Termination Fees. (a) In the event that this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%. (b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company. (c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 3 contracts
Sources: Merger Agreement (Ulticom, Inc), Merger Agreement (Ulticom, Inc), Merger Agreement (Ulticom, Inc)
Termination Fees. (a) [Reserved].
(b) In the event that this Agreement is terminated: that:
(i) by Parent (1) This Agreement shall have been terminated pursuant to (x) Section 7.1(d)(i8.1(b)(i) [End Date], (y) Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval] or (z) Section 8.1(d)(ii) [Company Breach of Reps and Warranties or Covenants], (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the earlier of (x) the Company Meeting and (y) the termination of this Agreement in the circumstances set forth in clause (i)(1) above and (3) within twelve (12) months of such termination, any transaction constituting any Company Alternative Proposal is consummated or an agreement providing for any Company Alternative Proposal is executed; provided, that, for purposes of this clause (i), the references to “20% or more” in the definition of “Company Alternative Proposal” shall be deemed to be references to “50% or more”;
(ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the The Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates have terminated this Agreement pursuant to Section 7.1(d)(ii8.1(c)(ii) due to an intentional breach by the [Company and Superior Proposal];
(yiii) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i8.1(d)(i) [Company Change of Recommendation]; or
(iv) This Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(iii) [Failure to Obtain Company Stockholder Approval]; then, the Company shall, (A) in the case of clause (i) above, upon the earlier of (x) the execution of an agreement providing for any Company Alternative Proposal and (y) the consummation of any Company Alternative Proposal, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of clause (ii) above, concurrently with, and as a condition to the effectiveness of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the Company Termination Fee; and (D) in the case of clause (iv) above, within two (2) Business Days of such termination, pay (or cause to be paid) Parent (or one or more of its designees) the No Vote Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee or the No Vote Termination Fee on more than one occasion and, in the event the Company Termination Fee becomes payable to Parent following payment of the No Vote Termination Fee, the amount of the No Vote Termination Fee actually paid shall be credited against the Company Termination Fee. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee or the No Vote Termination Fee in accordance with this Section 8.3(b), the Company shall pay have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud or, to the extent the Company Termination Fee promptlybecomes payable to Parent following payment of the No Vote Termination Fee, but in no event more than two any obligation to pay (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed or cause to be references paid) an amount equal to 50%the Company Termination Fee less the No Vote Termination Fee.
(bc) In the event that this Agreement is terminated by Parent or If the Company fails to timely pay an amount due pursuant to this Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction8.3, the Company shall pay Parent interest on such amount at the Company Termination Fee less any Expense Reimbursement previously paid by prime rate as published in The Wall Street Journal in effect on the Companydate such payment was required to be made plus 3% per annum through the date such payment is actually received.
(cd) Each of the Company, Parent and Merger Sub acknowledges The parties acknowledge that the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when duetransactions contemplated by this Agreement and that, without these agreements, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of parties would not enter into this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Noble Corp PLC)
Termination Fees. (a) In Section 9.2(b) of the event that Agreement is hereby amended to read in its entirety as follows: "
(b) If this Agreement is terminated: (i) by Parent the Acquiror pursuant to Section 7.1(d)(iclause (i) or of Subsection 9.1(i) hereof (except if circumstances exist that would allow the Company to terminate this Agreement pursuant to Subsection 9.1(c) hereof as a result of a Material Adverse Effect on the Acquiror); (ii) by the Company Acquiror pursuant to Section 7.1(c)(i), then, Subsection 9.1(i) hereof under any circumstances other than those described in any such event under clause (i) of this Subsection 9.2(b); (iii) by Acquiror or Company pursuant to Subsection 9.1(f) hereof because of the failure to obtain the required approval from the Company stockholders and at the time of such termination or prior to the Company Stockholders' Meeting there shall have been an Acquisition Proposal (whether or not such offer, proposal, announcement or agreement shall have been rejected or shall have been withdrawn prior to the time of such termination or of the Company Stockholders' Meeting); or (iiiv) by Acquiror as a result of this Company's material breach of Section 7.3(a)7.3 or Subsection 7.1(a) hereof, the Company shall promptly pay to Parent, Acquiror or the Company by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing transfer of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more same day funds not later than two (2) business days Business Days after the date of receipt such termination a termination fee of Parent’s termination notice. For purposes of this Section 7.3$4,528,000 (the "Termination Fee"), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2provided, except however, that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that if this Agreement is terminated by Parent Acquiror or the Company pursuant to Section 7.1(b)(iiiSubsection 9.1(f) hereof under the circumstances described in Subsection 9.2(b)(iii) hereof, and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) at the time of such termination the stockholders of the Acquiror shall have been satisfied or waived (other than those conditions that by their nature are failed to be satisfied at approve the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement issuance of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company Acquiror Common Stock pursuant to this Section 7.3Agreement, the Acquiror shall not be entitled to the Termination Fee."
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Unitrode Corp), Agreement and Plan of Merger (Unitrode Corp), Agreement and Plan of Merger (Unitrode Corp)
Termination Fees. (a) In If, but only if, the event that this Agreement is terminated: terminated by:
(i) either Parent or the Company pursuant to Section 7.1(b)(i) or by Parent pursuant to Section 7.1(d)(i) or and (iiA) by a Competing Proposal has been made to the Company pursuant after the date hereof and has not been withdrawn prior to Section 7.1(c)(i)the termination of this Agreement, thenand (B) within twelve (12) months after the termination of this Agreement, in any the Company (1) enters into a definitive agreement for the consummation of a Competing Proposal and such event under clause Competing Proposal is subsequently consummated (iregardless of whether such consummation occurs within the twelve (12) month period) or (ii2) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, consummates a Takeover Proposal has been madeCompeting Proposal, then the Company shall pay pay, or cause to be paid, to Parent the Company Termination Fee at concurrently with the closing consummation of the such transaction pursuant to the Takeover Proposal; arising from such Competing Proposal (provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.37.3(a)(i), the term references to “Takeover Proposaltwenty percent (20%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) the Company pursuant to Section 7.1(c)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee concurrently with such termination;
(iii) Parent pursuant to Section 7.1(d)(ii) or Section 7.1(d)(iii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee not later than the second (2nd) Business Day following such termination; or
(iv) the Company pursuant to Section 7.1(c)(v), and within twelve (12) months after the termination of this Agreement, the Company (1) enters into a definitive agreement for the consummation of a Competing Proposal and such Competing Proposal is subsequently consummated (regardless of whether such consummation occurs within the twelve (12) month period) or (2) consummates a Competing Proposal, then the Company shall pay, or cause to be paid, to Parent the Termination Fee concurrently with the consummation of such transaction arising from such Competing Proposal (provided, however, that for purposes of this Section 7.3(a)(iv), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”).
(b) In Notwithstanding anything to the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions contrary set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)this Agreement, the Company parties agree that in no event shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant or Parent be required to Section 7.1(b)(iii), and pay the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyon more than one occasion.
(c) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the Transactions. In , (ii) the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when dueis not a penalty but a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of parties would not enter into this Section 7.3. If Agreement; accordingly, if the Company fails to promptly make timely pay any payment required under amount due pursuant to this Section 7.3 and and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company or its successors for paymentthe payment of any amount set forth in this Section 7.3, the Company or its successors shall indemnify pay Parent for its fees reasonable, documented out-of-pocket costs and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above five percent (5%) plus the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Norcraft Companies, Inc.), Merger Agreement (Fortune Brands Home & Security, Inc.)
Termination Fees. (a) In the event The parties hereto agree that if this Agreement is terminated: terminated by the Acquirors pursuant to Section 8.1(b) or by the Company pursuant to Section 8.1(e), then the Company shall pay to the Acquirors, in such amounts and to such accounts as shall be directed by the Acquirors, prior to or concurrently with such termination, in the case of a termination by the Company, or within two (2) Business Days thereafter, in the case of a termination by the Acquirors, the Termination Fee.
(b) The parties hereto agree that if this Agreement is terminated either (i) by Parent the Company, on the one hand, or the Acquirors, on the other hand, (A) pursuant to Section 7.1(d)(i8.1(c), if the relevant Order permanently restraining, enjoining or otherwise prohibiting or Law preventing or making illegal the consummation of the Merger relates to a failure to obtain the necessary clearances under the HSR Act or any Requisite Gaming Approval or (B) pursuant to Section 8.1(d) as a result of the failure to satisfy the conditions set forth in Section 7.1(d) or Section 7.1(e), or (ii) by the Company pursuant to Section 7.1(c)(i8.1(g), then, in any such event under clause (i) or (ii) of this Section 7.3(a), then the Company Acquirors shall jointly and severally be liable for and shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any or concurrently with such termination, in the case of a Takeover Proposal has been madetermination by the Acquirors, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs or within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3Business Days thereafter, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event case of any such a termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Reverse Termination Fee less any Expense Reimbursement previously paid by the CompanyFee.
(c) All payments under this Section 8.3 shall be made by wire transfer of immediately available funds to such accounts as shall be designated in writing by the Acquirors or the Company, as applicable, or in the absence of such designation, an account established for the sole benefit of the Acquirors in the event of the payment of the Termination Fee or an account established for the sole benefit of the Company in the event of the payment of the Reverse Termination Fee.
(d) Each of the Company, Parent and Merger Sub parties acknowledges that the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement and the Real Estate Purchase Agreement and that without these agreements, the Acquirors, Merger Sub and the Company would not enter into this Agreement or, as applicable, the Real Estate Purchase Agreement. For the avoidance of doubt, in no event shall fail the Company be required to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company occasion or the Acquirors be required to pay the Reverse Termination Fee on more than one occasion.
(e) The parties hereby agree that any and all remedies, including, but not limited to, the payment of the Termination Fee or the Reverse Termination Fee, provided in this Agreement will be payable deemed cumulative with, and not exclusive of, any other remedy conferred hereby, or at Law or in equity upon such party, and the exercise by a party of any one remedy will not preclude the Company pursuant to this Section 7.3exercise of any other remedy.
Appears in 3 contracts
Sources: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Termination Fees. (a) In The Company shall pay the event that Termination Fee to Parent if the Agreement is terminated as follows:
(i) If this Agreement is terminated: terminated by either the Company or Parent pursuant to Section 8.1(b)(iii) (iRequisite Stockholder Approval) at a time when this Agreement was terminable by Parent pursuant to Section 7.1(d)(i8.1(d)(ii) (Adverse Recommendation Change) or terminated by Parent pursuant to Section 8.1(d)(ii) (Adverse Recommendation Change), then the Company shall pay the Termination Fee on the second (2nd) Business Day following such termination;
(ii) If this Agreement is terminated by the Company pursuant to Section 7.1(c)(i8.1(c)(ii) (Superior Proposal), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Termination Fee concurrently with such termination; and
(iii) (x) If this Agreement is terminated (A) pursuant to Section 8.1(b)(iii) (Requisite Stockholder Vote), (B) pursuant to Section 8.1(d)(i) (Company Breach) or (C) pursuant to Section 8.1(b)(i) (Termination Date), (y) in any such case a Competing Proposal shall have been publicly announced or, in the case of a termination pursuant to clause (B) or (C), otherwise communicated to the Company Termination Fee at Board (and not withdrawn) after the closing date of this Agreement and prior to the date of the transaction pursuant to Stockholders’ Meeting, in the Takeover Proposal; providedcase of clause (A), that such closing occurs or the date of termination, in the case of clauses (B) and (C), and (z) if within 12 twelve (12) months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i)date of such termination, a transaction in respect of such Competing Proposal is consummated or the Company enters into a definitive agreement in respect of such Competing Proposal, then the Company shall pay the Company Termination Fee promptly, but in no event more than two on the second (22nd) business days after Business Day following the date of receipt of Parent’s termination notice. For the Company enters into such transaction (provided, that solely for purposes of this Section 7.38.3(a)(iii), the term “Takeover Competing Proposal” shall have the meaning assigned to such term ascribed thereto in Section 5.26.5(g)(i), except that all references therein to 20% shall be deemed to be references changed to 50%).
(iv) Any Termination Fee due by the Company under this Section 8.3(a) shall be paid by the Company by wire transfer of immediately available funds (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) In Parent shall pay the event that this Reverse Termination Fee to the Company on the second (2nd) Business Day following such termination if (i) the Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b)(i) (Termination Date) or Section 8.1(b)(ii) (Legal Restraint) (with respect to Section 8.1(b)(ii), solely to the extent the applicable Law or Order arises under the HSR Act or any other Antitrust Law or Foreign Investment Law) and (ii) all other of the conditions to Closing set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) VII shall have been satisfied or validly waived (other than except for those conditions that by their nature are to terms must be satisfied at the Closing; provided that such conditions would have been so satisfied if the Closing would have occurred on or before the date of termination), other than the Company conditions to Closing set forth in Section 7.1(b) or Section 7.1(c) (with respect to Section 7.1(c), solely to the extent that such Law or Order arises under the HSR Act or any other Antitrust Law or Foreign Investment Law). The Reverse Termination Fee due by Parent under this Section 8.3(b) shall pay to Parent, be paid by Parent by wire transfer, an amount which transfer of immediately available funds (it being understood that in no event shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including Parent be required to pay the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Reverse Termination Fee less any Expense Reimbursement previously paid by the Companyon more than one occasion).
(c) Each Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.9, (x) Parent’s receipt in full of the Termination Fee pursuant to Section 8.3(a), in circumstances where the Termination Fee is owed pursuant to Section 8.3(a), shall constitute the sole and exclusive monetary remedy of Parent and Merger Subs against the Company and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of any breach or failure to perform hereunder giving rise to such termination, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby with respect to such breach or failure to perform; and (y) the Company’s receipt in full of the Reverse Termination Fee pursuant to Section 8.3(b), in circumstances where the Reverse Termination Fee is owed pursuant to Section 8.3(b), shall constitute the sole and exclusive monetary remedy of the Company and its Subsidiaries against Parent and Merger Subs and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages suffered as a result of any breach or failure to perform hereunder giving rise to such termination, and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby with respect to such breach or failure to perform; provided, further, that notwithstanding the foregoing, the Company, Parent and Merger Sub Subs shall be entitled to pursue an injunction, or other appropriate form of specific performance or equitable relief, solely as provided in Section 9.9.
(d) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 7.3 8.3 are an integral part of Transactionsthe transactions contemplated by this Agreement, (ii) the Termination Fee and Reverse Termination Fee are not penalties, but are liquidated damages, in a reasonable amount that will compensate Parent or the Company, as applicable, in the circumstances in which such fees are payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would not enter into this Agreement. In the event that Accordingly, if the Company or Parent, as applicable, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent or the Company, as applicable, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, then Parent or the Company, as applicable, shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable other party its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above five percent (5%) plus the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Matterport, Inc./De), Merger Agreement (Costar Group, Inc.), Merger Agreement (Matterport, Inc./De)
Termination Fees. (a) In the event that this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii10.01(d) and: (i) at or prior to the time of such termination an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made; and (ii) within 12 months after the date of any such termination, the Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or any Acquisition Proposal is consummated (regardless of whether it is the same Acquisition Proposal), then the Company shall pay, or cause to be paid, to Parent, in cash at the earlier of the time such transaction is consummated or the time such definitive agreement is executed, a non-refundable fee in the amount of $20,625,000 (the “Termination Fee”); provided, however, for purposes of clause (ii) above, all references to “15%” in the definition of Acquisition Proposal shall be deemed to be references to “50%.”
(b) If this Agreement is terminated by: (i) Parent pursuant to Section 10.01(f); (ii) by the Company pursuant to Section 10.01(g); or (iii) by the Company pursuant to Section 10.01(d) and all other conditions the Company Board or any committee thereof made a Company Adverse Recommendation Change, then in each case, the Company shall pay to Parent the Termination Fee. In the case of termination of this Agreement in the manner set forth in Article VI clauses (excluding i) or (iii) of this Section 6.1(d10.03(b), the Termination Fee shall be paid by or on behalf of the Company within two (2) Business Days after such termination; and in the case of termination of this Agreement in the manner set forth in clause (ii) of this Section 6.2(d10.03(b), the Termination Fee shall be paid by the Company immediately prior to or concurrently with such termination.
(c) shall have If this Agreement is terminated by:
(i) Parent pursuant to Section 10.01(d) and: (A) at the time of such termination, each of the Offer Conditions has been satisfied or waived in accordance with the terms of this Agreement (other than (1) those conditions Offer Conditions that by their nature are to be satisfied immediately prior to the consummation of the Offer, but provided that those Offer Conditions would be satisfied if the time of the consummation of the Offer were the time of such termination, and (2) the condition set forth in clause (i) and/or (k) of Annex I); (B) at the Closing)time of such termination, the Company shall pay Financing is not available to Parent, by wire transfer, an amount which shall not exceed $600,000 Parent and which shall represent reimbursement Merger Sub; and (C) the failure of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and to receive the Transactions (such amount, Financing or the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event unavailability thereof is not attributable to a breach of any such termination by covenant or obligation of the Company, or Company contained in this Agreement; or
(ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), 10.01(e) and: (A) Merger Sub’s failure to accept for payment and pay for the Shares in accordance with Section 2.01 within three (3) Business Days following delivery of the written notice required by Section 10.01(e)(ii) is not attributable to a breach of any covenant or obligation of the Company consummates a transaction contained in this Agreement; and (B) the Company shall have given Parent written notice at least three (3) Business Days prior to termination stating the Company’s intention to terminate this Agreement pursuant to any Takeover Proposal Section 10.01(e) and its claims pursuant to this Section 10.03(c); then Parent shall pay to the Company, a non-refundable fee in the amount of $35,750,000 (the “Reverse Termination Fee”) at the time of such termination (in the case of Section 10.03(c)(i)) or within 12 months two (2) Business Days after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid if this Agreement is terminated by the Company.
(cd) Each of the Company, Company and Parent acknowledges and Merger Sub acknowledges agrees that (i) the agreements contained in this Section 7.3 10.03, are an integral part of the Transactions. In the event that , (ii) without these agreements, Parent, Merger Sub and the Company would not have entered into this Agreement and (iii) any amount payable pursuant to this Section 10.03 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, on the one hand, or the Company, on the other hand, in the circumstances in which such amount is payable. The Parties acknowledge and agree that in no event shall fail the Company or Parent be required to pay the Expense Reimbursement Termination Fee or Reverse Termination Fee, respectively, on more than one occasion. If: (i) the Company Termination Fee fails to pay when duedue any amount payable under this Section 10.03, then: (A) the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 10.03; and (B) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to 300 basis points over the “prime rate” (as reported by Bloomberg L.P. on the date such overdue amount was originally required to be paid); and (ii) Parent fails to pay when due any amount payable under this Section 10.03, then: (A) Parent shall reimburse the Company for all costs and expenses (including fees and disbursements of counsel) incurred or accrued in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 10.03; and (B) Parent shall pay to the Company interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the Company in full) at a rate per annum equal to 300 basis points over the “prime rate” (as reported in by Bloomberg L.P. on the date such overdue amount was originally required to be paid).
(e) Notwithstanding anything to the contrary contained in this Agreement, except in the case of a willful and material breach by the Company, Parent or Merger Sub (including reasonable expenses of counseland subject to Section 10.03(d)), (i) in connection with if this Agreement is terminated under circumstances where the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee or the Reverse Termination Fee would be payable by the Company pursuant to this Section 7.310.03, the payment by the Company or Parent of such Termination Fee or Reverse Termination Fee, as applicable, shall be the sole and exclusive remedy of Parent and its Related Persons, and the Company and its Related Persons, respectively, against the Company or Parent and their respective Representatives and Affiliates, as applicable, for (A) any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement (including relating to the Financing), (ii) in no event will Parent or any other Person being paid the Termination Fee, or the Company or any other Person being paid the Reverse Termination Fee, seek to recover any other money damages or seek any other remedy (including any remedy for specific performance, except solely in compliance with Section 11.11) based on a claim in law or equity with respect to, (A) any loss suffered, directly or indirectly, as a result of the failure of the Merger or the Offer to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement (including relating to the Financing), and (iii) upon payment of any Termination Fee or Reverse Termination Fee in accordance with this Section 10.03, none of the Company or any Affiliates or Representatives of the Company, in the case of the Termination Fee, and none of Parent or any Affiliates or Representatives of Parent, in the case of the Reverse Termination Fee, shall have any further liability or obligation to another Party relating to or arising out of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)
Termination Fees. (a) In Notwithstanding any provision in this Agreement to the contrary:
(i) in the event that (A) prior to the termination of this Agreement, any Alternative Proposal (substituting 50% for the 10% threshold set forth in the definition of Alternative Proposal) which could or could reasonably be expected to result in a transaction as favorable or more favorable to the holders of Company Common Stock (other than the Participating Holders) than the transactions provided for in this Agreement at such time as the bona fide intention of any person to make such Alternative Proposal is publicly proposed or publicly disclosed or otherwise made known to the Company prior to the time of such termination, (B) this Agreement is terminated: (i) terminated by Parent or the Company pursuant to Section 7.1(b), by Parent or the Company pursuant to Section 7.1(d), or by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i7.1(f), thenand (C) concurrently with or within nine (9) months after such termination, in any such event under clause (i) or (ii) of this Section 7.3(a)definitive agreement providing for an Alternative Proposal shall have been entered into, the Company shall pay to Parent, by wire transfer, an amount equal to Holdings a fee of $1,300,000 25,000,000 in cash (the “Company Termination Fee”). If (x) ; provided, no Company Termination Fee shall be payable if Holdings has previously paid the Parent terminates this Agreement Termination Fee pursuant to Section 7.1(d)(ii7.1(b) due to an intentional breach or Section 7.2(b);
(ii) in the event that this Agreement is terminated by the Company and (y) prior pursuant to any Section 7.1(g), on the date of execution of a definitive agreement with respect to such terminationSuperior Proposal, a Takeover Proposal has been made, then the Company shall pay Parent to Holdings the Company Termination Fee at Fee;
(iii) in the closing of the transaction pursuant to the Takeover Proposal; provided, event that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement is terminated by Parent pursuant to Section 7.1(d)(i7.1(i), the Company shall pay the Company Termination Fee promptlyto Holdings no later than the second business day following the day of such termination;
(iv) in the event that this Agreement is terminated by Parent pursuant to Section 7.1(f) (regardless of whether Parent is entitled to payment pursuant to Section 7.2(a)(i)), but by the Company pursuant to Section 7.1(g), by either party pursuant to Section 7.1(d), or by Parent pursuant to Section 7.1(i), the Company shall pay to Holdings, upon termination, an amount in cash equal to the sum of Parent’s and Merger Sub’s documented out-of-pocket fees and expenses reasonably incurred by it in connection with this Agreement and the transactions contemplated by this Agreement in an aggregate amount not to exceed $3,000,000 (the “Company Expense Reimbursement”); provided, however, that the existence of circumstances which could require the Company Termination Fee to become subsequently payable by the Company pursuant to Section 7.2(a)(i) shall not relieve the Company of its obligation to pay the Company Expense Reimbursement pursuant to this Section 7.2(a)(iv); and, provided, further, that the payment by the Company of the Company Expense Reimbursement pursuant to this Section 7.2(a)(iv) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee pursuant to Section 7.2(a)(i). The Company Termination Fee and the Company Expense Reimbursement shall be paid by wire transfer of same day funds as directed by Holdings reasonably in advance. Notwithstanding any provision in this Agreement to the contrary, in no event shall the Company be required to pay the Company Termination Fee or the Company Expense Reimbursement referred to in this Section 7.2(a) on more than two (2) business days after one occasion. Upon payment of the date Company Termination Fee and the Company Expense Reimbursement, as applicable, the Company shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub, their Affiliates or otherwise except for liability arising out of receipt of Parent’s termination notice. For purposes fraud or an intentional breach of this Section 7.3Agreement, the term “Takeover Proposal” in which case Parent shall have the meaning assigned such rights and remedies as are contemplated by Sections 7.4 and 8.12 below (in addition to any amounts owed to such term in party under Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%7.2).
