes known to the Company shall promptlyBoard (other than a Competing Proposal or disclosure of a Competing Proposal by or from Parent, but Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇, or at the direction or instruction of Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇) and is not finally withdrawn or terminated prior to such willful violation, breach or failure to perform by the Company, and, in no event later than five each of the cases (5A) Business Days and (B) only to the extent the initial Competing Proposal contemplated by clauses (A) or (B) is submitted, provided to or made known to the Company Board (or any committee thereof, including the Special Committee), or publicly announced to the Company’s stockholders or made generally known to the public by the person making the Competing Proposal, before the Solicitation Period End Date (or, in the case of an Exempt Person, before the Cut-Off Date), whether or not such Competing Proposal is thereafter amended, modified or changed in any manner after the Solicitation Period End Date (or, in the case of an Exempt Person, after the Cut-Off Date) and (ii) in any of cases (A) or (B) of Section 7.05(c)(i), within six (6) months after the date of such termination, pay the Company enters into a definitive agreement with respect to or consummates a Competing Proposal made by the same person who made the Competing Proposal contemplated by clauses (A) or (B) of Section 7.05(c)(i), then the Company shall pay, or cause to be paid paid, to Parent H&H Group the Solicitation Period Termination Fee by wire transfer of immediately available funds substantially concurrently with the earlier to an account designated occur of the entry into the definitive agreement in writing connection with such Competing Proposal as contemplated by Parentthis Section 7.05(c) and the consummation of such Competing Proposal as contemplated by Section 7.05(c); provided, that for purposes of this Section 7.05(c), all references to “twenty percent (20%)” in the definition of “Competing Proposal” shall be deemed to be references to “fifty percent (50%)”.
(d) The parties agree and understand that in no event shall If, but only if, (i) this Agreement is terminated (A) by the Company or H&H Group pursuant to Section 7.01(b)(i) and, at any time after the date of this Agreement, but prior to the Stockholders’ Meeting, a Competing Proposal shall have been publicly announced or been generally made known to the public, or becomes known to the Company Board (other than a Competing Proposal or disclosure of a Competing Proposal by or from Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇, or at the direction or instruction of Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇) and is not finally withdrawn or terminated prior to the Stockholders’ Meeting, or (B) by H&H Group pursuant to Section 7.01(c); provided, that the violation, breach or failure to perform by the Company as contemplated by Section 7.01(c) was a willful violation, breach or failure to perform by the Company, and prior to such willful violation, breach or failure to perform by the Company giving rise to the right of H&H Group to terminate this Agreement pursuant to Section 7.01(c), a Competing Proposal shall have been publicly announced or been generally made known to the public, or becomes known to the Company Board (other than a Competing Proposal or disclosure of a Competing Proposal by or from Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇, or at the direction or instruction of Parent, Steel, H&H Acquisition Sub, H&H Group, Sub or any of their respective Affiliates or Representatives, including ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or Mr. ▇▇▇▇ ▇▇▇▇▇▇) and is not finally withdrawn or terminated prior to such willful violation, breach or failure to perform by the Company, in each of the cases (A) and (B) only to the extent the initial Competing Proposal contemplated by clauses (A) or (B) is submitted, provided to or made known to the Company Board (or any committee thereof, including the Special Committee), or publicly announced to the Company’s stockholders or made generally known to the public by the person making the Competing Proposal, after the Solicitation Period End Date and (ii) in any of cases (A) or (B) of Section 7.05(d)(i), within six (6) months after the date of such termination, the Company enters into a definitive agreement with respect to or consummates a Competing Proposal made by the same person who made the Competing Proposal contemplated by clauses (A) or (B) of Section 7.05(d)(i), then the Company shall pay, or cause to be required paid, to pay H&H Group the Post-Solicitation Period Termination Fee on more than one occasion. by wire transfer of immediately available funds substantially concurrently with the earlier to occur of the entry into the definitive agreement in connection with such Competing Proposal as contemplated by this Section 7.05(d) and the consummation of such Competing Proposal as contemplated by Section 7.05(d); provided, that for purposes of this Section 7.05(d), all references to “twenty percent (20%)” in the definition of “Competing Proposal” shall be deemed to be references to “fifty percent (50%)”.
(e) Notwithstanding anything to the contrary set forth in this Agreement but subject to Section 8.3(f)Agreement, (i) if Parent receives the acceptance by H&H Group of any Termination Fee from due under Section 7.05 shall constitute acceptance by Parent, H&H Acquisition Sub, H&H Group and Sub of the Company pursuant to validity of any termination of this Agreement and acceptance by H&H Group of any Termination Fee due under Section 8.3, such payment 7.05 shall be constitute the sole and exclusive remedy of Parent Parent, H&H Acquisition Sub, H&H Group and Merger Sub against the Company and the Company its Subsidiaries and any of their respective former, current or future officers, directors, general or limited partners, stockholders, members, managers, members directors, officers, employees, agents, affiliates or Affiliates assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder, and upon payment of such amount, none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that . Notwithstanding anything to the foregoing shall not limit the obligations of the Company contrary set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from Agreement, in no event shall the Company in respect of be required to pay any breach Termination Fee on more than one occasion or be required to pay both the Solicitation Period Termination Fee and the Post-Solicitation Period Termination Fee. If a person is designated by Parent, H&H Acquisition Sub, H&H Group or Sub to receive any Termination Fee when payable pursuant to the terms of this Agreement, and thereafter Parent is entitled then, if paid to receive the Termination Fee under this Section 8.3such designee, the amount of such Termination Fee shall be reduced by deemed paid pursuant to the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches terms of this Agreement. The .
(f) Each of the parties acknowledge that the agreements contained in this Section 8.3 7.05 are an integral part of the transactions contemplated hereby, by this Agreement and that, that without these agreements, Parent, H&H Acquisition Sub, H&H Group, Sub and the parties Company would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to timely pay as directed in writing by Parent the Termination Fee any amounts due to Parent or Merger Sub H&H Group pursuant to this Section 8.3 within the time periods specified in this Section 8.37.05, the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreement.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, H&H Group for all of their out-of-pocket fees costs and expenses actually incurred or accrued by Parent and H&H Group (including all reasonable fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with the collection under and enforcement of this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))Section 7.05.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
Appears in 1 contract
Termination Fee and Expense Reimbursement. (a) In the event that this Agreement is validly terminated by either the Company or Parent pursuant Protective will pay to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i) (provided that with respect to Section 8.1(b)(i) and Section 8.1(c)(i)Dai-ichi, the Requisite Company Stockholder Vote has not been obtained) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (ii) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter into a definitive agreement for a Takeover Proposal that is subsequently consummated (within such twelve (12)-month period or within six (6) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the Takeover Proposal in sub-clause (i), then, on the date of consummation of such transaction, the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated funds, the amounts set forth in writing by Parent. For purposes of this Section 8.3(a), each reference to “20%” or “80%” in the definition of “Takeover Proposal” shall be deemed to be a reference to “50%”.9.03
(ba) In the event that if this Agreement is terminated by under the Company pursuant to Section 8.1(d)(ii), then, prior to or concurrently with such termination, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
following circumstances (c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(d) The parties agree it being understood and understand agreed that in no event shall the Company will Protective be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), ):
(i) if Parent receives this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(c)(iii), then Protective will pay the Termination Fee from by the Company second Business Day following the date of such termination (it being understood that Protective’s failure to reaffirm under such circumstances will not be deemed an intentional and material breach of this Agreement);
(ii) if this Agreement is terminated (A) by either Party pursuant to Section 9.01(b)
(i) without a vote of the stockholders of Protective contemplated by this Agreement at the Stockholders Meeting having occurred and, on the End Date, all of the conditions precedent to the Closing (other than the condition precedent set forth in Section 8.01(a)) have been satisfied (or in the case of conditions precedent that by their terms are to be satisfied at the Closing, are capable of being satisfied on the End Date) or (B) pursuant to Section 9.01(b)(iii) and, in any such case, an Acquisition Proposal has been publicly announced or has otherwise become publicly known, or any Person has publicly announced or communicated an intention, whether or not conditional, to make an Acquisition Proposal, at any time after the date of this Agreement and prior to the time of the taking of the vote of the stockholders of Protective at the Stockholders Meeting (or prior to the termination of this Agreement if there has been no Stockholders Meeting), and at such time such Acquisition Proposal or such intent has not been publicly withdrawn or repudiated by such Person, then
(A) Protective will pay the Expense Reimbursement to Dai-ichi by wire transfer of immediately available funds within three Business Days after delivery by Dai-ichi to Protective of a written statement setting forth the amount thereof and attaching applicable documentation; and
(B) if, within 12 months after the date of such termination, Protective either consummates a transaction contemplated by any Acquisition Proposal (including any Acquisition Proposal made after the date of the termination of this Agreement), or enters into a definitive agreement to consummate a transaction contemplated by any Acquisition Proposal and Protective thereafter consummates such Acquisition Proposal (whether or not within such 12-month period), then Protective will pay the Termination Fee by the third Business Day following the date Protective consummates such transaction; provided that, for purposes of this Section 9.03(a)(ii)(B), all references to 15 percent including in the definition of the term “Acquisition Proposal” will be changed to 50 percent; and provided, further, that the amount of any Expense Reimbursement paid to Dai-ichi pursuant to the foregoing clause (A) will be credited against and will reduce the Termination Fee payable pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of 9.03(a)(ii)(B); or
(iii) if this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this is terminated pursuant to Section 8.3(d9.01(d)(ii); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive then Protective will pay the Termination Fee under this Section 8.3on the date, and as a condition to the amount effectiveness, of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge termination.