(b) In the event that this Agreement is terminated (i) by the Company or by Parent pursuant to Section 7.1(b) and the conditions set forth in Sections 6.1 and 6.3 would have been satisfied had the Closing been scheduled on the End Date, or (ii) by the Company pursuant to Section 7.1(b)(iii7.1(e) and all other conditions set forth in Article VI (excluding or Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing7.1(h), then Holdings or its Affiliates shall pay, upon termination, $25,000,000 (the “Parent Termination Fee”) to the Company or as directed by the Company as promptly as reasonably practicable (and, in any event, within two (2) business days following such termination), payable by wire transfer of same day funds. Under no circumstances shall the Parent Termination Fee be payable more than once pursuant to this Section 7.2(b). Concurrently with the payment of the Parent Termination Fee, Holdings shall also pay to Parent, by wire transfer, the Company an amount which shall not exceed $600,000 and which shall represent reimbursement equal to the sum of the Company’s documented out-of-out of pocket costs fees and expenses (including the costs and expenses of counsel) reasonably incurred by Parent it on and Merger Sub after September 24, 2007 in connection with this Agreement and the Transactions transactions contemplated by this Agreement in an aggregate amount not to exceed $3,000,000 (such amount, the “Parent Expense Reimbursement”). Such Upon payment of the Parent Termination Fee and Parent Expense Reimbursement, neither Holdings, Parent nor Merger Sub shall occur (i) concurrent have any further liability with termination in respect to this Agreement or the event of any such termination transactions contemplated by this Agreement to the Company, its stockholders, Affiliates or (ii) no later than two (2) business days after the Company’s receipt otherwise except for liability arising out of Parent’s termination notice fraud or an intentional breach of this Agreement, in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, which case the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid have such rights as are contemplated by the CompanySection 7.3 below.
(c) Any payment made pursuant to this Section 7.2 shall be net of any amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign Tax Law.
(d) Each of Holdings, the Company, Parent and Merger Sub acknowledges acknowledge and agree that the agreements contained in this Section 7.3 7.2 are an integral part of Transactions. In the event that transactions contemplated by this Agreement, and that, without these agreements, neither the Company shall fail nor Parent would have entered into this Agreement, and that any amounts payable pursuant to this Section 7.2 do not constitute a penalty but rather are liquidated damages in a reasonable amount to compensate the receiving party 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 a party fails to pay the Company Termination Fee, the Company Expense Reimbursement or the Company Parent Termination Fee when dueFee, as applicable, pursuant to this Section 7.2, and the Company receiving party commences a suit to obtain such payments, which results in a judgment against the paying party for the applicable amount due under this Section 7.2, such paying party shall reimburse Parent and Merger Sub for all reasonable pay the receiving party its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorney’s fees) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the such amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date such payment was required to be made through the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3date of payment.
Appears in 2 contracts
Sources: Merger Agreement (Vestar Capital Partners v L P), Merger Agreement (Radiation Therapy Services Inc)
Termination Fees. (a) In If, but only if, the event that this Agreement is terminated: terminated by:
(i) (x) either Parent or the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii), or by Parent pursuant to Section 7.1(d)(i8.1(d)(i), Section 8.1(d)(ii)(x) or (iiSection 8.1(d)(ii)(z) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior the Company (A) receives or has received a Competing Proposal from a Third Party after the date hereof, which Competing Proposal becomes publicly known, and (B) within twelve (12) months of the termination of this Agreement, enters into, agrees to or consummates a transaction regarding such Competing Proposal or any such termination, a Takeover Proposal has been madeCompeting Proposal, then the Company shall pay pay, or cause to be paid, to Parent an amount equal to Three Hundred Thirty Dollars ($330,000) (the Company “Termination Fee at Fee”), not later than the closing third (3rd) Business Day following the execution of the agreement relating to such transaction pursuant to the Takeover Proposal; arising from such Competing Proposal (provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.1(c)(ii), the term references to “Takeover Proposaltwenty-five percent (25%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%.)”); or
(bii) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(c)(ii) and all other conditions or Parent pursuant to Section 8.1(d)(ii)(y), then the Company shall pay, or cause to be paid, to Parent the Termination Fee;
(b) Notwithstanding anything to the contrary set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur Agreement:
(i) concurrent with termination the parties agree that in no event shall the event of any such termination by Company be required to pay the Company, or Termination Fee on more than one occasion; and
(ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in parties agree that the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less shall be reduced by any Expense Reimbursement previously paid by the Companyamounts as may be required to be deducted or withheld therefrom under applicable Tax Law.
(c) Each Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company, Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, affiliates or 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 or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (except that the Company shall also be obligated with respect to Section 8.3(d)).
(d) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event that transactions contemplated by this Agreement, (ii) the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when dueis not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of parties would not enter into this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Thestreet, Inc.), Merger Agreement (theMaven, Inc.)
Termination Fees. (a) In the event that Except as set forth in Section 5.3(h) and this Section 8.3, all fees and expenses incurred in connection with this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) and the Contemplated Transactions shall be paid by the Company pursuant to Section 7.1(c)(i)party incurring such fees and expenses, thenwhether or not the Merger is consummated; provided, in any such event under clause (i) or (ii) of this Section 7.3(a)however, that Parent and the Company shall pay to Parentshare equally all fees and expenses, by wire transferother than attorneys’ fees, an amount equal to $1,300,000 (incurred in connection with the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach filing by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing parties hereto of the transaction pursuant premerger notification and report forms relating to the Takeover Proposal; provided, that such closing occurs within 12 months after Merger under the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), HSR Act and the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date filing of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%any notice or other document under any applicable foreign antitrust or competition law or regulation.
(b) In the event that If: (i) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b) or Section 8.1(d); (ii) after the date hereof and all other conditions set forth at or prior to the time of the termination of this Agreement (in Article VI (excluding the case of Section 6.1(d) and Section 6.2(d8.1(b)) or prior to the time of the Company Members’ Meeting (in the case of Section 8.1(d)), an Acquisition Proposal shall have been satisfied or waived disclosed, announced, commenced, submitted (other than those conditions that by their nature are to be satisfied at in the Closingcase of Section 8.1(d), publicly) or made (in the case of Section 8.1(d), publicly); and (iii) within 12 months after the date of any such termination, an Acquisition Transaction (whether or not related to such Acquisition Proposal) is consummated or a definitive agreement contemplating an Acquisition Transaction (whether or not related to such Acquisition Proposal) is executed and subsequently consummated, then the Company shall pay to Parent a non-refundable fee in the amount of $98,350,000 in cash (the “Termination Fee”); provided, however, that for purposes of this clause “(b)”, references to 15% in the definition of Acquisition Transaction shall be deemed to be references to 40%.
(c) If this Agreement is terminated by: (i) Parent pursuant to Section 8.1(e); (ii) by the Company pursuant to Section 8.1(h); or (iii) if this Agreement is terminated by Parent or the Company pursuant to any other provision of Section 8.1 at any time after the occurrence of a Triggering Event but prior to the Company Members’ Meeting, then (unless the Company is required to pay to Parent the fee referred to in Section 8.3(d)) the Company shall pay to Parent the Termination Fee.
(d) If this Agreement is terminated by Parent or the Company at any time after the Company Board Recommendation has been withdrawn or modified in accordance with clause “(ii)” of Section 5.2(d) but prior to the Company Members’ Meeting, then the Company shall pay to Parent a non-refundable fee in the amount of $131,140,000 in cash.
(e) Any fee required to be paid to Parent pursuant to Section 8.3(b) shall be paid by the Company contemporaneously with the consummation of the Acquisition Transaction contemplated by Section 8.3(b). Any fee required to be paid to Parent pursuant to Section 8.3(c) or Section 8.3(d) shall be paid by the Company: (A) in the case of a termination of this Agreement by the Company, at or prior to the time of such termination; or (B) in the case of a termination of this Agreement by Parent, within two business days after such termination.
(f) The Company acknowledges and agrees that the covenants and obligations contained in this Section 8.3 are an integral part of the Contemplated Transactions, and that, without these covenants and obligations, Parent would not have entered into this Agreement. Other than for Willful Breach of Section 4.3 or Section 5.2, the parties agree that the payment of the Termination Fee (or the fee referred to in Section 8.3(d)), if paid by wire transferthe Company and accepted by Parent, an shall be the sole and exclusive monetary remedy available to Parent and Merger Sub with respect to this Agreement and the Merger and the other Contemplated Transactions in the event any such payment becomes due and payable, and, upon payment of the Termination Fee (or the fee referred to in Section 8.3(d)), the Acquired Companies (and their respective former, current or future officers, directors, partners, shareholders, managers, members, employees, Affiliates and Representatives) shall have no further liability to Parent, Merger Sub, Sponsor or their respective Affiliates under, arising out of or related to this Agreement or the Contemplated Transactions. In no event shall the Company be obligated to pay the Termination Fee (which for these purposes shall also include the fee payable pursuant to Section 8.3(d)) on more than one occasion.
(g) If the Company fails to pay when due any amount which payable under this Section 8.3, then: (i) the Company shall not exceed $600,000 reimburse Parent for all reasonable and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs fees and expenses disbursements of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under of such overdue amount and the enforcement by Parent of this Section 7.3. If the Company fails to promptly make any payment required its rights under this Section 7.3 8.3; and Parent commences a suit for payment, (ii) the Company shall indemnify pay to Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on such overdue amount (for the amount period commencing as of the payment date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate equal to per annum 300 basis points above over the “prime rate rate” (as announced by Bank of Citibank America, N.A. (or its successors or assignsany successor thereto) in effect on the date the payments such overdue amount was originally required to be paid.
(h) Any fee or other amount payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company to Parent pursuant to this Section 7.38.3 shall be paid by the Company free and clear of all deductions and withholdings, except as required by applicable Legal Requirements.
Appears in 2 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Fortress Investment Group LLC)
Termination Fees. (a) In the event that this Agreement is terminated: :
(i) by Parent pursuant to Section 7.1(d)(i9.01(b)(ii) (Adverse Recommendation Change), then the Company shall pay the Termination Fee to Parent in cash by wire transfer of immediately available funds within two (2) Business Days following such termination;
(ii) by Parent pursuant to Section 9.01(b)(i) (Breach of Covenants, Representations and Warranties) based on an Intentional Breach by the Company of any provision of this Agreement, and provided, in the case of this clause (ii), that (A) after the date hereof and prior to such termination, any Third Party shall have publicly disclosed or otherwise communicated to the Company Board an Acquisition Proposal and such Acquisition Proposal, if public, shall not have been publicly withdrawn at least two (2) Business Days prior to such termination, and (B) within twelve (12) months of any termination described in this clause (ii), (x) the Company or any of its Subsidiaries enters into a definitive agreement with respect to an Acquisition Proposal (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 9.03(a)) that is subsequently consummated or (iiy) the Company or its Subsidiaries consummates an Acquisition Proposal, then the Company shall pay the Termination Fee to Parent in cash by wire transfer of immediately available funds prior to or concurrently with the consummation of such Acquisition Proposal;
(iii) by the Company pursuant to Section 7.1(c)(i9.01(c)(ii) (Superior Proposal), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing to Parent in cash by wire transfer of the transaction pursuant to the Takeover Proposal; provided, that immediately available funds concurrently with such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement and any purported termination pursuant to Section 7.1(d)(i9.01(c)(ii) (Superior Proposal) shall be of no force or effect until such payment is made;
(iv) by Parent or the Company (as applicable) pursuant to Section 9.01(d)(ii) (End Date) without the Company Stockholder Approval having been obtained, or pursuant to Section 9.01(d)(iii) (Company Stockholder Approval), and provided, in the case of this clause (iv), that (A) after the date hereof and prior to such termination, any Third Party shall have publicly disclosed an Acquisition Proposal and such Acquisition Proposal shall not have been publicly withdrawn at least two (2) Business Days prior to (x) the date of such termination (in the case of termination pursuant to Section 9.01(d)(ii) (End Date)) or (y) the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 9.01(d)(iii)), and (B) within twelve (12) months of any termination described in this clause (iv), (x) the Company or any of its Subsidiaries enters into a definitive agreement with respect to an Acquisition Proposal (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 9.03(a)) that is subsequently consummated or (y) the Company or its Subsidiaries consummates an Acquisition Proposal, then the Company shall pay the Company Termination Fee promptly, but to Parent in no event more than two (2) business days after cash by wire transfer of immediately available funds prior to or concurrently with the date consummation of receipt of Parent’s termination noticesuch Acquisition Proposal. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned Subject to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
clause (b) In of Section 9.02, Parent’s right to receive the one-time payment of the Termination Fee from the Company as provided in this Section 9.03(a) shall be the sole and exclusive remedy available to Parent or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives against the Company or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the Contemplated Transactions in the event that this Agreement is terminated by and Parent or receives the Company pursuant to Termination Fee in accordance with Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing9.03(a), and, upon such payment of the Company shall pay to ParentTermination Fee, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent in no event may Parent or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives seek to recover any other money damages or seek any other remedy based on a claim in Law or equity with respect to any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, the termination in the event of this Agreement, any such termination by the CompanyLiabilities or obligations arising under this Agreement, or any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and (ii) no later none of the Company or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further Liability relating to or arising out of this Agreement or the Contemplated Transactions other than two (2) business days after the Company’s receipt of Parent’s termination notice in the event case of any such termination by Parent. In addition, if a Takeover Proposal has been made clauses (i) and publicly announced before this Agreement has been voted on by the shareholders (ii) in respect of the CompanySurviving Provisions and the Confidentiality Agreement. For the avoidance of doubt, this Agreement is terminated by Parent may seek specific performance to cause the Company to consummate the Contemplated Transactions in accordance with Section 10.12 or the Company pursuant to Section 7.1(b)(iii), and payment of the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.39.03(a) (or both concurrently), but in no event shall Parent be entitled to both (x) equitable relief ordering the Company to consummate the Contemplated Transactions in accordance with Section 10.12 (as a result of which the Contemplated Transactions are consummated) and (y) the payment of the Termination Fee pursuant to this Section 9.03(a).
(b) As used in this Agreement, (i) “Termination Fee” shall mean (a) $270,000,000.
Appears in 2 contracts
Sources: Merger Agreement (CoreWeave, Inc.), Agreement and Plan of Merger (Core Scientific, Inc./Tx)
Termination Fees. (a) In the event that If, but only if, this Agreement is terminated: terminated by:
(i) by Parent pursuant to Section 7.1(d)(i8.01(c)(ii) or (ii) by either Parent or the Company pursuant to Section 7.1(c)(i8.01(b)(i) or Section 8.01(b)(ii), and in any such case (x) prior to such termination (or the Stockholders’ Meeting in the case of termination pursuant to Section 8.01(b)(ii)), an Acquisition Proposal shall have been communicated to the management of the Company or the Company Board or shall have been publicly disclosed and not irrevocably withdrawn prior to such date and (y) within eighteen (18) months after such termination, (1) the Company enters into a Competing Acquisition Arrangement with a Third Party that is thereafter consummated, (2) the Company consummates the transactions contemplated by any Acquisition Proposal with a Third Party, or (3) the Company Board recommends an Acquisition Proposal with a Third Party to the Company’s stockholders that is later consummated, which in the case of (1), (2) or (3), need not be the same Acquisition Proposal described in clause (x) above (provided that, for purposes of this Section 8.03, references to “20%” in the definition of Acquisition Transaction shall be deemed to be references to “50%”);
(ii) the Company pursuant to Section 8.01(d)(i); or
(iii) Parent pursuant to Section 8.01(c)(i); then, in any such event under clause (i) or (ii) of this Section 7.3(a)case, the Company shall pay pay, or cause to be paid, to Parent or Parent’s designee(s), by wire transferas the case may be, an amount equal to $1,300,000 36,000,000 (the “Company Termination Fee”). If .
(b) Any payments required to be made under Section 8.03(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (w) in the case of Section 8.03(a)(i), on the same day as the consummation of any transactions contemplated by an Acquisition Proposal, (x) in the case of Section 8.03(a)(ii), immediately prior to or concurrently with such termination, and (y) in the case of Section 8.03(a)(iii), promptly, but in no event later than two (2) Business Days after the date of such termination.
(c) If the Agreement is terminated by the Company pursuant to Section 8.01(d)(ii) or Section 8.01(d)(iii), then Parent terminates shall pay, or cause to be paid, to the Company an amount equal to $72,000,000 (the “Parent Termination Fee”) by wire transfer of same day funds to the account or accounts designated by the Company not later than two (2) Business Days after the date of such termination.
(d) Notwithstanding any other provision of this Agreement to the contrary, the Company acknowledges and agrees on behalf of itself and its Affiliates that termination of this Agreement pursuant to Section 7.1(d)(ii8.01(d)(ii) due or Section 8.01(d)(iii) and the receipt of the Parent Termination Fee (in circumstances in which it is payable) shall (x) constitute the sole and exclusive remedy under this Agreement of the Company and each of its Affiliates and Representatives and holders of Shares and any other Company Related Party, and (y) be deemed to an intentional breach be liquidated damages, for any and all losses or damages suffered or incurred by the Company and its Affiliates and Representatives, holders of Shares and any other Company Related Party in connection with or as a result of any breach of any representation, warranty, covenant or agreement or the failure of the transactions contemplated hereby to be consummated or any matter forming the basis for termination of this Agreement, and none of the Company and its respective Affiliates or Representatives, any holder of Shares or any other Company Related Party shall be entitled to bring or maintain any Proceeding against Parent, Merger Sub, any Parent Related Party or any of their respective Affiliates or Representatives arising out of or in connection with this Agreement, the Merger, the Debt Financing, or any of the other transactions contemplated hereby or thereby (yor the abandonment or termination thereof) prior to or any matters forming the basis for such termination, a Takeover Proposal has been made, then . The Company shall not be entitled to specific performance under Section 9.09 if the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have has terminated this Agreement pursuant to Section 7.1(d)(i8.01(d)(ii) or Section 8.01(d)(iii) and Parent has paid in full the Parent Termination Fee as provided in Section 8.03(c), and in no event shall the Company shall pay or its Affiliates be permitted or entitled to receive both a grant of specific performance of Parent’s and Merger Sub’s obligations to cause the Closing to occur pursuant to Section 2.02 and the Parent Termination Fee.
(e) Notwithstanding any other provision of this Agreement to the contrary, Parent acknowledges and agrees on behalf of itself and its Affiliates that, (i) in the event of termination of this Agreement in a circumstance in which the Company Termination Fee promptlybecomes payable to Parent pursuant to Section 8.03(a)(i), but in no event more than two (2Section 8.03(a)(ii) business days after or Section 8.03(a)(iii), the date of receipt of Parent’s termination notice. For purposes the Company Termination Fee shall (except in the case of any willful breach or fraud, to which the limitations set forth in this Section 7.3subsection (e) shall not apply) (x) constitute the sole and exclusive remedy under this Agreement of Parent and each of its Affiliates and Representatives and any other Parent Related Party, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall and (y) be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) liquidated damages, for any and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied losses or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) damages suffered or incurred by Parent and Merger Sub its Affiliates and Representatives and any other Parent Related Party in connection with or as a result of any breach of any representation, warranty, covenant or agreement or the transactions contemplated hereby to be consummated or any matter forming the basis for termination of this Agreement Agreement, and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (iii) concurrent with termination in the event of any such termination by of this Agreement in a circumstance in which the CompanyCompany Termination Fee becomes payable to Parent pursuant to Section 8.03(a)(i), Section 8.03(a)(ii) or (ii) no later than two (2) business days after the CompanySection 8.03(a)(iii), then, following Parent’s receipt of Parent’s termination notice the Company Termination Fee, none of Parent and its respective Affiliates or Representatives or any other Parent Related Party shall (except in the event case of any willful breach or fraud, to which the limitations set forth in this clause (e) shall not apply) be entitled to bring or maintain any Proceeding against the Company or any Company Related Party or any of their respective Affiliates or Representatives arising out of or in connection with this Agreement, the Merger, or any of the other transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination termination.