(b) Protective acknowledges and agrees that the agreements contained in this Section 8.3 9.03 are an integral part of the transactions transaction contemplated hereby, by this Agreement and that, without these agreements, the parties Dai-ichi would not enter into this Agreement. Accordingly, and that if Protective fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 9.03 and, in order to obtain such payment, Dai-ichi commences any Proceeding that results in a penalty. If judgment against Protective for such amounts, Protective will pay interest on such amounts from the Company fails to pay as directed in writing by Parent the Termination Fee date payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York Mellon Corporation in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counselexpenses) incurred by Parent Dai-ichi in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this AgreementProceeding.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) under circumstances in which the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s)).
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
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Termination Fee and Expense Reimbursement. (a) In the event that If (x) this Agreement is validly terminated by either the Company or Parent pursuant to (i) Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(i7.1(b)(i) (provided that with respect to Section 8.1(b)(iTermination Date) and Section 8.1(c)(i), the Requisite Company Stockholder Vote Minimum Tender Condition has not been obtainedsatisfied at the time of such termination, (ii) Section 7.1(c)(i) (Breach by GFI), (iii) Section 7.1(c)(ii) (Violation of Alternative Proposals) or (iv) Section 7.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (i) a Takeover Proposal was publicly proposed or announced by any Person (including, without limitation, the Company or the Person making the Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder), in each case after May 4, 2021 and not withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 8.1(b)(i) or Section 8.1(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)), and (iiy) within twelve (12) months of such termination the Company shall consummate a Takeover Proposal or enter termination, (1) GFI enters into a definitive agreement for to consummate a transaction contemplated by any Takeover Proposal that (regardless of when made and such transaction is subsequently thereafter consummated (within such twelve regardless of when consummated)) or (12)-month period or within six (62) months thereafter) with the Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that made the GFI consummates a transaction contemplated by any Takeover Proposal in sub-clause (iregardless of when made), thenthen GFI shall pay, on the date of consummation of such transaction, the Company shall pay or cause to be paid paid, to Parent (or its designees) the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing $27,447,763 (the “Termination Fee”) less the amount, if any, of the Expenses of Parent paid by Parent. For GFI pursuant to Section 7.3(b), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 8.3(a7.3(a), each reference to “20%” or “80%” in the definition of term “Takeover Proposal” shall have the meaning ascribed thereto in Section 5.4(e) (Alternative Proposals), except that all references to 20% shall be deemed changed to be a reference to “50%”.
(b) In the event that If this Agreement is terminated by pursuant to (i) Section 7.1(b)(i) (Termination Date) and the Company Minimum Tender Condition has not been satisfied at the time of such termination, then GFI shall reimburse Parent for all of its reasonable and documented Expenses up to a maximum amount of $7,842,219 within five Business Days of delivery of a reasonable detailed written notice from Parent requesting payment thereof.
(c) If this Agreement is terminated pursuant to Section 8.1(d)(ii)7.1(d)(ii) (Superior Proposal) then GFI shall pay, then, prior to or concurrently with such termination, the Company shall pay or cause to be paid paid, to Parent the Termination Fee Parent, by wire transfer of immediately available funds funds, an amount equal to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii), then the Company shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by ParentFee.