(f) For the avoidance of doubt, any payment by Parent. In additionthe Company or Parent under this Section 8.03 shall be payable only once with respect to this Section 8.03 and not in duplication even though such payment may be payable under one or more provisions hereof.
(g) Notwithstanding anything herein to the contrary, if a Takeover Proposal has been made Parent or Merger Sub fail to complete the Merger for any or no reason or otherwise breach this Agreement, fail to perform hereunder or under the Debt Financing (in any case, whether willfully, intentionally, unintentionally or otherwise) then, except for an order of specific performance as and publicly announced before this Agreement has been voted on only to the extent expressly permitted by Section 9.09, the shareholders sole and exclusive remedy (whether at law, in equity, in contract in tort or otherwise) of the Company, its Affiliates and any other Person against Parent, Merger Sub or any Parent Related Party for any such failure, breach, loss, damage or otherwise shall be for the Company to terminate this Agreement is terminated by and receive payment of the Parent Termination Fee, if payable hereunder. For the avoidance of doubt, under no circumstance will the Company, any of its Affiliates, any holder of Shares or any other Company Related Party be entitled to aggregate monetary damages (when taken together with all other monetary damages and the payment of the full or partial amount of the Parent Termination Fee) from Parent, Merger Sub and the Parent Related Parties to the Company, any of the Company’s Affiliates, any holder of Shares or any other Company Related Party in connection with this Agreement, the Debt Financing, for any breach, failure to perform hereunder or thereunder (in any case, whether willfully, intentionally, unintentionally or otherwise) or other liability of any kind suffered as a result of any breach of this Agreement or the Company pursuant failure to Section 7.1(b)(iii)complete the Merger or any other transactions contemplated by this Agreement or the Debt Financing (including the abandonment or termination hereof or thereof) for any loss or otherwise, and in excess of the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with amount of the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the CompanyFee.
(ch) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 8.03 are an integral part of Transactions. In this Agreement and the event transactions contemplated hereby and that without such agreements the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when dueCompany, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred would not have entered into this Agreement. Accordingly, if the Company or accrued by Parent, as the case may be, fails to pay the fees due pursuant to this Section 8.03 or any portion thereof and, in order to obtain such payment, the Company, Parent or Merger Sub (as applicable, the “Prevailing Party”) commences a suit which results in an Order against the other party (the “Other Party”) for such fee or any portion thereof, the Other Party shall pay to the Prevailing Party its costs and expenses (including reasonable expenses of counselattorney’s fees and disbursements) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the amount of the applicable fee (or any portion thereof that has not been paid timely in accordance with this Agreement) and on the amount of such costs and expenses, in each case from and including the date payment of such amount was due to through the date of actual payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) set forth in The Wall Street Journal in effect on the date the payments such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee required to be payable by the Company pursuant to this Section 7.3made.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Termination Fees. (a) In the event that this Agreement is terminated: If:
(i) by Parent AWS shall terminate this Agreement pursuant to Section 7.1(d)(i) or 6.1(f)(iii); or
(ii) by the Company either AWS or TeleCorp shall terminate this Agreement pursuant to Section 7.1(c)(i6.1(g), then, ; or
(iii) AWS shall terminate this Agreement pursuant to Section 6.1(d) and prior to such termination any offer or proposal (or intent to make any offer or proposal) that would be an Acquisition Proposal shall have been announced or otherwise publicly disclosed and not withdrawn;
(1) in any such event the case of a termination by AWS under clause (i) or clause (ii), TeleCorp shall pay to AWS, not later than the close of business on the Business Day following such termination an amount equal to $65,000,000 (the "Termination Fee"); (2) in the case of a termination by TeleCorp under clause (ii) of this Section 7.3(a), the Company TeleCorp shall pay to ParentAWS, by wire transfernot later than, and as a condition precedent to, termination of this Agreement, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company ; and (y3) prior to any such terminationin the case of a termination by AWS under clause (iii), a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs if within 12 months after the termination date. If Parent shall have terminated of this Agreement pursuant TeleCorp enters into an agreement with respect of an Acquisition Proposal with any Person (other than AWS or its Subsidiaries) or an Acquisition Proposal is consummated (it being understood that in the event the Board of Directors of TeleCorp recommends the acceptance by the TeleCorp stockholders of a tender offer or exchange offer with respect to Section 7.1(d)(ian Acquisition Proposal, such recommendation shall be treated as though an agreement with respect to an Acquisition Proposal had been entered into on such date), the Company TeleCorp shall pay the Company Termination Fee promptlyto AWS, but in no event more not later than two (2) business days after the date of receipt of Parent’s termination noticesuch agreement is entered into, an amount equal to the Termination Fee. For purposes of this Section 7.36.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall a proposal or offer will be deemed to be references have been publicly disclosed, without limitation, if it becomes known to 50%holders of a majority of the voting power of the TeleCorp Capital Stock.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) All payments and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been reimbursements made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company 6.3 shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount be made by wire transfer of the payment at a rate equal immediately available funds to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable account specified by the Company pursuant to this Section 7.3AWS.
Appears in 2 contracts
Sources: Merger Agreement (Telecorp PCS Inc /Va/), Merger Agreement (At&t Wireless Services Inc)
Termination Fees. (a) In the event that this Agreement is terminated: terminated (iA) by Parent pursuant to Section 7.1(d)(i8.01(b)(ii) (Company Adverse Recommendation Change), then the Company shall pay to Parent the Termination Fee as promptly as possible (but in any event within two (2) Business Days) following such termination or (iiB) by the Company pursuant to Section 7.1(c)(i8.01(c)(ii) (Company Superior Proposal), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay to Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that concurrently with such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement and any purported termination pursuant to Section 7.1(d)(i8.01(c)(ii) (Company Superior Proposal) shall be of no force or effect until such payment is made. Subject to Section 8.02(b), Parent’s right to receive the one-time payment of the Termination Fee from the Company as provided in this Section 8.03(a) shall be the sole and exclusive remedy available to Parent against the Company or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the Contemplated Transactions in the event that this Agreement is terminated by Parent pursuant to Section 8.01(b)(ii) (Company Adverse Recommendation Change) or the Company pursuant to Section 8.01(c)(ii) (Company Superior Proposal), and, upon such payment of the Termination Fee, none of the Company’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions. The parties hereto acknowledge and agree that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(b) In the event that (i) this Agreement is terminated by Parent or the Company (as applicable) pursuant to Section 8.01(d)(iii) (Company Stockholder Approval), (ii) after the date hereof and prior to such termination, any Person shall have publicly disclosed a bona fide Company Acquisition Proposal and such Company Acquisition Proposal shall not have been publicly withdrawn prior to the time of the termination of this Agreement and (iii) within twelve (12) months of such termination, the Company shall pay have consummated the transactions contemplated by a Company Termination Fee promptlyAcquisition Proposal (provided, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For that for purposes of this Section 7.3, clause (iii) the term references to “Takeover 20%” in the definition of “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to “50%.
”), then the Company shall pay to Parent the Termination Fee, as promptly as possible (bbut in any event not later one (1) In Business Day after the consummation of such Company Acquisition Proposal). Subject to Section 8.02(b), ▇▇▇▇▇▇’s right to receive the one-time payment of the Termination Fee (if and when due) from the Company as provided in this Section 8.03(b) shall be the sole and exclusive remedy available to Parent against the Company or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the Contemplated Transactions in the event that this Agreement is terminated by Parent or the Company under circumstances requiring the payment of the Termination Fee pursuant to this Section 8.03(b), and, subject to Section 8.02(b) and upon such payment of the Termination Fee (if and when due), none of the Company’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions.
(c) In the event that this Agreement is terminated (x) by the Company Section 8.01(c)(iii) (Parent Adverse Recommendation Change), then Parent shall pay to the Company the Termination Fee as promptly as possible (but in any event within two (2) Business Days) following such termination or (y) by the Company or Parent pursuant to Section 7.1(b)(iii8.01(d)(iv) and all other conditions set forth (Parent Stockholder Approval), then Parent shall pay to the Company the Company Expense Reimbursement as promptly as possible (but in Article VI any event within two (excluding 2) Business Days) following such termination. Subject to Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.02(b), the Company’s right to receive the one-time payment of the Termination Fee or the Company Expense Reimbursement, as applicable, from Parent as provided in this Section 8.03(c) shall pay be the sole and exclusive remedy available to Parentthe Company against Parent or any of its former, by wire transfercurrent or future equityholders, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the Contemplated Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.01(d)(iv) (Parent Stockholder Approval) or Section 8.01(c)(iii) (Parent Adverse Recommendation Change), and as applicable, and, upon such payment of the Termination Fee or the Company consummates a transaction pursuant Expense Reimbursement, as applicable, none of Parent or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to any Takeover Proposal within 12 months after such termination date, then concurrently with or arising out of this Agreement or the closing of such transaction, Contemplated Transactions. The parties hereto acknowledge and agree that in no event shall Parent be required to pay the Termination Fee or the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyon more than one occasion.
(cd) Each of As used in this Agreement, (i) “Termination Fee” shall mean $1,740,000 and “Company Expense Reimbursement” shall mean an amount equal to the Company, Parent ’s reasonable and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually documented Transaction Costs incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant in an aggregate amount not to this Section 7.3exceed $750,000.
Appears in 2 contracts
Sources: Merger Agreement (Rocket Pharmaceuticals, Inc.), Merger Agreement (Renovacor, Inc.)
Termination Fees. (a) In the event that If this Agreement is terminated: terminated by:
(i) by Parent pursuant to Section 7.1(d)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any such case (A) prior to such termination (or prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Acquisition Proposal that has been made after the date of this Agreement shall have been publicly disclosed and not publicly withdrawn prior to such date and (B) within twelve (12) months after such termination, a Company Acquisition Proposal is consummated or the Company enters into a definitive agreement with respect to a Company Acquisition Proposal (provided, however, that for purposes of this Section 7.3(a)(i)), the references to “twenty percent (20%)” in the definition of Company Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) Parent pursuant to Section 7.1(d)(ii) (or pursuant to any other provision of Section 7.1 if Parent was then entitled to terminate this Agreement pursuant to Section 7.1(d)(ii)); or
(iii) the Company pursuant to Section 7.1(c)(iii); then, in each such case, the Company shall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (x) in the case of clause (i) above, on the earlier of the date of consummation of, or entry into a definitive agreement with respect to, such Company Acquisition Proposal, (y) in the case of clause (ii) above, promptly, but in no event later than three (3) Business Days after the date of such termination and (z) in the case of clause (iii) above, immediately prior to or concurrently with the termination of this Agreement.
(b) If this Agreement is terminated by:
(i) the Company pursuant to Section 7.1(c)(i), then, ) on the basis of a breach of a covenant or agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iv) and in any such event under clause case (iA) prior to such termination (or prior to the Parent Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iv)), a Parent Acquisition Proposal that has been made after the date of this Agreement shall have been publicly disclosed and not publicly withdrawn prior to such date and (B) within twelve (12) months after such termination, a Parent Acquisition Proposal is consummated or Parent enters into a definitive agreement with respect to a Parent Acquisition Proposal (provided, however, that for purposes of this Section 7.3(b)(i)), the references to “twenty percent (20%)” in the definition of Parent Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) of this Section 7.3(a), the Company shall pay pursuant to Parent, by wire transfer, an amount equal Section 7.1(c)(ii) (or pursuant to $1,300,000 (any other provision of Section 7.1 if the “Company Termination Fee”). If (x) Parent terminates was then entitled to terminate this Agreement pursuant to Section 7.1(d)(ii7.1(c)(ii)); or
(iii) due Parent pursuant to Section 7.1(d)(iii); then, in each such case, Parent shall pay, or cause to be paid, to the Company the Parent Termination Fee. Any payments required to be made under this Section 7.3(b) shall be made by wire transfer of same day funds to the account or accounts designated by the Company (x) in the case of clause (i) above, on the earlier of the date of consummation of, or entry into a definitive agreement with respect to, such Parent Acquisition Proposal, (y) in the case of clause (ii) above, promptly, but in no event later than three (3) Business Days after the date of such termination and (z) in the case of clause (iii) above, immediately prior to or concurrently with the termination of this Agreement.
(c) If this Agreement is terminated by (i) either Parent or the Company pursuant to Section 7.1(b)(i) and at the time of such termination any of the conditions to the Closing set forth in Section 6.1(d) or Section 6.1(e) (solely as a result of an intentional Order in respect of an Antitrust Law issued or entered after the date of this Agreement) shall not have been fulfilled but all other conditions to the Closing set forth in Article VI either have been waived or fulfilled or would be fulfilled if the Closing were to occur on such date or (ii) either Parent or the Company pursuant to Section 7.1(b)(ii) (solely as a result of (1) a final and non-appealable Order in respect of an Antitrust Law issued or entered after the date of this Agreement or (2) a failure to obtain a Consent of a Governmental Authority under an Antitrust Law required to be obtained pursuant to Section 6.1(d)), then Parent shall pay, or cause to be paid, to the Company the Reverse Termination Fee by wire transfer of same-day funds to the account or accounts designated by the Company promptly, but in no event later than three (3) Business Days after the date of such termination; provided, however, that Parent shall not be required to pay the Reverse Termination Fee pursuant to this Section 7.3(c) if a breach by the Company and (y) prior to of any such termination, a Takeover Proposal of its obligations under this Agreement has been madethe principal cause of the circumstances that would have otherwise required the payment of the Reverse Termination Fee pursuant to this Section 7.3(c).
(d) In the event this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii), then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) reasonable and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses, including all fees and expenses (including incurred in connection with the costs financing of the transactions contemplated by this Agreement and the fees and expenses of counsel) , accountants, investment bankers, experts and consultants, incurred by Parent and Merger Sub in connection with this Agreement and the Transactions transactions contemplated by this Agreement in an amount not to exceed $20,000,000 (such amount, the “Expense ReimbursementParent Expenses”); provided that any payment of the Parent Expenses shall not affect Parent’s right to receive any Company Termination Fee otherwise due under Section 7.3(a), but shall reduce, on a dollar for dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a). Such payment shall occur (i) concurrent with termination in the event of any such termination Any Parent Expenses required to be paid by the CompanyCompany under this Section 7.3(d) shall be made by wire transfer of immediately available funds promptly, or (ii) but in no event later than two three (23) business days Business Days after the Company’s receipt of Parent’s termination notice in documentation supporting such Parent Expenses.
(e) In the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii7.1(b)(iv), then Parent shall pay the Company the reasonable and documented out-of-pocket costs and expenses, including the fees and expenses of counsel, accountants, investment bankers, experts and consultants, incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement in an amount not to exceed $20,000,000 (the “Company consummates a transaction Expenses”), plus any amounts payable to the Company pursuant to Section 5.16(a); provided that any Takeover Proposal within 12 months payment of the Company Expenses shall not affect the Company’s right to receive any Parent Termination Fee otherwise due under Section 7.3(b), but shall reduce, on a dollar for dollar basis, any Parent Termination Fee that becomes due and payable under Section 7.3(b). Any Company Expenses required to be paid by Parent under this Section 7.3(e) shall be made by wire transfer of immediately available funds promptly, but in no event later than three (3) Business Days after Parent’s receipt of documentation supporting such termination date, then concurrently with Company Expenses.
(f) Notwithstanding anything to the closing of such transactioncontrary set forth in this Agreement, the parties agree that in no event shall the Company be required to pay the Company Termination Fee, or Parent be required to pay the Parent Termination Fee or the Reverse Termination Fee, as applicable, on more than one occasion. For the avoidance of doubt, in no event shall Parent be required to pay both the Parent Termination Fee and the Reverse Termination Fee.
(g) Notwithstanding anything to the contrary set forth in this Agreement, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 7.3(a) and/or the right to receive payment of the Parent Expenses pursuant to Section 7.3(c), shall, in circumstances in which the Company Termination Fee or Parent Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than Parent’s right, after having received the Parent Expenses, to receive the Company Termination Fee less the Parent Expenses in the circumstances expressly contemplated in Section 7.3(a)) of Parent and Merger Sub against the Company and its Subsidiaries and any Expense Reimbursement previously paid of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or 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 or otherwise, and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to any amounts owing pursuant to Section 7.3(h)(ii)). Notwithstanding anything to the contrary set forth in this Agreement, the Company’s right to receive payment from Parent of the Parent Termination Fee pursuant to Section 7.3(b), the Reverse Termination Fee pursuant to Section 7.3(c) and/or the right to receive payment of the Company Expenses pursuant to Section 7.3(e), shall, in circumstances in which the Parent Termination Fee, the Reverse Termination Fee or Company Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than the Company’s right, after having received the Company Expenses and the expenses contemplated by Section 5.16(a), to receive the Parent Termination Fee less the Company Expenses and the expenses contemplated by Section 5.16(a) in the circumstances expressly contemplated in Section 7.3(b)) of the Company against Parent and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Parent 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 or otherwise, and upon payment of such amounts, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Parent shall also be obligated with respect to any amounts owing pursuant to Section 7.3(h)(ii)).
(ch) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that transactions contemplated by this Agreement, and (ii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company shall fail or Parent, as applicable, fails to timely pay the Expense Reimbursement any amount due pursuant to this Section 7.3 and, in order to obtain such payment, Parent or the Company Termination Fee when dueCompany, as applicable, commences a suit that results in a judgment against the other for the payment of any amount set forth in this Section 7.3, the Company or Parent, as applicable, shall reimburse Parent and Merger Sub for all reasonable pay the other its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay (including reasonable attorneys’ fees), together with interest on the such amount of the payment at a an annual rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Middleby Corp), Merger Agreement (Welbilt, Inc.)
Termination Fees. (a) In the event that (i) this Agreement is terminated: (i) terminated by Parent Union pursuant to Section 7.1(d)(i8.01(c)(ii) or Section 8.01(c)(iii) or (ii) this Agreement is terminated by the Company Visor pursuant to Section 7.1(c)(i8.01(b)(iv), then, then Visor shall pay to Union (A) the Termination Fee (1) as promptly as possible (but in any event within three (3) Business Days) following such event under termination in the case of a termination pursuant to clause (i) above or (2) upon termination of this Agreement in the case of a termination pursuant to clause (ii) above and (B) the Expenses no later than three (3) Business Days after receipt of documentation supporting such Expenses. Union’s right to receive the one-time payment of the Termination Fee and the Expenses from Visor as provided in this Section 7.3(a)8.03(a) shall be the sole and exclusive remedy available to Union against Visor or any of its former, the Company shall pay current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by Union pursuant to Section 7.1(d)(ii8.01(c)(ii) due to an intentional breach or Section 8.01(c)(iii) or by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement Visor pursuant to Section 7.1(d)(i8.01(b)(iv) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Company shall pay the Company Termination Fee promptlyand the Expenses, but none of Visor’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. The parties hereto acknowledge and agree that in no event shall Visor be required to pay the Termination Fee or the Expenses on more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%one occasion.
(b) In the event that (i) this Agreement is terminated by Parent or the Company Visor pursuant to Section 7.1(b)(iii8.01(b)(ii) and all other conditions set forth in Article VI or Section 8.01(b)(iii) or (excluding ii) this Agreement is terminated by Union pursuant to Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.01(c)(iv), the Company then Union shall pay to ParentVisor (A) the Termination Fee (1) as promptly as possible (but in any event within three (3) Business Days) following such termination in the case of a termination pursuant to clause (i) above or (2) upon termination of this Agreement in the case of a termination pursuant to clause (ii) above and (B) the Expenses no later than three (3) Business Days after receipt of documentation supporting such Expenses. Visor’s right to receive the one-time payment of the Termination Fee and the Expenses from Union as provided in this Section 8.03(b) shall be the sole and exclusive remedy available to Visor against Union or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by wire transferVisor pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) or by Union pursuant to Section 8.01(c)(iv) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Termination Fee and the Expenses, none of Union’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. The parties hereto acknowledge and agree that in no event shall Union be required to pay the Termination Fee or the Expenses on more than one occasion.
(c) In the event that, prior to the Union Shareholders’ Meeting, an amount which Acquisition Proposal with respect to Union is publicly proposed or publicly disclosed and this Agreement is terminated by Visor or Union pursuant to Section 8.01(b)(i) or Section 8.01(d)(iii), then Union shall not exceed pay to Visor the Expenses no later than three (3) Business Days after receipt following termination of documentation supporting such Expenses. Visor’s right to receive the one-time payment of the Expenses from Union as provided in this Section 8.03(c) shall be the sole and exclusive remedy available to Visor against Union or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by Visor or Union pursuant to Section 8.01(b)(i) or Section 8.01(d)(iii) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Expenses, none of Union’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.
(d) In the event that, prior to the Visor Shareholders’ Meeting, an Acquisition Proposal with respect to Visor is publicly proposed or publicly disclosed and this Agreement is terminated by Visor or Union pursuant to Section 8.01(c)(i) or Section 8.01(d)(iv), then Visor shall pay to Union the Expenses no later than three (3) Business Days after receipt following termination of documentation supporting such Expenses. Union’s right to receive the one-time payment of the Expenses from Visor as provided in this Section 8.03(d) shall be the sole and exclusive remedy available to Union against Visor or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by Visor or Union pursuant to Section 8.01(c)(i) or Section 8.01(d)(iv) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Expenses, none of Union’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.
(e) As used in this Agreement, “Termination Fee” shall mean $600,000 and which 1,500,000. As used in this Agreement, “Expenses” shall represent reimbursement of mean reasonable, documented out-of-pocket costs fees and expenses (including the costs and expenses of counsel) incurred or paid by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders behalf of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), party receiving payment thereof and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) its Affiliates in connection with the collection under transactions contemplated by this Agreement, or related to the authorization, preparation, negotiation, execution and enforcement performance of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentAgreement, the Company shall indemnify Parent for its in each case including all documented fees and expenses (including attorneys fees of law firms, commercial banks, investment banking firms, financing sources, accountants, experts and expenses) incurred in connection with consultants to such suit party and shall pay interest on its Affiliates; provided, that the aggregate amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was Expenses payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3not exceed $2,000,000.