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement but subject to Section 8.3(f), (i) if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates and none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided that the foregoing shall not limit the obligations of the Company set forth in the last sentence of this Section 8.3(d); and (ii) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge GFI agrees that the agreements contained in this Section 8.3 7.3 are an integral part of the transactions contemplated herebythis Agreement, and that, without these agreements, the parties Parent would not enter into this Agreement. Accordingly, and that if GFI fails promptly to pay any amounts payable pursuant to due under this Section 8.3 do not constitute 7.3 and, in order to obtain such payment, Parent commences a penalty. If suit that results in a judgment against GFI for such amounts, GFI shall pay interest on such amounts from the Company fails to pay as directed in writing by Parent date the Termination Fee payment of such amounts was due to Parent or Merger Sub pursuant to this Section 8.3 within the time periods specified date of actual payment at the prime rate of the Bank of New York in this Section 8.3effect on the date such payment was due, together with the Company shall pay the out-of-pocket costs and expenses (including reasonable legal fees and expenses Expenses of outside counsel) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding the foregoing, nothing herein shall relieve any party from any liability or damages resulting from any fraud or Willful and Material Breach of this Agreementsuit.
(e) If the Company becomes obligated to pay the Termination Fee under this Section 8.3, then, if requested by Parent, the Company shall deposit into escrow an amount in cash equal to the Termination Fee with an escrow agent selected by the Company that is reasonably acceptable to Parent pursuant to a written escrow agreement (the “Escrow Agreement”) reflecting the terms set forth in this Section 8.3(e) and otherwise reasonably acceptable to the escrow agent. The Escrow Agreement shall provide that the Termination Fee in escrow or the applicable portion thereof shall be released to Parent on an annual basis based upon the delivery by Parent to the escrow agent of any one (or a combination) of the following: (i) a letter from Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of Parent determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(I) or 856(c)(3)(A)-(I) of the Code (such income, “Qualifying REIT Income”), in which case the escrow agent shall release to Parent such maximum amount stated in the accountant’s letter; (ii) a letter from Parent’s counsel indicating that Parent received a private letter ruling from the IRS holding that the receipt by Parent of the Termination Fee would either constitute Qualifying REIT Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee; or (iii) a letter from Parent’s counsel indicating that Parent has received a tax opinion from its outside counsel or accountant, respectively, to the effect that the receipt by Parent of the Termination Fee should either constitute Qualifying REIT Income or should be excluded from gross income within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agent shall release to Parent the remainder of the Termination Fee. The Escrow Agreement shall further provide that, at the end of the third calendar year beginning after the date on which the Company’s obligation to pay the Termination Fee arose (or earlier if directed by Parent), any remaining amount then being held in escrow by the escrow agent shall be disbursed to the Company and, in the event the Termination Fee has not by then been paid in full, such unpaid portion shall never be due. The parties agree to cooperate in good faith to amend this Section 8.3(e) at the reasonable request of Parent in order to (A) maximize the portion of the applicable Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (B) improve Parent’s chances of securing the favorable private letter ruling from the IRS described in this Section 8.3(e) or (C) assist Parent in obtaining the favorable tax opinion from its outside counsel or accountant described in this Section 8.3(e). The Escrow Agreement shall provide that Parent shall bear all costs and expenses under the Escrow Agreement. The Company shall not be a party to the Escrow Agreement and shall not bear any liability, cost or expense resulting directly or indirectly from the Escrow Agreement (other than any Taxes imposed on the Company in connection therewith).
(f) In the event that this Agreement is terminated pursuant to this Article VII, GFI shall reimburse Parent for any portion of the BGC Advance paid by the Company or Parent pursuant to Section 8.1(b)(iii5.14 (BGC Advance) under circumstances in which prior to such termination on the Requisite Stockholder Vote is not obtained, the Company shall reimburse Parent and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Company Expense Reimbursement”). Any payment of the Company Expense Reimbursement shall be made by wire transfer of same-day funds to Parent (or its designee(s))terms attached as Exhibit B hereto.
(g) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iv) under circumstances in which the Requisite Parent Stockholder Vote is not obtained, Parent shall reimburse the Company and its Affiliates, no later than two (2) Business Days after submission of reasonable documentation therefor, for all of their out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, in an amount not to exceed $10,000,000 (the “Parent Expense Reimbursement”). Any payment of the Parent Expense Reimbursement shall be made by wire transfer of same-day funds to the Company (or its designee(s)).
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