Appears in 2 contracts
Sources: Merger Agreement (Vision Sciences Inc /De/), Merger Agreement (Uroplasty Inc)
Termination Fees. (a) In the event that If this Agreement is terminated: terminated by Parent pursuant to Section 9.01(e), then the Company shall pay to Parent (or a person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds within one (1) Business Day following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 9.01(f), then the Company shall pay to Parent (or a person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds, concurrently with, and as a condition to the effectiveness of, such termination of this Agreement.
(c) If (i) after the date hereof, a Takeover Proposal shall have become publicly known and not irrevocably withdrawn at least two (2) Business Days prior to the earliest of the date of such termination, the Outside Date and the then-scheduled expiration date of the Offer, (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section 9.01(b)(i) (and at the then-scheduled expiration date of the Offer as of immediately prior to such termination, all Offer Conditions are satisfied (other than (1) the Minimum Tender Condition, (2) any Offer Condition the failure which to be satisfied was principally caused or resulted from the Company’s breach of this Agreement and (3) those Offer Conditions that by their terms are to be satisfied at the Offer Closing, so long as such conditions are capable of being satisfied at such time) or (B) by Parent pursuant to Section 7.1(d)(i9.01(c)(i) (arising from a breach of the Company’s covenants or agreements set forth in this Agreement), and (iiiii) by within twelve (12) months of such termination, the Company pursuant to Section 7.1(c)(i)or any of its Subsidiaries enters into a definitive acquisition agreement or similar definitive agreement that provides for any Takeover Proposal, or any Takeover Proposal (regardless of when made) is consummated, then, in any such event under clause (i) or (ii) of this Section 7.3(a)case, the Company shall pay to Parent, Parent (or a person designated by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (xParent in writing) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at by wire transfer of same-day funds on the closing earlier of the transaction pursuant to the Takeover Proposal; provided, that date on which any such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), definitive agreement is entered into by the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after or any of its Subsidiaries or the date of receipt of Parent’s termination noticeany such transaction is consummated. For Solely for purposes of this Section 7.39.03(c), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.26.02(a), except that all references to “20%” therein to 20% shall be deemed to be references to “50%.”
(bd) In the no event that this Agreement is terminated by Parent or shall the Company pursuant be required to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by on more than one occasion, whether or not the CompanyCompany Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and upon the occurrence of different events.
(ce) Each of the Company, Company and Parent acknowledges and Merger Sub acknowledges agrees that the agreements contained in this Section 7.3 9.03 are an integral part of Transactions. In the event that transactions contemplated by this Agreement, and that, without these agreements, neither the Company shall fail nor Parent would have entered into this Agreement. Notwithstanding anything herein to pay the Expense Reimbursement or contrary, Parent and Merger Sub agree that, upon the termination of this Agreement under circumstances in which the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be is payable by the Company pursuant to this Section 7.39.03 and the Company pays in full of the Company Termination Fee to Parent (or a person designated by Parent in writing), such Company Termination Fee shall be deemed to be liquidated damages, and not a penalty, payable to Parent and, except in the case of fraud or any willful breach of this Agreement (which fraud or willful breach shall be governed by Section 9.02), receipt of the Company Termination Fee shall constitute the sole and exclusive remedy of Parent, Merger Sub and their respective Affiliates for any and all losses or damages suffered or incurred by Parent, Merger Sub or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby (including the termination thereof or any matter forming a basis for such termination). Neither Parent, Merger Sub nor any of their respective Affiliates shall be entitled to seek any other remedy, at law or in equity or otherwise, including bringing or maintaining any Action against, or seeking recovery, judgment or damages of any kind from, the Company or any of its Subsidiaries (or any of the former, current and future holders of any equity interests (other than pursuant to and in accordance with the Support Agreement), controlling persons, directors, officers, employees, Affiliates, Representatives and assignees of each of the Company and its Subsidiaries), arising out of this Agreement or any of the transactions contemplated hereby (including the termination of this Agreement or any matters forming the basis for such termination). If the Company fails promptly to pay any fee or reimburse any amount due pursuant to this Section 9.03, and, in order to obtain such payment, Parent commences an Action that results in an award against the Company for such fee or reimbursement, the Company shall pay to Parent its costs and expenses (including attorneys’ fees) incurred in connection with such Action, together with interest on the amount of the applicable fee from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3.0%.
Appears in 2 contracts
Sources: Merger Agreement (Nimble Storage Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Termination Fees. (a) In the event that this Agreement is terminated: If:
(i) by Parent terminates this Agreement pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause clauses (i) or (iii) of Section 7.1(g);
(ii) Company terminates this Agreement pursuant to Section 7.1(h); or
(iii) Parent or Company terminates this Agreement pursuant to Section 7.1(b) or Section 7.1(d) or Parent terminates this Agreement pursuant to clause (ii) of Section 7.1(g) and, in the case of such termination, (A) at any time after the date of this Section 7.3(a)Agreement and prior to such termination an Acquisition Proposal shall have been publicly announced or otherwise publicly communicated to the Company Board or shareholders of Company and not publicly withdrawn (such Acquisition Proposal, the “Outstanding Proposal”) and (B) prior to the date that is twelve (12) months after the effective date of such termination, Company enters into a definitive agreement with respect to the Outstanding Proposal and the Outstanding Proposal is subsequently consummated (whether or not such consummation occurs within such twelve-month period); provided that references to “more than fifteen percent (15%)” in the definition of Acquisition Proposal shall be deemed to be references to “more than fifty percent (50%)”, then Company shall pay to Parent, by wire transfer, an amount Parent a termination fee equal to $1,300,000 9,000,000 (the “Company Termination Fee”). If , by wire transfer of immediately available funds to one or more accounts designated in writing by Parent, (x) Parent terminates this Agreement in the case of termination pursuant to Section 7.1(d)(iiclause (i) due to an intentional breach by the Company and (y) prior to any such terminationabove, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after Business Days of the date of receipt such termination, (y) in the case of Parent’s clause (ii) above, concurrently with or prior to the date of such termination notice. For purposes and (z) in the case of this Section 7.3clause (iii) above, not later than the term “Takeover second Business Day following the date on which Company consummates the transaction with respect to the Outstanding Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the no event that this Agreement is terminated by Parent or the shall Company pursuant be required to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by on more than one occasion whether or not the CompanyCompany Termination Fee may be payable at the same or at different times and/or based upon the occurrence of different events.
(c) Each In the circumstances in which the Company Termination Fee is paid in accordance with Section 7.3(a), Parent’s receipt of the CompanyCompany Termination Fee from Company pursuant to Section 7.3(a) shall, Parent subject to Section 7.3(d), be deemed to be liquidated damages and not a penalty; provided, however, that nothing in this Section 7.3(c) shall limit the rights of Parent, Merger Sub acknowledges or Company under Section 8.11 and in no event shall a party’s liability for fraud or willful and material breach of this Agreement be so limited.
(d) The parties acknowledge that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement; accordingly, if Company fails to promptly pay the amount due pursuant to Section 7.3(a) and, to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against Company for the amount set forth in Section 7.3(a), then Company shall fail to pay the Expense Reimbursement Parent’s or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all Sub’s reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees) in connection with the collection under and enforcement of such suit. All amounts payable pursuant to this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company 7.3(d) shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay accrue interest on the amount of the payment at a rate equal to 300 basis points above the prime lending rate of Citibank N.A. (or its successors or assigns) published in the Wall Street Journal and in effect on the date of payment, with such interest being payable in respect of the payments period from the date that payment was payable hereunder. In originally required to be made pursuant to Section 7.3(a) through the date of payment.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated or deemed terminated as described in Section 7.3(a), Parent’s receipt of the Company Termination Fee pursuant to Section 7.3(a) shall, subject to Section 7.3(d), be the sole and exclusive remedy of Parent, Merger Sub and their respective Affiliates against Company, its Subsidiaries and any of their respective former, current, or future shareholders, directors, officers, Affiliates or agents for any loss or damages suffered as a result of any breach of any representation, warranty, covenant or agreement or the failure of the Merger to be consummated; provided, however, that nothing in this Section 7.3(e) shall limit the rights of Parent, Merger Sub or Company under Section 8.11 and in no event shall an amount more than one full Company Termination Fee a party’s liability for fraud or willful and material breach of this Agreement be payable by the Company pursuant to this Section 7.3so limited.
Appears in 2 contracts
Sources: Merger Agreement (Journal Media Group, Inc.), Merger Agreement (Gannett Co., Inc.)
Termination Fees. (a) In the event that If this Agreement is terminated: (iterminated by either the Company or Parent pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii) or by Parent pursuant to Section 7.1(d)(i9.1(c), and, after the date hereof and prior to the termination of this Agreement, the Company (i) receives or has received an Acquisition Proposal with respect to the Company or any Company Subsidiary that has been publicly announced or otherwise communicated to the Company Board prior to the time of the Company Stockholder Meeting (with respect to a termination under Section 9.1(b)(i)) or prior to the date of termination of this Agreement (with respect to a termination under Section 9.1(b)(iii) or Section 9.1(c)), and (ii) by before the date that is twelve (12) months after the date of termination of this Agreement, any transaction or series of related transactions included within the definition of an Acquisition Proposal is consummated or the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the a Company shall pay to Parent, by wire transfer, Subsidiary enters into an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Acquisition Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been madethat is later consummated, then the Company shall pay Parent pay, or cause to be paid, to Parent, subject to the Company provisions of Section 9.4(a), the Termination Fee at by wire transfer of same day funds to an account designated by Parent, not later than the closing consummation of the such transaction pursuant to the Takeover Proposalarising from such Acquisition Proposal or such executed Acquisition Agreement; provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.39.3(a), the term references to “Takeover Proposal20%” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Acquisition Proposal shall be deemed to be references to “50%.”
(b) In the event that If this Agreement is terminated by Parent or (i) the Company pursuant to Section 7.1(b)(iii9.1(e) and all other conditions set forth or (ii) Parent pursuant to Section 9.1(f), then, in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)each case, the Company shall pay pay, or cause to be paid, to Parent, subject to the provisions of Section 9.4(a), the Termination Fee by wire transfertransfer of same day funds to an account designated by Parent, an amount which shall not exceed $600,000 and which shall represent reimbursement either prior to or concurrently with the occurrence of documented out-of-pocket costs and expenses such termination (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event case of any such termination by the Company, Section 9.1(e)) or (ii) no later than within two (2) business days after the Company’s receipt Business Days of Parent’s such termination notice (in the event case of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii9.1(f), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company).
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Parties agree that:
(i) under no circumstances shall the Company be required to pay the Termination Fee on more than one occasion; and
(ii) if this Agreement is terminated under circumstances in which the Company is required to pay the Termination Fee pursuant to Section 9.3(a) or Section 9.3(b) and the Termination Fee is paid to Parent (or its designee), the payment of the Termination Fee will be the Parent Parties’ sole and exclusive remedy against the Company Parties arising out of or relating to this Agreement, except in the case of Fraud or a Willful Breach of this Agreement by any of the Company Parties.
(d) Each of the Company, Parent and Merger Sub Parties hereto acknowledges that (i) the agreements contained in this Section 7.3 9.3 are an integral part of Transactionsthe transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such amounts are due and payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amounts would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent would not enter into this Agreement. In Accordingly, if the event Company fails to timely pay any amount due pursuant to this Section 9.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 9.3, such that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) as published in effect The Wall Street Journal, Eastern Edition on the date of payment for the payments period from the date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee required to be payable made through the date such payment was actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (CatchMark Timber Trust, Inc.), Merger Agreement (Potlatchdeltic Corp)
Termination Fees. (a) In the event that (i) this Agreement is terminated: (i) terminated by Parent pursuant to Section 7.1(d)(i8.01(b)(ii) or Section 8.01(b)(iii); or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(i8.01(c)(ii), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay to Parent the Company Termination Fee at (A) as promptly as possible (but in any event within three (3) Business Days) following such termination in the closing case of a termination pursuant to clause (i) above; or (B) upon termination of this Agreement in the case of a termination pursuant to clause (ii) above. Other than with respect to claims for, or arising out of or in connection with an Intentional and Material Breach hereunder or Fraud, the one-time payment of the transaction pursuant to Company Termination Fee from the Takeover Proposal; providedCompany as provided in this Section 8.03(a), that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement together with any amounts payable pursuant to Section 7.1(d)(i8.03(d) (if any), shall be the sole and exclusive remedy available to Parent against the Company or any of its former, current or future equityholders, Affiliates, or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated under the circumstances in which the Company Termination Fee is payable under this Section 8.03(a), and, upon such payment of the Company Termination Fee, together with any amounts payable pursuant to Section 8.03(d) (if any), none of the Company’s or any of its former, current or future equityholders, Affiliates, or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, Parent may seek specific performance to cause the Company to consummate the transactions contemplated hereby in accordance with Section 9.12 or the payment of the Company Termination Fee pursuant to this Section 8.03, but in no event shall Parent be entitled to both (x) equitable relief ordering the Company to consummate the transactions contemplated hereby in accordance with Section 9.12 and (y) the payment of the Company Termination Fee pursuant to this Section 8.03. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that in no event shall the Company be required to pay the Company Termination Fee promptly, but in no event on more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of one occasion, whether pursuant to this Section 7.38.03(a), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%8.03(b) or otherwise.
(b) In the event that (i) at or prior to the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 8.01(d)(iii)) or at or prior to the time of such termination (in the case of a termination pursuant to Section 8.01(b)(i) or Section 8.01(d)(ii)), an Acquisition Proposal with respect to the Company is publicly proposed, disclosed or known, and this Agreement is terminated (A) by Parent pursuant to Section 8.01(b)(i) or (B) by Parent or the Company pursuant to Section 7.1(b)(iii8.01(d)(ii) or Section 8.01(d)(iii); provided that in the case of termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 8.01(d)(ii); (ii) such Acquisition Proposal is not irrevocably and all other conditions publicly withdrawn without qualification at or prior to the Company Stockholders’ Meeting, in the case of termination pursuant to Section 8.01(d)(iii), or at or prior to the time of termination, in the case of termination pursuant to Section 8.01(b)(i) or Section 8.01(d)(ii); and (iii) concurrently with or within twelve (12) months after any such termination, the Company or any of its Subsidiaries enters into a definitive agreement (which is ultimately consummated, whether during such twelve (12) month period or thereafter) with respect to, or otherwise consummates, any Acquisition Proposal with respect to the Company (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in Article VI (excluding the definition of “Acquisition Proposal” for all purposes under this Section 6.1(d) and Section 6.2(d8.03(b)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), then the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less as promptly as possible (but in any Expense Reimbursement previously paid by event within three (3) Business Days) following the consummation of such Acquisition Proposal. Other than with respect to claims for, or arising out of or in connection with an Intentional and Material Breach hereunder or Fraud, the one-time payment of the Company Termination Fee from the Company as provided in this Section 8.03(b), together with any amounts payable pursuant to Section 8.03(d) (if any), shall be the sole and exclusive remedy available to Parent against the Company or any of its former, current or future equityholders, Affiliates, or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated under the circumstances in which the Company Termination Fee is payable under this Section 8.03(b), and, upon such payment of the Company Termination Fee, together with any amounts payable pursuant to Section 8.03(d) (if any), none of the Company’s or any of its former, current or future equityholders, Affiliates, or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, Parent may seek specific performance to cause the Company to consummate the transactions contemplated hereby in accordance with Section 9.12 or the payment of the Company Termination Fee pursuant to this Section 8.03, but in no event shall Parent be entitled to both (x) equitable relief ordering the Company to consummate the transactions contemplated hereby in accordance with Section 9.12 and (y) the payment of the Company Termination Fee pursuant to this Section 8.03. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion, whether pursuant to Section 8.03(a), this Section 8.03(b) or otherwise.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained As used in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Agreement, “Company Termination Fee when due, the Company Fee” shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3mean $2,600,000.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Akoya Biosciences, Inc.), Agreement and Plan of Merger (Quanterix Corp)
Termination Fees. (a) In the event that this Agreement is terminated: (i) by If (1) (A) either Parent or the Company terminates this Agreement pursuant to Section 7.1(d)(i8.01(b)(i) (End Date) and, at the time of such termination, any of the conditions set forth in Section 7.01(b) (Required Approvals) (other than with respect to any Additional Approval), Section 7.03(d) (Absence of Burdensome Condition) (other than with respect to any Additional Approval) or, in connection with the Required Approvals other than any Additional Approval, Section 7.01(c) (No Legal Restraints) shall have not been satisfied, (B) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(ii) (Legal Restraint) (if, and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Approvals other than any Additional Approvals) or (iiC) by the Company terminates this Agreement pursuant to Section 7.1(c)(i8.01(c)(ii) (Parent Terminable Breach) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), then(B) and (C), at the time of such termination, all other conditions to the Closing set forth in Section 7.01(a) (Company Shareholder Approval), Section 7.01(c) (No Legal Restraints) (only in the case of clauses (A) and (C), and other than Legal Restraints arising in connection with the Required Approvals other than any Additional Approvals), Section 7.03(a) (Company Representations and Warranties), Section 7.03(b) (Company Covenants) and Section 7.03(c) (No Company MAE) shall have been satisfied or waived (except for (I) those conditions that by their nature are to be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such event under termination, (II) other than in the case of a termination in accordance with the foregoing clause (iA), those other conditions that are still capable of being satisfied or (III) those conditions that have not been satisfied as a result of a breach of this Agreement by Parent or Merger Sub), or (2) the Company terminates this Agreement pursuant to Section 8.01(c)(iii) (Parent Failure to Close), then Parent shall pay to the Company the Parent Termination Fee. Parent shall pay the Parent Termination Fee to the Company (to an account designated in writing by the Company) prior to or concurrently with such termination of this Agreement by Parent or no later than three (3) Business Days after the date of the applicable termination by the Company.
(ii) of If the Company terminates this Agreement pursuant to Section 7.3(a8.01(c)(i) (Superior Company Proposal) or Parent terminates this Agreement pursuant to Section 8.01(d)(i) (Company Adverse Recommendation Change), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (Parent the “Company Termination Fee”. The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to or concurrently with such termination of this Agreement by the Company pursuant to Section 8.01(c)(i) or no later than three (3) Business Days after the date of such termination of this Agreement by Parent pursuant to Section 8.01(d)(i). .
(iii) If (x1) either (A) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) (End Date) (but only if the Parent Termination Fee is not also payable under Section 8.02(b)(i) above) or Section 8.01(b)(iii) (No Company Shareholder Approval) or (B) Parent terminates this Agreement pursuant to Section 7.1(d)(ii8.01(d)(ii) due (Company Terminable Breach), (2) a Company Takeover Proposal shall have been publicly disclosed or made to an intentional breach by the Company after the date hereof, and not publicly withdrawn, (x) in the case of a termination pursuant to Section 8.01(b)(i) (End Date) or Section 8.01(d)(ii) (Company Terminable Breach), prior to the date of such termination, or (y) in the case of a termination pursuant to Section 8.01(b)(iii) (No Company Shareholder Approval), prior to any such termination, a Takeover Proposal has been made, then the date of the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; providedShareholders Meeting, that such closing occurs and (3) within 12 twelve (12) months after the termination date. If Parent of this Agreement, the Company shall have terminated this Agreement pursuant to Section 7.1(d)(i)entered into any Company Acquisition Agreement, or consummated any Company Takeover Proposal, then the Company shall pay the Company Termination Fee promptly, but to Parent (to an account designated in no event more than two writing by Parent) within three (23) business days Business Days after the earlier of the date of receipt of Parent’s termination noticethe Company enters into such Company Acquisition Agreement or consummates such transaction. For purposes of clause (3) of this Section 7.38.02(b)(iii), the term “Company Takeover Proposal” shall have the meaning assigned to such term in Section 5.25.03, except that all references therein to the applicable percentage in the definition of “Company Takeover Proposal” shall be “50.1%” rather than “20% shall be deemed to be references to 50%or more”.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 2 contracts
Sources: Merger Agreement (El Paso Electric Co /Tx/), Company Takeover Proposal
Termination Fees. (a) In the event that that:
(i) (A) this Agreement is terminated: (i) by Parent terminated pursuant to Section 7.1(d)(i9.1(c)(i) (as a result of the failure of the Minimum Condition) or Section 9.1(e) (provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 9.1(e)), (B) prior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) within one hundred eighty (180) days after such termination, the Company consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (other than Parent of an Affiliate thereof) or (2) the sale of more than thirty-five percent (35%) (in voting power) of the voting securities of the Company to the Person making such Acquisition Proposal or the sale of thirty-five percent (35%) or more (in fair market value) of the assets of the Company;
(ii) by the Company this Agreement is terminated pursuant to Section 7.1(c)(i9.1(c)(ii); or
(iii) this Agreement is terminated pursuant to Section 9.1(g), then, in any such event under clause (i) or (ii) of this Section 7.3(a)event, the Company shall pay to Parent, by wire transfer, Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $1,300,000 8,400,000 (the “Company "Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i"), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% which amount shall be deemed to be references to 50%payable in immediately available funds.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions Except as set forth in Article VI (excluding this Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)9.3, the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket all costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment including reasonable attorneys' fees and expenses) shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously be paid by the Companyparty incurring such expenses, whether or not any Transaction is consummated.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay all or any portion of the Expense Reimbursement or the Company Termination Fee when dueFee, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and also shall pay to Parent interest on such unpaid amount, commencing on the date that such amount of the payment becomes due, at a rate equal to 300 basis points above the prime rate of Citibank N.A. interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus two percent (or its successors or assigns2%).
(d) The expenses provided for in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.39.3 are not intended to be exclusive remedies with respect to any liability for a breach of this Agreement, and no party hereto shall be precluded from seeking damages or remedies or at law or in equity as a result of any such matter.
Appears in 2 contracts
Sources: Merger Agreement (Cable & Wireless PLC), Merger Agreement (Digital Island Inc)
Termination Fees. (a) In the event that that:
(i) (A) this Agreement is terminated: (i) by Parent terminated pursuant to Section 7.1(d)(i8.1(c)(i) (as a result of the failure of the Minimum Condition) or Section 8.1(e) (provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 8.1(e)), (B) prior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) within one hundred eighty (180) days after such termination, the Company consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (other than Parent of an 44 Affiliate thereof) or (2) the sale of more than fifteen percent (15%) (in voting power) of the voting securities of the Company or the sale of fifteen percent (15%) or more (in fair market value) of the assets of the Company to the Person making such Acquisition Proposal;
(ii) by the Company this Agreement is terminated pursuant to Section 7.1(c)(i8.1(c)(ii); or
(iii) this Agreement is terminated pursuant to Section 8.1(g), then, in any such event under clause (i) or (ii) of this Section 7.3(a)event, the Company shall pay to Parent, by wire transfer, Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $1,300,000 1,250,000 (the “Company "Termination Fee”). If (x") Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by plus Parent's actual out-of-pocket expenses incurred in connection with the Company and (y) prior to any such terminationTransactions, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% which amounts shall be deemed to be references to 50%payable in immediately available funds.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions Except as set forth in Article VI (excluding this Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)8.3, the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket all costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment including reasonable attorneys' fees and expenses) shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously be paid by the Companyparty incurring such expenses, whether or not any Transaction is consummated.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay all or any portion of the Expense Reimbursement or the Company Termination Fee when dueFee, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and also shall pay to Parent interest on such unpaid amount, commencing on the date that such amount of the payment becomes due, at a rate equal to 300 basis points above the prime rate of Citibank N.A. interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus two percent (or its successors or assigns2%).
(d) in effect on If paid, the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee and expenses provided for in this Section 8.3 are intended to be payable the sole and exclusive remedy with respect to any liability for a breach of this Agreement by the Company pursuant to (other than a willful and material breach of this Section 7.3Agreement by the Company).
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
Termination Fees. (a) In the event that this Agreement is terminated: that:
(i) (A) after the date hereof, an Alternative Proposal shall have been made known to the Company’s stockholders generally or, in the case of a termination by Parent pursuant to Section 7.1(d)(i8.1(e), otherwise made known or communicated to senior management or the Board of Directors of the Company, and not withdrawn and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(i) or, prior to the Offer Closing, by Parent pursuant to Section 8.1(e), and (C) the Company enters into a definitive agreement with respect to, or consummates any transaction contemplated by, any Alternative Proposal within twelve (12) months of the date this Agreement is terminated;
(ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company, as applicable, pursuant to Section 8.1(f), Section 8.1(g) or Section 8.1(h); or
(iii) this Agreement (A) is terminated by Parent pursuant to Section 8.1(i), but there shall not have been any Alternative Proposal made known to the Company’s stockholders generally or otherwise made known or communicated to senior management or the Board of Directors of the Company, in each case prior to such termination by Parent pursuant to Section 8.1(i) (but after the date hereof), and the Company enters into a definitive agreement with respect to, or consummates any transaction contemplated by, any Alternative Proposal within twelve (12) months of the date this Agreement is terminated or (B) is terminated by Parent pursuant to Section 8.1(i) and prior to such termination by Parent pursuant to Section 8.1(i) (but after the date hereof) an Alternative Proposal shall have been made known to the Company’s stockholders generally or otherwise made known or communicated to senior management or the Board of Directors of the Company; the Company shall pay to Parent a termination fee of $65,000,000 in cash (the “Termination Fee”), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion; provided, however, that for all purposes of this Section 8.2(a), all references to “15%” in the definition of “Alternative Proposal” shall be deemed to refer to “50%” instead.
(b) Any payment required to be made pursuant to clause (i) or clause (iii)(A) of Section 8.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or consummation of any transaction contemplated by, any Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); and any payment required to be made pursuant to clause (ii) or clause (iii)(B) of Section 8.2(a) shall be made to Parent promptly following termination of this Agreement (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); provided that in the event that any payment is required to be made pursuant to clause (ii) of Section 8.2(a) in connection with a termination of this Agreement by the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.1(h), the Company shall pay the Termination Fee to Parent, Parent at the same time as such termination. Any such payment shall be made by wire transfer, transfer of immediately available funds to an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination account to be designated by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, The Company and Parent and Merger Sub acknowledges acknowledge that the agreements contained in this Section 7.3 8.2 are an integral part of Transactionsthe transactions contemplated by this Agreement, and that, without these agreements, neither party would enter into this Agreement. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be The amounts payable by the Company pursuant to this Section 7.38.2 constitute liquidated damages and not a penalty and shall be the sole monetary remedy of Parent in the event of termination of this Agreement on the bases specified in this Section 8.2. In the event that the Company fails to pay when due any amounts payable under this Section 8.2, then (1) the Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with the collection of such overdue amount, and (2) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the prime rate published in The Wall Street Journal on the date such payment was required to be made plus three percent (3%).
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Termination Fees. (a) In the event that this Agreement is terminated: terminated by (i) by Company pursuant to (A) Section 6.1(d)(ii) [Parent Adverse Recommendation Change], or (B) Section 6.1(d)(iii) [Parent Non-Solicit Breach], (ii) Parent or Company pursuant to Section 6.1(b)(iv) [Parent Downvote] at a time when Company had the right to terminate this Agreement pursuant to Section 6.1(d)(ii) [Parent Adverse Recommendation Change], or (iii) Parent pursuant to Section 7.1(d)(i6.1(c)(iv) or [Parent Superior Proposal], then Parent shall pay to Company the Parent Termination Fee (iix) by in the Company pursuant to Section 7.1(c)(i), then, in any such event under case of clause (i) or clause (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 as promptly as possible (the “Company Termination Fee”). If but in any event within three (x3) Parent terminates this Agreement pursuant to Section 7.1(d)(iiBusiness Days) due to an intentional breach by the Company following such termination and (y) in the case of clause (iii), prior to any or concurrently with such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by (i) Parent pursuant to (A) Section 6.1(c)(ii) [Company Adverse Recommendation Change] or (B) Section 6.1(c)(iii) [Company Non-Solicit Breach], (ii) Parent or the Company pursuant to Section 7.1(b)(iii6.1(b)(iii) and all other conditions set forth in Article VI [Company Downvote] at a time when Parent had the right to terminate this Agreement pursuant to Section 6.1(c)(ii) [Company Adverse Recommendation Change], or (excluding iii) Company pursuant to Section 6.1(d6.1(d)(iv) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)[Company Superior Proposal], the then Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement Parent the Company Termination Fee (x) in the case of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur clause (i) concurrent with or clause (ii), as promptly as possible (but in any event within three (3) Business Days) following such termination and (y) in the case of clause (iii), prior to or concurrently with such termination.
(c) In the event that this Agreement is terminated by either Party pursuant to Section 6.1(b)(i) [Termination Date] and at the time of any such termination by termination, (i) the Company, or Parent Stockholder Approval shall not have been obtained and (ii) no later than two Company would have been permitted to terminate this Agreement pursuant to Section 6.1(d)(ii) [Parent Adverse Recommendation Change], and in each case of clauses (2i) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if and (ii) a Takeover Parent Acquisition Proposal has been made publicly proposed or otherwise publicly communicated to Parent’s stockholders or the Parent Board and publicly announced before remains outstanding at the time of the Parent Meeting, then Parent shall pay to Company the Parent Termination Fee as promptly as possible (but in any event within three (3) Business Days) following such termination.
(d) In the event that this Agreement is terminated by either Party pursuant to Section 6.1(b)(i) [Termination Date] and at the time of such termination, (i) the Company Requisite Shareholder Vote shall not have been obtained and (ii) Parent would have been permitted to terminate this Agreement pursuant to Section 6.1(c)(ii) [Company Adverse Recommendation Change], and in each case of clauses (i) and (ii) a Company Acquisition Proposal has been voted on by publicly proposed or otherwise publicly communicated to Company’s shareholders or the shareholders Company Board and remains outstanding at the time of the Company Meeting, then Company shall pay to Parent the Company Termination Fee as promptly as possible (but in any event within three (3) Business Days) following such termination.
(e) In the event that (i) prior to the Company Meeting, a Company Acquisition Proposal is publicly proposed or otherwise publicly communicated to Company, ’s shareholders or the Company Board and remains outstanding three (3) Business Days prior to the time of the Company Meeting and (ii) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the 6.1(b)(i) [Termination Date] or Section 6.1(b)(iii) [Company consummates a transaction Downvote] or by Parent pursuant to any Takeover Proposal Section 6.1(c)(i) [Company Terminable Breach] and concurrently with or within 12 months after any such termination datedescribed in clause (ii), Company or any Subsidiary of Company enters into a definitive agreement with respect to, or otherwise consummates, any Company Acquisition Proposal (substituting 50% for the 20% threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 6.3(e)), then concurrently with the closing of such transaction, the Company shall pay to Parent the Company Termination Fee less as promptly as possible (but in any Expense Reimbursement previously paid by event within three (3) Business Days) following the Companyearlier of the entry into such definitive agreement or consummation of such Company Acquisition Proposal.
(cf) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that (i) prior to the Company shall fail Parent Meeting, a Parent Acquisition Proposal is publicly proposed or otherwise publicly communicated to pay the Expense Reimbursement Parent’s stockholders or the Company Termination Fee when due, Parent Board and remains outstanding three (3) Business Days prior to the Company shall reimburse time of the Parent Meeting and Merger Sub for all reasonable costs and expenses actually incurred or accrued (ii) this Agreement is terminated by Parent or Merger Sub Company pursuant to Section 6.1(b)(i) [Termination Date] or Section 6.1(b)(iv) [Parent Downvote] or by Company pursuant to Section 6.1(d)(i) [Parent Terminable Breach] and concurrently with or within 12 months after any such termination described in clause (including reasonable expenses ii), Parent or any Subsidiary of counsel) Parent enters into a definitive agreement with respect to, or otherwise consummates, any Parent Acquisition Proposal (substituting 50% for the 20% threshold set forth in connection with the collection under and enforcement definition of this Section 7.3. If the Company fails to promptly make any payment required “Acquisition Proposal” for all purposes under this Section 7.3 and 6.3(f)), then Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on to Company the amount Parent Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the earlier of the payment at entry into such definitive agreement or consummation of such Parent Acquisition Proposal.
(g) As used in this Agreement, (i) “Company Termination Fee” shall mean a rate cash amount equal to 300 basis points above the prime rate of Citibank N.A. $127,000,000, and (or its successors or assignsii) in effect on the date the payments was payable hereunder. In no event “Parent Termination Fee” shall an mean a cash amount more than one full Company Termination Fee be payable by the Company pursuant equal to this Section 7.3$240,000,000.
Appears in 2 contracts
Sources: Arrangement Agreement (Chord Energy Corp), Arrangement Agreement (ENERPLUS Corp)
Termination Fees. (a) In the event that this Agreement is terminated: that:
(i) by Parent pursuant (A) a Third Party shall have made to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant directly to the Takeover Company’s stockholders a Competing Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent or any Competing Proposal shall have terminated this Agreement pursuant to Section 7.1(d)(i)been publicly made or disclosed, the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3Agreement, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(bB) In the event that this Agreement is subsequently terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b)(i) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent pursuant to (x) Section 8.1(d)(i) or (y) Section 8.1(d)(ii) as a result of a knowing and Merger Sub in connection with intentional breach of any covenant or agreement under this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, and any such Competing Proposal had not been withdrawn at least five (5) Business Days prior to the event giving rise to the termination of this Agreement, and (C) within twelve (12) months of such termination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into an Alternative Acquisition Agreement providing for the consummation of a Competing Proposal (which is subsequently consummated); provided, however, that for purposes of this Section 8.3, the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”; or
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(iii), then the Company shall, (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, or (B) in the case of clause (ii) above, no later than two (2) business days Business Days after the Companydate of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, the Termination Fee (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.3(c) and Section 9.9, Parent’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders full of the Company, this Agreement is terminated by Parent or the Company Termination Fee pursuant to Section 7.1(b)(iii8.3(a), together with any Enforcement Expenses, in circumstances where the Termination Fee is owed pursuant to Section 8.3(a), shall constitute the sole and exclusive remedy of Parent and Acquisition Sub against the Company consummates and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a transaction result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount(s) (in circumstances where the Termination Fee is owed pursuant to any Takeover Proposal within 12 months after such termination dateSection 8.3(a)), then concurrently with the closing none of such transaction, the Company Related Parties shall pay Parent have any further liability or obligation relating to or arising out of this Agreement or the Company Termination Fee less any Expense Reimbursement previously paid transactions contemplated by the Companythis Agreement.
(c) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable other party its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above two percent (2%) plus the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law (collectively, “Enforcement Expenses”).
Appears in 2 contracts
Sources: Merger Agreement (Mr. Cooper Group Inc.), Merger Agreement (Home Point Capital Inc.)
Termination Fees. (a) In the event that (i) this Agreement is terminated: (i) terminated by Parent Ranger pursuant to Section 7.1(d)(i8.01(c)(ii) or Section 8.01(c)(iii) or (ii) this Agreement is terminated by the Company Trooper pursuant to Section 7.1(c)(i8.01(c)(iv), then, then Trooper shall pay to Ranger (A) the Termination Fee (1) as promptly as possible (but in any event within three (3) Business Days) following such event under termination in the case of a termination pursuant to clause (i) above or (2) upon termination of this Agreement in the case of a termination pursuant to clause (ii) above and (B) the Expenses no later than three (3) Business Days after receipt of documentation supporting such Expenses. Ranger’s right to receive the one-time payment of the Termination Fee and the Expenses from Trooper as provided in this Section 7.3(a)8.03(a) shall be the sole and exclusive remedy available to Ranger against Trooper or any of its former, the Company shall pay current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by Ranger pursuant to Section 7.1(d)(ii8.01(c)(ii) due to an intentional breach or Section 8.01(c)(iii) or by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement Trooper pursuant to Section 7.1(d)(i8.01(b)(iv) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Company shall pay the Company Termination Fee promptlyand the Expenses, but none of Trooper’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. The parties hereto acknowledge and agree that in no event shall Trooper be required to pay the Termination Fee or the Expenses on more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%one occasion.
(b) In the event that (i) this Agreement is terminated by Parent or the Company Trooper pursuant to Section 7.1(b)(iii8.01(b)(ii) or Section 8.01(b)(iii) or (ii) this Agreement is terminated by Ranger pursuant to Section 8.01(c)(iv), then Ranger shall pay to Trooper (A) the Termination Fee (1) as promptly as possible (but in any event within three (3) Business Days) following such termination in the case of a termination pursuant to clause (i) above or (2) upon termination of this Agreement in the case of a termination pursuant to clause (ii) above and all other conditions (B) the Expenses no later than three (3) Business Days after receipt of documentation supporting such Expenses. Trooper’s right to receive the one-time payment of the Termination Fee and the Expenses from Ranger as provided in this Section 8.03(b) shall be the sole and exclusive remedy available to Trooper against Ranger or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by Trooper pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) or by Ranger pursuant to Section 8.01(c)(iv) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Termination Fee and the Expenses, none of Ranger’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. The parties hereto acknowledge and agree that in no event shall Ranger be required to pay the Termination Fee or the Expenses on more than one occasion.
(c) In the event that, prior to the Ranger Shareholders’ Meeting, an Acquisition Proposal with respect to Ranger is publicly proposed or publicly disclosed and this Agreement is terminated by Trooper or Ranger pursuant to Section 8.01(b)(i) or Section 8.01(d)(iii), then Ranger shall pay to Trooper the Expenses no later than three (3) Business Days after receipt following termination of documentation supporting such Expenses. If, concurrently with or within twelve (12) months after any such termination described in the immediately preceding sentence, Ranger enters into a definitive agreement with respect to, or otherwise consummates, any Acquisition Proposal with respect to Ranger (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in Article VI (excluding the definition of “Acquisition Proposal” for all purposes under this Section 6.1(d) and Section 6.2(d8.03(c)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company then Ranger shall pay to ParentTrooper the Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the consummation of such Acquisition Proposal. Trooper’s right to receive the one-time payment of the Termination Fee (if and when due) and the Expenses from Ranger as provided in this Section 8.03(c) shall be the sole and exclusive remedy available to Trooper against Ranger or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by wire transferTrooper or Ranger pursuant to Section 8.01(b)(i) or Section 8.01(d)(iii) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Termination Fee (if and when due) and the Expenses, none of Ranger’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.
(d) In the event that, prior to the Trooper Shareholders’ Meeting, an amount which Acquisition Proposal with respect to Trooper is publicly proposed or publicly disclosed and this Agreement is terminated by Trooper or Ranger pursuant to Section 8.01(c)(i) or Section 8.01(d)(iv), then Trooper shall not exceed pay to Ranger the Expenses no later than three (3) Business Days after receipt following termination of documentation supporting such Expenses. If, concurrently with or within twelve (12) months after any such termination described in the immediately preceding sentence, Trooper enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal with respect to Trooper (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 8.03(d)), then Trooper shall pay to Ranger the Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the consummation of such Acquisition Proposal. Ranger’s right to receive the one-time payment of the Termination Fee (if and when due) and the Expenses from Trooper as provided in this Section 8.03(d) shall be the sole and exclusive remedy available to Ranger against Trooper or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated by Trooper or Ranger pursuant to Section 8.01(c)(i) or Section 8.01(d)(iv) (including if terminated or terminable pursuant to one or more of such provisions), and, upon such payment of the Termination Fee (if and when due) and the Expenses, none of Ranger’s or any of its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.
(e) As used in this Agreement, “Termination Fee” shall mean $600,000 and which 46 million. As used in this Agreement, “Expenses” shall represent reimbursement of mean reasonable, documented out-of-pocket costs fees and expenses (including the costs and expenses of counsel) incurred or paid by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders behalf of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), party receiving payment thereof and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) its Affiliates in connection with the collection under transactions contemplated by this Agreement, or related to the authorization, preparation, negotiation, execution and enforcement performance of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentAgreement, the Company shall indemnify Parent for its in each case including all documented fees and expenses (including attorneys fees of law firms, commercial banks, investment banking firms, financing sources, accountants, experts and expenses) incurred in connection with consultants to such suit party and shall pay interest on its Affiliates; provided, that the aggregate amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was Expenses payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3not exceed $5,000,000.
Appears in 2 contracts
Sources: Merger Agreement (Wright Medical Group Inc), Merger Agreement (Tornier N.V.)
Termination Fees. (a) In the event that If this Agreement is terminated: terminated by:
(i) by (A) Parent pursuant to Section 7.1(d)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or (iiB) by either Parent or the Company pursuant to Section 7.1(c)(i), then, 7.1(b)(i) or Section 7.1(b)(iii) and in any such event under clause case (iI) or (ii) after the execution of this Section 7.3(a), Agreement and prior to such termination (or prior to the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (Stockholders’ Meeting in the “Company Termination Fee”). If (x) Parent terminates this Agreement case of termination pursuant to Section 7.1(d)(ii) due to 7.1(b)(iii)), an intentional breach by Acquisition Proposal shall have been publicly disclosed (or, in the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing case of the transaction termination pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(d)(i), otherwise made known to the Company shall pay Board) and not withdrawn (publicly, if publicly disclosed) and (II) within twelve (12) months after such termination, any Acquisition Proposal is consummated or the Company Termination Fee promptly, but in no event more than two enters into a definitive agreement with respect to any Acquisition Proposal that is subsequently consummated (2) business days after the date of receipt of Parent’s termination notice. For provided that for purposes of this Section 7.37.3(a)(i), the term references to “Takeover Proposalfifteen percent (15%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%.)”);
(bii) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(c)(ii); or
(iii) and all other conditions set forth Parent pursuant to Section 7.1(d)(ii); then, in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)any such case, the Company shall pay pay, or cause to be paid, to Parent the Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same-day funds to the account or accounts designated by Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement (A) in the case of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur clause (i) concurrent with termination above, on the same day as the consummation of the Acquisition Proposal contemplated therein, (B) in the event case of any such termination by the Company, or clause (ii) above, immediately prior to or substantially concurrently with such termination and (C) in the case of clause (iii) above, promptly, but in no event later than two (2) business days Business Days after the Company’s receipt date of Parent’s termination notice such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that in no event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or shall the Company pursuant be required to Section 7.1(b)(iii), and pay the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyon more than one occasion.
(c) Each of the Company, Parent and Merger Sub The Company acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that transactions contemplated by this Agreement, and (ii) without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company shall fail fails to timely pay the Expense Reimbursement or Termination Fee pursuant to this Section 7.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of the Termination Fee when dueset forth in this Section 7.3, the Company shall reimburse pay Parent and Merger Sub for all reasonable its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay (including reasonable attorneys’ fees), together with interest on the such amount of the payment at a an annual rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Exact Sciences Corp), Merger Agreement (Genomic Health Inc)
Termination Fees. (a) In the event that this Agreement is terminated: If:
(i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates prior to the termination of this Agreement pursuant to Section 7.1(d)(iiAgreement, any Competing Proposal (for purposes of this subsection, substituting 50% for the 15% thresholds set forth in the definition of Competing Proposal) due to an intentional breach by the Company is publicly proposed or publicly disclosed and not publicly withdrawn and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 8.1(b)) or by Parent pursuant to Section 8.1(e) and (z) within twelve (12) months after termination of this Agreement, the Company enters into any letter of intent, agreement in principle, acquisition agreement or other definitive agreement providing for any Competing Proposal or a transaction in respect of any Competing Proposal shall have been consummated; or
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(g); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(h); then in any such event the Company shall pay to Parent a fee payable in cash equal to $55,000,000 (the “Company Termination Fee”), and neither the Company nor any other person shall (subject to the provisions of Section 8.2) have any further liability to Parent or any other person with respect to this Agreement or the transactions contemplated hereby, such payment to be made (x) in the case of Section 8.3(a)(i), at the earlier of (A) when the Company enters into a letter of intent, agreement in principle, acquisition agreement or other definitive agreement providing for a transaction in respect of such Competing Proposal or (B) when a transaction in respect of such Competing Proposal is consummated; (y) in the case of Section 8.3(a)(ii), no later than two (2) Business Days after the termination of this Agreement or (z) in the case of Section 8.3(a)(iii), upon the termination of this Agreement; it being understood that in no event shall the Company be required to pay the fee referred to in this Section 8.3 on more than one occasion.
(b) If this Agreement is terminated by the Company pursuant to Section 8.1(b), Section 8.1(d), Section 8.1(i)(ii), Section 8.1(i)(iii), or Section 8.1(j) and immediately prior to such termination (i) all other conditions of the Offer Conditions and the condition set forth in Article VI (excluding Section 6.1(d7.1(b) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Offer Closing or the Closing, provided that such conditions are reasonably capable of being satisfied) and the Company is prepared to complete the Offer Closing and the Closing and (ii) Parent and Acquisition Sub have failed to complete the Offer Closing or the Closing by the respective date the Offer Closing or the Closing is required to have occurred pursuant to this Agreement as a result of the full amount of the Debt Financing failing to be funded or prospectively funded at the Offer Closing or the Closing (clauses (i) and (ii) collectively, a “Funding Failure”), the Company then Parent shall pay to Parentthe Company a fee payable in cash equal to $90,000,000 (the “Parent Termination Fee”), by wire transfer, an amount which and neither Parent nor any other person shall not exceed $600,000 and which shall represent reimbursement (subject to the provisions of documented out-of-pocket costs and expenses (including Section 8.2) have any further liability to the costs and expenses of counsel) incurred by Parent and Merger Sub in connection Company or any other person with respect to this Agreement and or the Transactions (transactions contemplated hereby, such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) to be made no later than two (2) business days Business Days after the Company’s receipt termination of Parent’s termination notice this Agreement; it being understood that in no event shall Parent be required to pay the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant fee referred to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest 8.3 on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3occasion.
Appears in 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
Termination Fees. (a) In the event that If:
(i) this Agreement is terminated: terminated pursuant to (iA) by Section 9.1(c)(ii) (Violation of No Solicitation), (B) Section 9.1(c)(iii) (Failure to Recommend or Change in Recommendation) or (C) Section 9.1(b)(iii) (No Company Stockholder Approval) if Parent has the right to terminate this Agreement pursuant to (1) Section 9.1(c)(ii) (Violation of No Solicitation) or (2) Section 9.1(c)(iii) (Failure to Recommend or Change in Recommendation) at the time of such termination of this Agreement; or
(ii) (A) this Agreement is terminated pursuant to Section 7.1(d)(i9.1(b)(i) (Outside Date), Section 9.1(b)(iii) (No Company Stockholder Approval) or Section 9.1(c)(i) (ii) Breach by the Company Company), (B) (1) in the case of a termination pursuant to Section 7.1(c)(i9.1(b)(i) (Outside Date) or Section 9.1(c)(i) (Breach by the Company), thena Takeover Proposal shall have been made to the Board of Directors of the Company or become publicly known, in any and not withdrawn, prior to the date of such event under clause (i) termination, or (ii2) in the case of this a termination pursuant to Section 7.3(a9.1(b)(iii) (No Company Stockholder Approval), a Takeover Proposal shall have been made to the Board of Directors of the Company or become publicly known, and not publicly withdrawn, prior to the date of the Company Stockholders Meeting, and (C) within 12 months of such termination, the Company enters into a definitive agreement with any third party to consummate, or consummates, a Takeover Proposal; then the Company shall pay pay, or cause to be paid, to Parent, by wire transfertransfer of immediately available funds, an amount equal to $1,300,000 18,340,000 (the “Company Termination Fee”). If ) (x) Parent terminates this Agreement in the case of termination pursuant to Section 7.1(d)(iiclause (i) due to an intentional breach by above, within two Business Days of the Company date of termination and (y) prior in the case of termination pursuant to any such terminationclause (ii) above, within two Business Days of the date of the first to occur of (I) the execution of a definitive agreement relating to a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing and (II) consummation of the a transaction pursuant relating to the a Takeover Proposal; providedprovided that, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For solely for purposes of this Section 7.39.3(a), the term “Takeover Proposal” shall have the meaning assigned to such term ascribed thereto in Section 5.27.5(f) (Company No Solicitation), except that all references therein to 2015% shall be deemed to be references changed to 50%.
(b) In the event that If:
(i) this Agreement is terminated by pursuant to (A) Section 9.1(d)(ii) (Violation of Parent No Solicitation), (B) Section 9.1(d)(iii) (Parent Change in Recommendation) or (C) Section 9.1(b)(iv) (No Parent Stockholder Approval) if the Company has the right to terminate this Agreement pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination Section 9.1(d)(ii) (Violation of Parent No Solicitation) or (2) Section 9.1(d)(iii) (Parent Change in Recommendation) at the event time of any such termination by the Company, or of this Agreement; or
(ii) no later than two (2A) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii9.1(b)(i) (Outside Date), and Section 9.1(b)(iv) (No Parent Stockholder Approval) or Section 9.1(d)(i) (Breach by Parent), (B) (1) in the Company consummates case of a transaction termination pursuant to any Section 9.1(b)(i) (Outside Date) or Section 9.1(d)(i) (Breach by Parent), a Parent Takeover Proposal shall have been made to the Board of Directors of Parent or become publicly known, and not withdrawn, prior to the date of such termination, or (2) in the case of a termination pursuant to Section 9.1(b)(iv) (No Parent Stockholder Approval), a Parent Takeover Proposal shall have been made to the Board of Directors of Parent or become publicly known, and not publicly withdrawn, prior to the date of the Parent Stockholders Meeting, and (C) within 12 months after of such termination datetermination, Parent enters into a definitive agreement with any third party to consummate, or consummates, a Parent Takeover Proposal, then concurrently with Parent shall pay to the closing Company, by wire transfer of such transactionimmediately available funds, an amount equal to $18,340,000 (the “Parent Termination Fee”) (x) in the case of termination pursuant to clause (i) above, within two Business Days of the date of termination and (y) in the case of termination pursuant to clause (ii) above, within two Business Days of the date of the first to occur of (I) the execution of a definitive agreement relating to a Parent Takeover Proposal and (II) consummation of a transaction relating to a Parent Takeover Proposal; provided that, solely for purposes of this Section 9.3(b), the Company term “Parent Takeover Proposal” shall pay have the meaning ascribed thereto in Section 7.19(f) (Parent the Company Termination Fee less any Expense Reimbursement previously paid by the CompanyNo Solicitation), except that all references to 15% shall be changed to 50%.
(c) Each of the Company, Parent and Merger Sub Parties acknowledges that the agreements contained in this Section 7.3 9.3 (Termination Fees) are an integral part of Transactions. In the event this Agreement, and that the Company shall fail to pay the Expense Reimbursement or (i) the Company Termination Fee when dueis not a penalty, the Company shall reimburse but rather is a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions and (ii) the Parent Termination Fee is not a penalty, but rather is a reasonable amount that will compensate the Company in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, each of which amounts would otherwise be impossible to calculate with precision. In addition, if any Party fails to pay in a timely manner any amount due pursuant to Section 9.3(a) (Termination Fees) or Section 9.3(b) (Termination Fees), as applicable, then (i) such Party shall reimburse the other Party for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys disbursements and fees and expensesof counsel) incurred in the collection of such overdue amount, including in connection with any related Proceedings commenced and (ii) such suit and Party shall pay to the other Party interest on the amount payable pursuant to Section 9.3(a) (Termination Fees) or Section 9.3(b) (Termination Fees) from and including the date payment of such amount was due to but excluding the date of actual payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2%. Notwithstanding anything to the payments was payable hereunder. In no event shall an amount more than one full contrary in this Agreement, (A) upon payment of the Company Termination Fee be payable by the Company pursuant to this Section 7.39.3 (Termination Fees), none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions and (B) upon payment of the Parent Termination Fee pursuant to this Section 9.3 (Termination Fees), none of Parent, any of the Parent Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lantheus Holdings, Inc.), Merger Agreement (Lantheus Holdings, Inc.)
Termination Fees. (a) In the event that this Agreement is terminated: (i) by If (A) either the Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii8.01(b)(i) due to an intentional breach by and, at the Company and (y) prior to any time of such termination, a Takeover Proposal has any of the conditions set forth in Section 7.01(c) or Section 7.01(d) shall have not been made, then satisfied and such failure to be satisfied arises solely in connection with the Company shall pay Required Statutory Approvals or the Parent Required Statutory Approvals, (B) either the Parent or the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated terminates this Agreement pursuant to Section 7.1(d)(i)8.01(b)(ii) (if, and only if, the Company shall pay applicable Legal Restraint giving rise to such termination arises solely in connection with the Company Termination Fee promptly, but in no event more than two Required Statutory Approvals or the Parent Required Statutory Approvals) or (2C) business days after if the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that Company terminates this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in the case of each of clauses (A), (B) and (C), at the time of such termination, all other conditions to the Closing set forth in Article VI (excluding Section 6.1(d) 7.01 and Section 6.2(d)) 7.02 shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the ClosingClosing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination, or those conditions that have not been satisfied as a result of a breach by Parent), then Parent shall pay to the Company a fee of $90,000,000 (the “Parent Termination Fee”) plus the Company Expenses.
(ii) If (A) the Company terminates this Agreement pursuant to Section 8.01(c)(i), (B) Parent terminates this Agreement pursuant to Section 8.01(d)(i) or Section 8.01(b)(iii) or (C) Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) or Parent terminates this Agreement pursuant to Section 8.01(d)(ii) based on a failure by the Company to perform its obligations, covenants and agreements under this Agreement and, in each case under this clause (C), (I) prior to such termination, a Company Acquisition Proposal shall have been made public or proposed publicly to the Company or the holders of the Company Common Stock and has not been withdrawn prior to the completion of the Company Shareholders Meeting and (II) at any time after the execution of this Agreement and prior to the expiration of the twelfth (12th) month after the termination of this Agreement, the Company shall have entered into a definitive Contract with respect to, or consummated, any Company Acquisition Proposal (substituting, for purposes of this Section 8.02(b)(ii), references to “twenty percent (20%)” in the definition of “Company Acquisition Proposal” with references to “fifty percent (50%)”), then, in the case of each of clauses (A), (B) and (C), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed Parent a fee of $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses 90,000,000 (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense ReimbursementCompany Termination Fee”)) plus the Parent Expenses. Such payment The Company shall occur pay any Company Termination Fee payable pursuant to clauses (iA) concurrent with termination in the event of any such termination by the Company, or (iiB) of this Section 8.02(b)(ii) no later than two (2) business days Business Days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders date of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), relevant termination and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the any Company Termination Fee less any Expense Reimbursement previously paid by the Company.
payable pursuant to clause (cC) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If 8.02(b)(ii) no later than the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount earlier of the payment at a rate equal execution of the definitive Contract with respect to 300 basis points above the prime rate relevant Company Acquisition Proposal or the consummation of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full relevant Company Termination Fee be payable by the Company pursuant to this Section 7.3Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Hawaiian Electric Co Inc), Merger Agreement (Nextera Energy Inc)
Termination Fees. (a) (i) In the event that this Agreement is terminated: validly terminated by either the Company or HR pursuant to Section 8.01(b)(i) or Section 8.01(b)(iii) or by HR pursuant to Section 8.01(c)(i) (provided that with respect to Section 8.01(b)(i) and Section 8.01(c)(i), the Requisite Company Stockholder Vote has not been obtained) and (i) a Company Takeover Proposal (or an intention (whether or not conditional) to make a Company Takeover Proposal) was publicly proposed or announced by Parent any Person (including, without limitation, the Company or the Person making the Company Takeover Proposal) or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) and not publicly withdrawn or abandoned as of such termination (in the case of a termination pursuant to Section 7.1(d)(i8.01(b)(i) or Section 8.01(c)(i)) or the time of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.01(b)(iii)), and (ii) by within twelve (12) months of such termination the Company pursuant to or any Subsidiary of the Company shall consummate a Company Takeover Proposal or enter into a definitive agreement for a Company 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 7.1(c)(i13(d) of the Exchange Act and the rules and regulations thereunder) that made the Company Takeover Proposal in sub-clause (i), then, in any on the date of consummation of such event under clause (i) or (ii) of this Section 7.3(a)Company Takeover Proposal, the Company shall pay or cause to Parent, by wire transfer, an amount equal be paid to $1,300,000 HR (the “Company Termination Fee”). If (xor its designees) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at by wire transfer of immediately available funds to an account designated in writing by HR (it being understood that the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i)Company, the Company OP and Merger Sub shall pay be deemed a single party for purposes of the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination noticeforegoing proviso). For purposes of this Section 7.38.03(a), each reference to “20%” or “80%” in the term definition of “Company Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references a reference to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) (A) after the date hereof, a bona fide Alternative Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Alternative Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated: terminated by the Company or Parent pursuant to (ix) Section 7.1(b)(i) and at the time of such termination the Company Stockholder Approval has not been obtained, (y) Section 7.1(b)(iii) (so long as the Alternative Proposal was publicly disclosed prior to, and had not been withdrawn at least ten (10) days prior to the Company Meeting) or (z) Section 7.1(d)(i), and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal within twelve (12) months of the date this Agreement is terminated (provided that for purposes of this Section 7.2(a)(i), the references to “20%” in the definition of Alternative Proposal shall be deemed to be references to “50%”); or
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i7.1(d)(ii), then, ; then in any such event under clause (i) or (ii) of this Section 7.3(a7.2(a), the Company shall pay to Parent, by wire transfer, an amount Parent a termination fee equal to $1,300,000 176 million in cash (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, it being understood that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event shall the Company be required to pay the Termination Fee on more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%one occasion.
(b) In the event that this Agreement is terminated by Parent or the Company Any payment required to be made pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur clause (i) concurrent of Section 7.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with termination in the event of any such termination by the Companyrespect to, or the consummation of, the transaction referred to therein (ii) no and in any event not later than two (2) business days Business Days after delivery to the Company’s receipt Company of Parent’s notice of demand for payment); any payment required to be made pursuant to clause (ii) of Section 7.2(a) shall be made to Parent promptly following termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(d)(ii) (and in any event not later than two (2) Business Days after delivery to the Company of notice of demand for payment), and the Company consummates a transaction pursuant such payment shall be made by wire transfer of immediately available funds to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid an account to be designated by the CompanyParent.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or Termination Fee required pursuant to this Section 7.2 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. In addition, if the Company Termination Fee shall fail to pay such fee when due, the Company shall reimburse also pay to Parent all of Parent’s reasonable costs and expenses (including reasonable attorneys’ fees) in connection with efforts to collect such fee. The Company acknowledges that the fees and the other provisions of this Section 7.2 are an integral part of the Merger and that, without these agreements, Parent would not enter into this Agreement.
(d) Each of the parties hereto acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement and that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub for all reasonable costs the efforts and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) resources expended and opportunities foregone while negotiating this Agreement and in connection with the collection under reliance on this Agreement and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount expectation of the payment at a rate equal consummation of the transactions contemplated hereby, which amount would otherwise be impossible to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3calculate with precision.
Appears in 1 contract
Sources: Merger Agreement (Fiserv Inc)
Termination Fees. Notwithstanding any other provision of this Agreement, (ai) In if, prior to the event that Exclusivity Period Start Date, this Agreement is terminated: (i) by Parent terminated pursuant to Section 7.1(d)(i8.1(e) or (ii) by and the Company pursuant has entered into a definitive agreement with respect to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) a Superior Proposal prior to any such termination, a Takeover Proposal has been madethe Exclusivity Period Start Date, then the Company shall pay to Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(iand Merger Sub or their designee(s), collectively, at or prior to such termination, a break-up fee of $25,000,000 (the Company shall pay the Company “Pre-Exclusivity Termination Fee promptly, but in no event more than two (2Fee”) business days after the date of receipt plus all of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) Merger Sub’s actual and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of reasonably documented out-of-pocket costs expenses and expenses fees (including the costs and expenses of counselreasonable attorneys’ fees) incurred by Parent, Merger Sub and their respective Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (the “Parent Expenses”), which amount shall not be greater than $7,500,000 and (ii) if this Agreement is terminated pursuant to Section 8.1(d)(ii) or Section 8.1(e) (other than as set forth in the preceding clause (i)) then the Company shall pay to Parent and Merger Sub in connection with this Agreement and the Transactions or their designee(s), collectively, at or prior to such termination, a break-up fee of $40,000,000 (such amount, the “Expense ReimbursementTermination Fee”). Such payment ) plus Parent Expenses, which amount shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later not be greater than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent$10,000,000. In addition, if this Agreement is terminated pursuant to Section 8.1(b)(iii) or Section 8.1(d)(i), then the Company shall pay to Parent and Merger Sub or their designee(s), the Parent Expenses, which amount shall not be greater than $10,000,000, immediately following such termination. Notwithstanding the foregoing, (X) if this Agreement is terminated pursuant to Section 8.1(b)(i), Section 8.1(b)(iii) or Section 8.1(d)(i), (Y) at the time of such termination a Takeover Company Acquisition Proposal has been made public and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii)not withdrawn, and the Company consummates a transaction pursuant to any Takeover Proposal (Z) within 12 months after such termination datetermination, either (A) a Company Acquisition Proposal is consummated or (B) the Company enters into a definitive agreement in respect of such a transaction, then concurrently with the closing of such transaction, the Company shall pay to Parent and Merger Sub, collectively, the Termination Fee plus Parent Expenses, which amount shall not be greater than $10,000,000, to the extent not previously paid to Parent and Merger Sub upon the date of the occurrence of the earliest event described in clauses (A) and (B). Any payment of Parent Expenses shall be made by the Company Termination Fee less any Expense Reimbursement previously paid within two Business Days after the date on which Parent provides the Company appropriate documentation of such fees and expenses. The parties hereto acknowledge that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by the Company.
(c) Each of this Agreement, that without these agreements the Company, Parent and Merger Sub acknowledges would not have entered into this Agreement and that the agreements contained in any amounts payable pursuant to this Section 7.3 8.2 do not constitute a penalty, but rather are an integral part of Transactions. In the event liquidated damages in a reasonable amount that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse will compensate Parent and Merger Sub for all reasonable costs the efforts and expenses actually incurred 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, which amount would otherwise be impossible to calculate with precision. The parties further agree that in the event any payment, as the case may be, of (a) the Pre-Exclusivity Termination Fee plus the Parent Expenses as contemplated in clause (i) above or accrued (b) the Termination Fee plus the Parent Expenses as contemplated in clause (ii) above, is made by the Company to Parent and Merger Sub pursuant to this Section 8.2, such payments shall be the exclusive remedy available to Parent and Merger Sub and, upon payment of such amounts by the Company, the Company shall have no further liability to Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 1 contract
Sources: Merger Agreement (Williams Scotsman International Inc)
Termination Fees. (a) In the event that If:
(i) Parent shall terminate this Agreement pursuant to Section 9.1(d);
(ii) (A) this Agreement is terminated: terminated by the Company or Parent pursuant to Section 9.1(b)(ii), (iB) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 7.1(d)(i9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and after the date hereof but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known, whether or not withdrawn, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (iiy) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or
(iii) the Company shall terminate this Agreement pursuant to Section 7.1(c)(i9.1(f). then in any case as described in clause (i), then(ii) or (iii) the Company shall pay (or cause to be paid) to Parent (by wire transfer of immediately available funds), (x) in any such event under the case described in clause (i) or (iiiii), $1,000,000,000 (the “Termination Fee”) not later than the date of termination of this Section 7.3(aAgreement and (y) in the case described in clause (ii), the Company shall pay (or cause to Parent, by wire transfer, be paid) an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to Fee not later than the date an intentional breach Acquisition Proposal is consummated or a definitive agreement is entered into by the Company and (y) prior to providing for any Acquisition Proposal, as long as such termination, a Takeover Acquisition Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that is consummated or such closing occurs definitive agreement is executed within 12 months after the date of termination date. If Parent shall have terminated of this Agreement pursuant to Section 7.1(d)(iAgreement; provided, however, that for the purpose of this clause (y), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein in the definition of Acquisition Proposal to 20% shall be deemed to be references instead refer to 50%.
(b) In the event that If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI 9.1(e), then Parent shall pay (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are cause to be satisfied at the Closing), paid) to the Company shall pay to Parent, (by wire transfer, transfer of immediately available funds) an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including equal to the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than Chevron Termination Fee within two (2) business days Business Days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing date of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companytermination.
(c) Each of the Company, Parent and Merger Sub party acknowledges that the agreements contained in this Section 7.3 10.5 are an integral part of Transactionsthe transactions contemplated by this Agreement, and that, without these agreements, no party would have entered into this Agreement. In the event that Accordingly, if the Company shall fail or Parent fails to pay the Expense Reimbursement or the Company Termination Fee when duetimely any amount due pursuant to this Section 10.5 and, in order to obtain such payment, the Company other party (the “Recipient”) commences a suit which results in a judgment against the party obligated to make such payment (the “Payor”) for the amount payable to the Recipient pursuant to this Section 10.5, the Payor shall reimburse Parent and Merger Sub for all pay to the Recipient its reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees and expenses) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the date such payment at a rate equal was required to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company made pursuant to this Section 7.3Agreement) plus three percent (3%).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Occidental Petroleum Corp /De/)
Termination Fees. (a) In the event that If this Agreement is terminated: validly terminated by:
(i) by The Company pursuant to Section 7.01(c)(i);
(ii) Parent pursuant to Section 7.1(d)(i7.01(d)(i); 829649.04-LACSR01A - MSW
(iii) Parent, if (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (iipublicly, if publicly disclosed), (B) by Parent terminates this Agreement pursuant to (x) Section 7.01(d)(ii) due to a breach of, or a failure to perform or comply with, one or more covenants or agreements of the Company under this Agreement following the making of such Company Takeover Proposal, and (C) within twelve (12) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(iv), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”);
(iv) Either Parent or the Company pursuant to Section 7.1(c)(i7.01(b)(i) and in any such case of this Section 7.03(a)(iv), (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed) and (B) within twelve (12) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(iv), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”); or
(v) Either Parent or the Company pursuant to Section 7.01(b)(iii) and in any such case of this Section 7.03(a)(v), (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed) and (B) within twelve (12) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(v), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”); then, in any such event under clause (i) or (ii) of this Section 7.3(a)case, the Company shall pay to Parent, by wire transfer, an amount equal to Parent a fee of $1,300,000 128,855,000 in cash (the “Company Termination Fee”). If .
(xb) Parent terminates All payments under this Agreement pursuant to Section 7.1(d)(ii) due 7.03 shall be made by wire transfer of immediately available funds to an intentional breach account designated in writing by Parent, (i) in the Company and (ycase of Section 7.03(a)(i) above, immediately prior to any or substantially concurrently with such termination, a Takeover Proposal has been made(ii) in the case of Section 7.03(a)(ii) above, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more later than two five (25) business days Business Days after the date of receipt such termination, and (iii) in the case of Parent’s termination notice. For purposes Section 7.03(a)(iii), Section 7.03(a)(iv), or Section 7.03(a)(v) 829649.04-LACSR01A - MSW above, on the earlier to occur of (x) the date of entry of a definitive agreement and (y) the date on which a Company Takeover Proposal is consummated.
(c) The provisions of this Section 7.37.03 are an integral part of the transactions contemplated by this Agreement and, without such provisions, the term “Takeover Proposal” shall Parties would not have entered into this Agreement; accordingly, if the meaning assigned Company fails to such term in Section 5.2, except that all references therein to 20% shall be deemed promptly pay or cause to be references paid any amount due pursuant to 50%.
(b) In the event this Section 7.03, and, in order to obtain such payment, Parent commences a suit that this Agreement is terminated by Parent or results in a judgment against the Company pursuant to Section 7.1(b)(iii) and all other conditions for the amount set forth in Article VI (excluding this Section 6.1(d) and Section 6.2(d)) shall have been satisfied 7.03 or waived (other than those conditions that by their nature are to be satisfied at the Closing)any portion thereof, the Company shall pay or cause to Parentbe paid to Parent its reasonable, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket out‑of‑pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the such amount of the payment or portion thereof at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) published by The Wall Street Journal in effect on the date such payment was required to be made through the payments was payable hereunderdate of payment, or such lesser rate as is the maximum permitted by applicable Law. Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that:
(i) If this Agreement is terminated under circumstances in which the Company is obligated to pay the Company Termination Fee under Section 7.03(a), upon payment of the Company Termination Fee, the Company shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub or any of their respective Affiliates or Representatives, and payment of the Company Termination Fee and such costs and expenses by the Company shall be Parent’s sole and exclusive remedy for any Claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, suffered or incurred by Parent, Parent’s Subsidiaries and any other Person in connection with this Agreement, the transactions contemplated by this Agreement (and the termination thereof) or any matter forming the basis for such termination, and Parent and Merger Sub shall not have, and each expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity); and
(ii) In no event shall an amount the Company be required to pay the Company Termination Fee on more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.(1) occasion. 829649.04-LACSR01A - MSW
Appears in 1 contract
Termination Fees. (a) In the event that If this Agreement is terminated: (i) by Parent terminated pursuant to (a) Section 7.1(d)(i7.1(d) or (iib) by Section 7.1(e), and if the Company pursuant is not at that time entitled to terminate this Agreement by reason of Section 7.1(c)(i), then, in any such event under clause (i7.1(b) or (ii) of this Section 7.3(a7.1(c), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent promptly (and in any event within two days of receipt by the Company Termination Fee at of written notice from the closing Parent) pay to the Parent (by wire transfer of immediately available funds to an account designated by the Parent) concurrently with the execution of a definitive agreement with respect to any Alternative Proposal, a termination fee of $15,000,000 plus an amount equal to documented fees and expenses incurred by or on behalf of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub its affiliates and investors in connection with this Agreement and the Transactions up to an aggregate maximum amount of $2,500,000; PROVIDED, HOWEVER, that the Company shall not be obligated to pay such fee to the Parent if this Agreement is terminated pursuant to Section 7.1(d) unless (such amounta)(i) at the time of the Company Meeting, the “Expense Reimbursement”). Such payment shall occur Company has received an Alternative Proposal (ia "PENDING PROPOSAL") concurrent with termination in the event of any such termination by the Company, or (ii) no later than two prior to the termination of this Agreement the Board of Directors of the Company shall have withdrawn, or modified in a manner adverse to the Parent, its approval or recommendation of the Merger and the other Transactions, and (2b) business days within one year after the Company’s receipt termination of Parent’s termination notice in this Agreement, the event of Company enters into a definitive agreement or otherwise consummates with any person such or any other Alternative Proposal, and, PROVIDED, FURTHER, that if such termination by Parent. In additionfee becomes payable as a result of a termination pursuant to Section 7.1(d), if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by then such termination fee shall be paid promptly following the shareholders earlier of the Companyexecution of such definitive agreement providing for an Alternative Proposal and the consummation of an Alternative Proposal, as the case may be.
(b) If (i) this Agreement is terminated by Parent or the Company pursuant to (i) Section 7.1(b)(iii7.1(b) and (ii) Parent is not at that time entitled to terminate this Agreement by reason of Section 7.1(c) or 7.1(d), and (iii) Parent has not received an Acceptable FCC Order, and (iv) the conditions set forth in Sections 6.1(c) and 6.2(a), (b), (c) and (e) have been, or if the FCC Order had been obtained, would have been, otherwise satisfied, then Parent shall promptly (and in any event within two days of receipt by Parent of written notice from the Company) pay to the Company consummates a transaction pursuant (by wire transfer of immediately available funds to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid an account designated by the Company.
(c) Each a termination fee of $17,500,000; PROVIDED, HOWEVER, that Parent shall not be obligated to pay such fee to the Company if the sole reason that Parent and Sub have failed to obtain the Acceptable FCC Order is due to changes, after the date hereof, in the Communications Act or the rules and regulations of the CompanyFCC, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount effect as of the payment at a rate equal date hereof (except those which have been proposed in formal rulemaking proceedings and have been subject to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on public comment prior to the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3hereof).
Appears in 1 contract
Termination Fees. (a) In the event that If this Agreement is terminated: validly terminated by:
(i) by The Company pursuant to Section 7.01(c)(i);
(ii) Parent pursuant to Section 7.1(d)(i7.01(d)(i);
(iii) Parent, if (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (iipublicly, if publicly disclosed), (B) by Parent terminates this Agreement pursuant to (x) Section 7.01(d)(ii) due to a breach of, or a failure to perform or comply with, one or more covenants or agreements of the Company under this Agreement following the making of such Company Takeover Proposal, and (C) within twelve (12) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(iv), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”);
(iv) Either Parent or the Company pursuant to Section 7.1(c)(i7.01(b)(i) and in any such case of this Section 7.03(a)(iv), (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed) and (B) within twelve (12) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(iv), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”); or
(v) Either Parent or the Company pursuant to Section 7.01(b)(iii) and in any such case of this Section 7.03(a)(v), (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed) and (B) within twelve (12) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(v), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”); then, in any such event under clause (i) or (ii) of this Section 7.3(a)case, the Company shall pay to Parent, by wire transfer, an amount equal to Parent a fee of $1,300,000 128,855,000 in cash (the “Company Termination Fee”). If .
(xb) Parent terminates All payments under this Agreement pursuant to Section 7.1(d)(ii) due 7.03 shall be made by wire transfer of immediately available funds to an intentional breach account designated in writing by Parent, (i) in the Company and (ycase of Section 7.03(a)(i) above, immediately prior to any or substantially concurrently with such termination, a Takeover Proposal has been made(ii) in the case of Section 7.03(a)(ii) above, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more later than two five (25) business days Business Days after the date of receipt such termination, and (iii) in the case of Parent’s termination notice. For purposes Section 7.03(a)(iii), Section 7.03(a)(iv), or Section 7.03(a)(v) above, on the earlier to occur of (x) the date of entry of a definitive agreement and (y) the date on which a Company Takeover Proposal is consummated.
(c) The provisions of this Section 7.37.03 are an integral part of the transactions contemplated by this Agreement and, without such provisions, the term “Takeover Proposal” shall Parties would not have entered into this Agreement; accordingly, if the meaning assigned Company fails to such term in Section 5.2, except that all references therein to 20% shall be deemed promptly pay or cause to be references paid any amount due pursuant to 50%.
(b) In the event this Section 7.03, and, in order to obtain such payment, Parent commences a suit that this Agreement is terminated by Parent or results in a judgment against the Company pursuant to Section 7.1(b)(iii) and all other conditions for the amount set forth in Article VI (excluding this Section 6.1(d) and Section 6.2(d)) shall have been satisfied 7.03 or waived (other than those conditions that by their nature are to be satisfied at the Closing)any portion thereof, the Company shall pay or cause to Parentbe paid to Parent its reasonable, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the such amount of the payment or portion thereof at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) published by The Wall Street Journal in effect on the date such payment was required to be made through the payments was payable hereunderdate of payment, or such lesser rate as is the maximum permitted by applicable Law. Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that:
(i) If this Agreement is terminated under circumstances in which the Company is obligated to pay the Company Termination Fee under Section 7.03(a), upon payment of the Company Termination Fee, the Company shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub or any of their respective Affiliates or Representatives, and payment of the Company Termination Fee and such costs and expenses by the Company shall be Parent’s sole and exclusive remedy for any Claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, suffered or incurred by Parent, Parent’s Subsidiaries and any other Person in connection with this Agreement, the transactions contemplated by this Agreement (and the termination thereof) or any matter forming the basis for such termination, and Parent and Merger Sub shall not have, and each expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity); and
(ii) In no event shall an amount the Company be required to pay the Company Termination Fee on more than one full (1) occasion.
(d) Each Party acknowledges and agrees, on behalf of itself and its Affiliates, that the payment of the Company Termination Fee be payable by is not a penalty but instead is liquidated damages in a reasonable amount that shall compensate Parent, Merger Sub and their respective Affiliates in the circumstances in which the Company pursuant Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to this Section 7.3calculate with precision.
Appears in 1 contract
Termination Fees. (a) In the event that this Agreement is terminated: that:
(i) by Parent (1) this Agreement shall have been terminated pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates Section 8.1(b)(i) [End Date] (provided, in the case of a termination by Parent, Company had the right to terminate this Agreement pursuant to Section 7.1(d)(ii8.1(b)(i) due [End Date], or Company had the right to an intentional breach by the Company terminate this Agreement pursuant to Section 8.1(c)(i) [Parent Change in Recommendation], Section 8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants] or Section 8.1(c)(iii) [Parent Breach of No Solicitation]), (y) Section 8.1(b)(iii) [Parent No-Vote] or (z) Section 8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants], (2) Parent or any other Person shall have publicly disclosed or announced a Parent Alternative Proposal made on or after the date of this Agreement but prior to any the Parent Meeting, and such Parent Alternative Proposal has not been publicly withdrawn (A) in the case of clause (1)(x) above, prior to the End Date, (B) in the case of clause (1)(y) above, at least five (5) days prior to the date of the Parent Meeting, and (C) in the case of clause (1)(z) above, prior to a material breach that gives rise to Company’s termination right pursuant to Section 8.1(c)(ii), and (3) within twelve (12) months of such termination, a Takeover Parent Alternative Proposal has been madeis consummated or a Parent Alternative Acquisition Agreement is entered into (which Parent Alternative Proposal is thereafter consummated); provided that, for purposes of this clause (3), the references to “20%” in the definition of “Parent Alternative Proposal” shall be deemed to be references to “more than 50%” and, in the case of clause (1)(x), references in this clause (3) to “Parent Alternative Proposal” shall be with the same Person or Affiliate of such Person that made the Parent Alternative Proposal that was made and not publicly withdrawn as set forth in clause (2) or with any other Person that submitted a subsequent Parent Alternative Proposal in response to any then the pending Parent Alternative Proposal referenced in clause (2);
(ii) Company shall pay Parent the Company Termination Fee at the closing of the transaction have terminated this Agreement pursuant to the Takeover ProposalSection 8.1(c)(i) [Parent Change in Recommendation] or Section 8.1(c)(iii) [Parent Breach of No-Shop]; provided, that such closing occurs within 12 months after the termination date. If or
(iii) Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i)8.1(d)(ii) [Parent Superior Proposal]; then, Parent shall, (A) in the case of clause (i) above, upon the consummation of the Parent Alternative Proposal, pay Company shall pay (or one or more of its designees) the Company Parent Termination Fee promptlyless any amount previously paid under Section 8.3(b); (B) in the case of clause (ii) above, but in no event more than within two (2) business days Business Days after such termination, pay Company (or one or more of its designees) the date Parent Termination Fee; and (C) in the case of receipt clause (iii) above, upon the entry into a Parent Alternative Acquisition Agreement, pay Company (or one or more of Parent’s termination notice. For purposes of this Section 7.3, its designees) the term “Takeover Proposal” shall have the meaning assigned to such term Parent Termination Fee; in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, each case by wire transfer, an amount which transfer of immediately available funds to one or more accounts designated by Company; it being understood that in no event shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail be required to pay the Expense Reimbursement or the Company Parent Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full occasion. Following receipt by Company (or one or more of its designees) of the Parent Termination Fee be payable by the Company pursuant in accordance with this Section 8.3(a), Parent shall have no further liability with respect to this Section 7.3Agreement or the transactions contemplated herein to Company or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful Breach of this Agreement or Fraud.
Appears in 1 contract
Sources: Merger Agreement (Dril-Quip Inc)
Termination Fees. (a) In the event that that:
(i) (A) a Third Party shall have made a Competing Proposal after the date of this Agreement, (B) this Agreement is terminated: (i) subsequently terminated by the Company or Parent pursuant to Section 7.1(d)(i8.1(b)(iii) or and at the time of the Shareholders’ Meeting, such Competing Proposal was not withdrawn, and (iiC) by the Company pursuant to Section 7.1(c)(i), then, in any within twelve (12) months of such event under clause (i) or (ii) termination of this Section 7.3(a)Agreement, the Company shall pay enters into a Company Acquisition Agreement with respect to Parent, by wire transfer, an amount equal a Competing Proposal (whether in connection with the Competing Proposal referred to $1,300,000 in clauses (the “Company Termination Fee”). If (xA) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (yB) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposalor otherwise); provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.3(a)(i), the term references to “Takeover Proposaltwenty percent (20%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%.)”;
(bii) In this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii); then the Company shall, (A) in the case of clause (i) above, (I) no later than three (3) Business Days following the date the Company enters into a Company Acquisition Agreement with respect to a Competing Proposal, pay, or cause to be paid, at the direction of Parent, an amount equal to $8,535,000 (the “Termination Fee”) plus all expenses of Parent and its Affiliates not in excess of $3,658,000 (the “Expense Cap”), (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, pay, or cause to be paid, at the direction of Parent, an amount equal the Termination Fee plus all Expenses of Parent and its Affiliates not in excess of the Expense Cap; and (C) in the case of clause (iii) above, no later than three (3) Business Days after the date of such termination, pay, or cause to be paid, at the direction of Parent, an amount equal to the Termination Fee plus all Expenses of Parent and its Affiliates not in excess of the Expense Cap; provided, however, that in the case of the foregoing clauses (B) and (C), if such amount is payable in connection with a termination of this Agreement by Parent pursuant to Section 8.1(d)(ii)(A) relating to an Adverse Recommendation Change made by the Company’s board of directors within forty-five (45) calendar days following the Go Shop Period End Date with respect to an Excluded Party or a termination of this Agreement by the Company pursuant to Section 8.1(c)(ii) with respect to the Company entering into a definitive agreement with an Excluded Party within forty-five (45) calendar days following the Go Shop Period End Date, then the amount of the Termination Fee shall be $3,658,000 (and the Expense Cap shall remain unchanged); provided, further, that in no event that shall the Company be required to pay the Termination Fee or reimburse the Expenses of Parent and its Affiliates on more than one occasion. If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b)(iii), then the Company shall, no later than three (3) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied Business Days after the date of such termination, pay, or waived (other than those conditions that by their nature are cause to be satisfied paid, at the Closing), the Company shall pay to direction of Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement equal to all Expenses of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub its Affiliates not in connection with this Agreement and the Transactions excess of $2,438,000.
(such amount, the “Expense Reimbursement”). Such payment shall occur (ib) concurrent with termination in In the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or (i) the Company pursuant to Section 7.1(b)(iii8.1(c)(i) (in respect of a breach by Parent of its representations, warranties, covenants or other agreements set forth in this Agreement with respect to the Financing) or Section 8.1(c)(iii), and (ii) the Company consummates a transaction or Parent pursuant to any Takeover Proposal within 12 months after Section 8.1(b)(i) if, at the time of or prior to such termination date, then concurrently with the closing of such transactiontermination, the Company shall pay would have been entitled to terminate this Agreement pursuant to Section 8.1(c)(i) (in respect of a breach by Parent of its representations, warranties, covenants or other agreements set forth in this Agreement with respect to the Financing) or Section 8.1(c)(iii), or (iii) the Company Termination Fee less any Expense Reimbursement previously paid by pursuant to Section 8.1(c)(iv), then Parent shall, no later than three (3) Business Days after the Company.
(c) Each date of such termination, pay, or cause to be paid, at the direction of the Company, the Reverse Termination Fee; it being understood that in no event shall Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail be required to pay the Expense Reimbursement or the Company Reverse Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3occasion.
Appears in 1 contract
Sources: Merger Agreement (Hardinge Inc)
Termination Fees. (a) (i) In the event that (1) this Agreement is terminated: (i) by Parent shall have been terminated pursuant to Section 7.1(d)(i9.1(b)(i), Section 9.1(b)(iv), or Section 9.1(c)(i) due to a breach by Parent of Section 7.6, Section 7.8 or Section 7.12, (2) Parent or any other Person shall have publicly disclosed or announced a Parent Alternative Proposal made on or after the date of this Agreement but prior to the Parent Meeting, and such Parent Alternative Proposal has not been withdrawn at least five (5) days prior to the date of the Parent Meeting (or prior to the termination of this Agreement if there has been no Parent Meeting) and (3) within nine (9) months of such termination, such Parent Alternative Proposal is consummated; provided that, for purposes of this subclause (3), the references to “20%” in the definition of “Parent Alternative Proposal” shall be deemed to be references to “more than 80%”; (or) (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates have terminated this Agreement pursuant to Section 7.1(d)(ii9.1(c)(ii); then, Parent shall, (A) in the case of clause (i) above, upon the consummation of a Parent Alternative Proposal, and (B) in the case of clause (ii) above, within two (2) Business Days of such termination, pay the Company (or one or more of its designees) the Parent Termination Fee by wire transfer of immediately available funds to one or more accounts designated by the Company; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Following receipt by the Company (or one or more of its designees) of the Parent Termination Fee in accordance with this Section 9.3(a), Parent shall have no further liability with respect to this Agreement or the transactions contemplated herein to the Company or its Subsidiaries or Affiliates or any other Person, other than in respect of Willful and Material Breach of this Agreement or Fraud.
(b) (i) In the event that (1) this Agreement shall have been terminated pursuant to Section 9.1(b)(i), Section 9.1(b)(iii), or Section 9.1(d)(i) due to an intentional a breach by the Company of Section 7.5 or Section 7.12 (2) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the date of termination, and such Company Alternative Proposal has not been withdrawn at least five (5) days prior to the earlier of the Expiration Date or prior to the termination of this Agreement and (y3) prior to any within nine (9) months of such termination, a Takeover such Company Alternative Proposal has been madeis consummated; provided that, then for purposes of this subclause (3), the references to “20%” in the definition of “Company Alternative Proposal” shall pay Parent be deemed to be references to “more than 80%”; or (ii) the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i9.1(d)(ii); then, the Company shall, (A) in the case of clause (i) above, upon the consummation of a Company Alternative Proposal, and (B) in the case of clause (ii) above, within two (2) Business Days of such termination, pay Parent (or one or more of its designees) the Company Termination Fee by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee in accordance with this Section 9.3(b), the Company shall pay have no further liability with respect to this Agreement or the Company Termination Fee promptlytransactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, but other than in no event more than two (2) business days after the date respect of receipt of Parent’s termination notice. For purposes Willful and Material Breach of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%Agreement or Fraud.
(bc) In the event that this Agreement is shall have been terminated by Parent or the Company pursuant to Section 7.1(b)(iii9.1(b)(v) and all other conditions set forth in Article VI on or after 1 August 2022, Parent shall, within ten (excluding Section 6.1(d10) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)Business Days of such termination, pay the Company shall pay (or one or more of its designees) an amount equal to Parent, USD 50,000,000 by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement transfer of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination immediately available funds to one or more accounts designated by the Company. Following receipt by the Company (or one or more of its designees) of such amount in accordance with this Section 9.3(c), or (ii) Parent shall have no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before further liability with respect to this Agreement has been voted on by or the shareholders transactions contemplated herein to the Company or its Subsidiaries or Affiliates or any other Person, other than in respect of the Company, Willful and Material Breach of this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the CompanyFraud.
(cd) Each of If either party fails to timely pay an amount due pursuant to this Section 9.3, the Company, Parent and Merger Sub acknowledges defaulting party shall pay the non-defaulting party interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus 3% per annum through the date such payment is actually received.
(e) The parties acknowledge that the agreements contained in this Section 7.3 9.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement.
(f) The parties intend and shall use all reasonable endeavours to secure that the Company shall fail to pay the Expense Reimbursement or Parent Termination Fee and the Company Termination Fee when due(together, the Company “Termination Fees”), if paid, being compensatory in nature, shall reimburse Parent not be treated for VAT purposes as consideration for a taxable supply. If, however, a Termination Fee is treated by any Governmental Entity, in whole or in part, as consideration for a taxable supply and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub a Governmental Entity determines that VAT is due: (including reasonable expenses of counseli) in connection with the collection under and enforcement case where VAT is due from the payee of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences relevant Termination Fee (or the representative member of the group of which the payee is a suit for paymentparty), the Company Termination Fee shall indemnify Parent for its fees be inclusive of any such VAT; and expenses (including attorneys fees and expensesii) incurred in connection with such suit and shall pay interest on the case where VAT is due from the payor of the relevant Termination Fee (or the representative member of the group of which the payor is a party) under the reverse charge mechanism or under any similar mechanism outside the European Union or the United Kingdom, the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company relevant Termination Fee shall be payable by reduced to such amount so that the Company pursuant to this Section 7.3aggregate of the relevant Termination Fee and such reverse charge VAT equals the amount of the relevant fee had no such reverse charge VAT arisen.
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) (A) a Third Party shall have publicly announced a bona fide Competing Proposal after the date of this Agreement, (B) this Agreement is terminated: (i) subsequently terminated by the Company or Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i8.1(b)(iii), thenand, in any at the time of the Stockholders’ Meeting, such event under clause Competing Proposal was not withdrawn, and (iC) or within twelve (ii12) months of this Section 7.3(a)such termination, the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any consummates a transaction involving such termination, a Takeover Competing Proposal has been made, then the Company shall pay Parent the Company Termination Fee existing at the closing time of such termination (as the transaction pursuant same may be amended or modified from time to the Takeover Proposaltime); provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.3(a)(i), the term references to “Takeover Proposaltwenty percent (20%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%.)”;
(bii) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(d)(ii) or Section 8.1(d)(iii); or
(iii) (A) a Third Party shall have publicly announced a bona fide Competing Proposal after the date of this Agreement and (B) this Agreement is subsequently terminated by Parent pursuant to Section 8.1(d)(i) as a result of a knowing and intentional breach of covenant under this Agreement by the Company and, at the time of such knowing and intentional breach of covenant such Competing Proposal was not withdrawn; provided, however, that for purposes of this Section 8.3(a)(iii), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”; provided, further, that a failure of the Company to consummate the Merger when all other of the conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall VII to its obligations hereunder have been satisfied or waived (other than the obtaining of the Requisite Stockholder Approval and those conditions that by their nature terms are to be satisfied at the ClosingClosing and which are capable of satisfaction as of the date of such termination), shall constitute a “knowing and intentional breach” for purposes of this Section 8.3(a)(iii); then the Company shall pay to Parentshall, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement (A) in the case of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur clause (i) concurrent with termination in the event of any such termination by the Companyabove, or (ii) no later than two (2) business days Business Days following the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in the case of clause (iii) above, no later than two (2) Business Days after the Company’s receipt date of such termination, pay, or cause to be paid, at the direction of Parent, the Termination Fee (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.9, Parent’s termination notice in right to receive payment from the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders Company of the Company, this Agreement is terminated by Parent or the Company Termination Fee pursuant to Section 7.1(b)(iii8.3(a), in circumstances where the Termination Fee is owed pursuant to Section 8.3(a)(i) or Section 8.3(a)(ii), shall constitute the sole and exclusive remedy of Parent and Acquisition Sub against the Company consummates and its Subsidiaries and any of their respective, direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a transaction pursuant result of the failure of the transactions contemplated by this Agreement to any Takeover Proposal within 12 months after such termination datebe consummated or for a breach or failure to perform hereunder or otherwise, then concurrently with the closing and upon payment of such transactionamount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (except that the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyalso be obligated with respect to Section 8.3(c) and Section 8.6, as applicable).
(c) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement, (ii) each of the Termination Fee is not a penalty, but except as set forth in Section 8.3(b), is liquidated damages, in a reasonable amount that will compensate the Parent, in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 8.3, the Company shall fail pay Parent its costs and Expenses in connection with such suit, together with interest on such amounts at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to pay be made through the Expense Reimbursement date such payment was actually received, or such lesser rate as is the Company Termination Fee when duemaximum permitted by applicable Law.
(d) If this Agreement is terminated by Parent pursuant to Section 8.1(d)(iv), the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred Expenses it incurred, paid or accrued by Parent or Merger Sub (including reasonable expenses of counsel) suffered in connection with the collection under evaluation and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount investigation of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable transactions contemplated by the Company this Agreement, entry into this Agreement and all acts and things done pursuant to this Section 7.3Agreement prior to such termination.
Appears in 1 contract
Sources: Merger Agreement
Termination Fees. 77
(a) In the event that If this Agreement is terminated: (i) terminated by Parent pursuant to Section 7.1(d)(i) 6.1(d), or (ii) by either Parent or the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i6.1(b) or (iiSection 6.1(e) of this Section 7.3(a), the Company shall pay at a time when Parent would have been entitled to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates terminate this Agreement pursuant to Section 7.1(d)(ii6.1(d), then, within two (2) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months Business Days after the termination date. If Parent shall have terminated of this Agreement pursuant to Section 7.1(d)(i)Agreement, the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed cause to be references paid to 50%Parent the Termination Fee.
(b) In the event that If this Agreement is terminated (i)(A) by Parent or the Company pursuant to Section 7.1(b)(iii6.1(b) and all other conditions or Section 6.1(e) or (B) by Parent pursuant to Section 6.1(f) as a result of a breach of the Company’s covenants set forth in Article VI Section 4.2 or Section 4.4 and (excluding Section 6.1(dii)(A) and Section 6.2(d)) at or prior to the date of such termination, any Person shall have publicly announced an intention to make a Company Acquisition Proposal, or a Company Acquisition Proposal shall have been satisfied publicly disclosed, publicly announced, or waived otherwise publicly commenced, submitted or made at least five (5) Business Days prior to the Company Stockholder Meeting (or at least five (5) Business Days prior to the date of termination, in the case of an applicable termination other than those conditions pursuant to Section 6.1(e)); and (B) on or prior to the date that is twelve (12) months following the termination of this Agreement, either (1) a Company Acquisition Transaction is consummated or (2) a definitive agreement relating to a Company Acquisition Transaction is entered into by their nature are the Company (it being understood that, for purposes of this clause “(B),” each reference to “twenty percent (20%)” in the definition of “Company Acquisition Transaction” in Exhibit A shall be deemed to be satisfied at the Closinga reference to “fifty percent (50%)”), then, within two (2) Business Days after the earlier of the consummation of such Company Acquisition Transaction or entering into a definitive agreement relating to a Company Acquisition Transaction, the Company shall cause to be paid to Parent the Termination Fee.
(c) Any Termination Fee due and payable by the Company under this Section 6.3 shall be paid by wire transfer of cash in same-day funds to an account designated in writing by Parent. For the avoidance of doubt, the Termination Fee shall be payable by the Company only once and not in duplication even though the Termination Fee may be payable by the Company under one or more provisions hereof. If the Company fails to pay the Termination Fee when due and payable by the Company, then the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal) in effect on the date such amount was originally required to be paid, by wire transfer, an amount which and the Company shall not exceed $600,000 pay the reasonable and which shall represent reimbursement of documented out-of-pocket costs and expenses (including reasonable and documented legal fees and out-of-pocket expenses) in connection with any action, including the costs and expenses filing of counsel) incurred any lawsuit or other legal action, taken by Parent to collect payment. The parties agree that if the Termination Fee becomes payable by, and Merger Sub is paid by, the Company, then such Termination Fee shall be Parent’s sole and exclusive remedy for damages against the Company and its Affiliates and its and their Representatives in connection with this Agreement Agreement, and in no event in which the Transactions (such amountTermination Fee becomes payable by, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by and is paid by, the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by will Parent or any other Person seek to recover any other money damages or seek any other remedy from the Company pursuant to Section 7.1(b)(iii)or any other Person based on a claim in law or equity or otherwise in connection with this Agreement; provided, and the Company consummates a transaction pursuant to that nothing contained herein shall relieve any Takeover Proposal within 12 months after such termination dateparty from liability for any actual, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companycommon law fraud or Willful Breach.
(cd) Each of the Company, Parent and Merger Sub parties acknowledges that the agreements contained in this Section 7.3 6.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement, and that without these agreements the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of parties would not enter into this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Agreement.
Appears in 1 contract
Sources: Merger Agreement (Lemonade, Inc.)
Termination Fees. (a1) If this Agreement is terminated pursuant to Section 8(a)(iii)(3), (2) if this Agreement is terminated pursuant to Section 8(a)(iv)(3) or (3) (A) if this Agreement is terminated pursuant to Section 8(a)(ii)(2), Section 8(a)(ii)(3), Section 8(a)(iii)(1) or Section 8(a)(iii)(2) and, prior to such termination, an Acquisition Proposal has been made to the Company or any of its Representatives and has not been withdrawn, and (B) within twelve (12) months after such termination, the Company enters into a Definitive Transaction Agreement or consummates a transaction relating to an Acquisition Proposal, then the Company shall pay the Termination Fee to the Buyer (or its designee). Any Termination Fee due under this Section 8(d)(i) shall be paid to the Buyer (or its designee) by wire transfer of same day funds to an account designated in writing by the Buyer (x) in the case of a termination pursuant to clause (1) above, within three (3) Business Days after the date of such termination, (y) in the case of a termination pursuant to clause (2) above, concurrently with such termination and (z) in the case of a termination pursuant to clause (3) above, within three (3) Business Days of the earlier of (I) the execution of a Definitive Transaction Agreement and (II) consummation of a transaction relating to an Acquisition Proposal. As used herein the “Termination Fee” is an amount equal to $615,000.
(ii) If this Agreement is terminated by the Company pursuant to Section 8(a)(iv)(1) or Section 8(a)(iv)(2), then the Escrow Amount shall be released to the Company by the Escrow Agent, on behalf of the Buyer, in accordance with the Escrow Agreement.
(iii) In the event that this Agreement shall have been terminated under circumstances where the Termination Fee is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) payable by the Company pursuant or the Escrow Amount is payable by the Escrow Agent to Section 7.1(c)(i), then, the Company on behalf of the Buyer and the Buyer or the Company (as applicable) shall have received full payment of the Termination Fee or the Escrow Amount (as applicable) in any such event under clause (i) or (ii) of accordance with this Section 7.3(a8(d), the receipt of the full amount of the Termination Fee owing to the Buyer or the Escrow Amount owing to the Company (as applicable) shall pay to Parentbe the sole and exclusive remedy of the Buyer or the Company (as applicable) against the Company or the Buyer (as applicable), by wire transferits Affiliates and its and their respective Representatives in connection with this Agreement, an amount equal to $1,300,000 the Proposed Transactions (and the “Company Termination Fee”). If abandonment or termination thereof) or any matter forming the basis for such termination (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional including any breach by the Company and (y) prior of its representations, warranties or covenants contained in this Agreement or any certificate or other document delivered or entered into pursuant to any such terminationthis Agreement), a Takeover Proposal has been made, then except in the case of fraud or willful breach. Under no circumstances shall the Buyer or the Company shall pay Parent (or their designees), as applicable, be entitled to collect the Company full amount of the Termination Fee at or the closing Escrow Amount (as applicable) on more than one occasion and under no circumstances shall the Buyer or the Company, as applicable, be permitted or entitled to receive both a grant of specific performance of the transaction pursuant obligation to close and any money damages, including all or any portion of the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two or the Escrow Amount (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%as applicable).
(biv) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges The parties agree that the agreements contained in this Section 7.3 8(d) are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent Proposed Transactions and Merger Sub for all reasonable costs constitute liquidated damages and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences not a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3penalty.
Appears in 1 contract
Sources: Stock Purchase Agreement (Professional Diversity Network, Inc.)
Termination Fees. (a) In the event that that: (i) this Agreement is terminated: validly terminated by the Company or Parent pursuant to Section 7.1(b)(i) (iand Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 7.1(b)(i)) or Section 7.1(b)(iii); provided that (A) a bona fide Company Takeover Proposal shall have been publicly made, proposed or communicated by a third party after the date of this Agreement and not withdrawn prior to the time this Agreement is terminated and (B) within 12 months after the date of such termination, the Company enters into a definitive agreement to consummate a Company Takeover Proposal with the Person or Group that made the Company Takeover Proposal referred to in clause (A) above that is subsequently consummated; provided, however, that for purposes of this Section 7.3(a)(i), the references in the definition of Company Takeover Proposal to “20% or more” will be deemed to be references to “more than 50%”; (ii) this Agreement is validly terminated (A) by Parent pursuant to Section 7.1(d)(i7.1(c)(i) or (iiB) by the Company pursuant to Section 7.1(c)(i7.1(d)(i), ; or (iii) this Agreement is validly terminated by Parent pursuant to Section 7.1(c)(ii) in respect of a breach of Section 5.2; then, in any such event under clause (i), (ii) or (iiiii) of this Section 7.3(a), the Company shall will pay or cause to Parent, be paid the Company Termination Fee to Parent or its designee by wire transfertransfer of immediately available funds (in accordance with wire instructions provided by Parent for such payment) (x) in the case of Section 7.3(a)(ii)(A) or Section 7.3(a)(iii) within three Business Days after such termination (or, an if later, within two (2) Business Days after Parent has provided wire instructions for such payment), (y) in the case of Section 7.3(a)(ii)(B), simultaneously with such termination (or, if later, at such time as Parent has provided wire instructions for such payment), or (z) in the case of Section 7.3(a)(i), within three Business Days after consummation of the Company Takeover Proposal described in Section 7.3(a)(i) (or, if later, within two Business Days after Parent has provided wire instructions for such payment), it being understood that in no event will the Company be required to pay or cause to be paid the applicable Company Termination Fee on more than one occasion. As used herein, “Company Termination Fee” will mean a cash amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination40,750,000, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event net of any such termination withholding or deduction required by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companylaw.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) this Agreement is terminated: validly terminated by the Company or Parent pursuant to Section 7.01(b)(i) (ito the extent the Company Stockholder Approval was not obtained by the End Date) or Section 7.01(b)(iii) or by Parent pursuant to Section 7.1(d)(i7.01(c)(i); provided that, (A) at the time of such termination, (I) the Company shall not have been entitled to terminate this Agreement pursuant to Section 7.01(d)(i) and (II) none of Parent, Merger Sub I, Merger Sub II or any Sponsor is then in material breach of its representations, warranties, covenants or agreements under the Equity Funding Letters or the Termination Equity Commitment Letters, (B) (x) a bona fide Takeover Proposal has been publicly made, proposed or communicated (and not withdrawn), or (y) a bona fide Takeover Proposal has otherwise become known, disclosed or communicated to the Company or the Company Board, the Transaction Committee or any committee of the Company Board after the date hereof and prior to the termination of this Agreement, and (C) within twelve (12) months of the date this Agreement is terminated, the Company consummates, or enters into a definitive agreement with respect to, a Takeover Proposal that is later consummated (whether or not the Takeover Proposal is with the person or persons that made the Takeover Proposal referred to in clause (B)); provided, further, that, for purposes of clause (B) and (C) of this Section 7.03(a)(i), the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “50%”;
(ii) this Agreement is validly terminated by the Company pursuant to Section 7.1(c)(i7.01(d)(ii), ; or
(iii) this Agreement is validly terminated by Parent pursuant to Section 7.01(c)(ii); then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i)each case, the Company shall pay the Company Termination Fee promptlyto Parent or its designee by wire transfer of same-day funds, but (x) in the case of Section 7.03(a)(i), within five (5) Business Days after the consummation of, the Takeover Proposal referred to in clause (i)(C) above, (y) in the case of Section 7.03(a)(ii), simultaneously with such termination and (z) in the case of Section 7.03(a)(iii), within five (5) Business Days after such termination (it being understood that in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant be required to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3occasion).
Appears in 1 contract
Sources: Merger Agreement (Radius Global Infrastructure, Inc.)
Termination Fees. (a) In the event that this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the The Company shall pay to Parent, by wire transfer, an amount equal to Parent a fee of $1,300,000 118 million (the “Company Termination Fee”) if:
(i) the Company terminates this Agreement pursuant to Section 9.01(g) (Superior Company Proposal). If ;
(xii) Parent terminates this Agreement pursuant to Section 7.1(d)(ii9.01(d) due (Adverse Recommendation Change); or
(iii) (A) after the Agreement Date, a bona fide Company Takeover Proposal is proposed or announced or shall have become known to an intentional breach by the Company Board and such Company Takeover Proposal is not withdrawn (ypublicly, in the case of a Company Takeover Proposal that was publicly proposed or announced) at least three days (1) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent Outside Date in the Company Termination Fee at the closing case of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i9.03(a)(iii)(B)(x), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after prior to the date the Offer expires or is terminated in the case of Section 9.03(a)(iii)(B)(y)(I) or (3) prior to the date of receipt such material breach in the case of Parent’s termination notice. For purposes of this Section 7.39.03(a)(iii)(B)(y)(II), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(bB) In the event that this Agreement is terminated by (x) either Parent or the Company pursuant to Section 7.1(b)(iii9.01(b)(i) and all other conditions set forth in Article VI (excluding Section 6.1(dOutside Date) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination but in the event case of any such a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso in Section 9.01(b)(i) and in the case of a termination by either Parent or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in , only if at the event time of any such termination by Parent. In additiontermination, if a Takeover Proposal has the Regulatory Condition and the Offer Condition set forth in clause (i) of Exhibit A shall have been made and publicly announced before this Agreement has satisfied but the Minimum Tender Condition shall not have been voted on by the shareholders of the Company, this Agreement is terminated by satisfied) or (y) (I) either Parent or the Company pursuant to Section 7.1(b)(iii9.01(b)(iii) (Offer Conditions Fail) or (II) Parent pursuant to Section 9.01(c) (Material Breach) (with respect to clause (II), as a result of a breach by the Company of a covenant in this Agreement), and the Company consummates a transaction pursuant to any Takeover Proposal (C) within 12 months after such termination date, then concurrently with the closing of such transactiontermination, the Company shall pay Parent the consummates any Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement Takeover Proposal or the Company Termination Fee when due, the enters into a definitive agreement with respect to any Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Takeover Proposal that is subsequently consummated.
Appears in 1 contract
Termination Fees. (a) In The Company shall be required to pay to Parent the Company Termination Fee in any of the following events (provided that in no event that shall the Company be required to pay the Company Termination Fee on more than one occasion):
(i) this Agreement is terminated: (i) terminated by Parent pursuant to Section 7.1(d)(i8.1(f) (or by the Company or Parent pursuant to Section 8.1(b) or Section 8.1(d) at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 8.1(f));
(ii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(i8.1(h); or
(iii) (A) this Agreement is terminated by (1) Parent or the Company pursuant to Section 8.1(b), then(2) Parent or the Company pursuant to Section 8.1(d), or (3) Parent pursuant to Section 8.1(e); (B) (x) in the case of sub-clauses (1) and (3), any Person shall have made to the Company Board of Directors, or shall have made, disclosed or otherwise communicated or made known, a Competing Proposal after the date hereof and prior to such event under termination and such Competing Proposal has not been withdrawn prior to such termination or (y) in the case of sub-clause (i2), any Person shall have publicly made, disclosed or otherwise publicly communicated or made known, a Competing Proposal after the date hereof and prior to such termination and such Competing Proposal has not been publicly withdrawn prior to such termination and (C) or (ii) within 12 months following the date of this Section 7.3(a)such termination, the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior have entered into a definitive agreement with respect to any Competing Proposal or consummated a transaction contemplated by any Competing Proposal; provided that for purposes of this Section 8.3(a)(iii), each reference to “15%” in the definition of “Competing Proposal” shall be deemed to be a reference to “50%,” except that the reference to “15%” in clause (a) of such termination, definition shall be deemed to be a Takeover Proposal has been made, then the Company shall pay Parent reference to “90%.”
(b) Payment of the Company Termination Fee at the closing of the transaction pursuant shall be made to the Takeover Proposal; provided, that such closing occurs within 12 months after account or accounts designated by Parent by wire transfer of immediately available funds (i) in the termination date. If Parent shall have terminated this Agreement pursuant to case of Section 7.1(d)(i8.3(a)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) within three business days after the date of receipt such termination, (ii) in the case of Parent’s termination notice. For purposes Section 8.3(a)(ii), prior to or concurrently with such termination, and (iii) in the case of this Section 7.38.3(a)(iii), upon the earlier of the entry into of such definitive agreement with respect to, or the consummation of a transaction contemplated by, the term “Takeover applicable Competing Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(bc) In Parent shall be required to pay to the Company the Parent Termination Fee in any of the following events (provided that in no event that shall Parent be required to pay the Parent Termination Fee on more than one occasion):
(i) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b) and all other and, at or prior to the time of such termination, the conditions set forth in Article VI (excluding at least one of Section 6.1(d7.1(b) and or Section 6.2(d)7.1(c) shall not have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or satisfied;
(ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(c), and ;
(iii) this Agreement is terminated by the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination dateSection 8.1(g) or Section 8.1(i); or
(iv) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(b) and, then concurrently with at the closing time of such transactiontermination, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companywould have been entitled to terminate this Agreement pursuant to Section 8.1(g) or Section 8.1(i).
(cd) Payment of the Parent Termination Fee shall be made to the account or accounts designated by the Company by wire transfer of immediately available funds within three business days after the date of the relevant termination contemplated by Section 8.3(c).
(e) Each of the Company, Parent and Merger Sub parties acknowledges that the agreements contained in this Section 7.3 8.3 are an integral part of Transactionsthe Transactions and that, without these agreements, the parties would not enter into this Agreement. In the event that Accordingly, if the Company shall fail or Parent, as the case may be, fails to timely pay the Expense Reimbursement or the Company Termination Fee when dueamount due pursuant to this Section 8.3 and, in order to obtain such payment, the Company or Parent, as the case may be, commences a Legal Proceeding that results in a court judgment in its favor, such paying party shall reimburse Parent pay to the other party or parties, as applicable, such other party’s or parties’ reasonable and Merger Sub for all reasonable documented out-of-pocket costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counseland documented attorneys’ fees and expenses) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch Legal Proceeding, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the amount of such payment from the date such payment was required to be made under this Section 8.3 until the actual date of payment at a rate per annum equal to 300 basis points above the prime interest rate of Citibank N.A. (or its successors or assigns) published in effect The Wall Street Journal on the date such interest begins accruing.
(f) The parties further acknowledge and agree that none of the payments was Termination Fees is a penalty, but rather a fee payable hereunder. In no event shall an upon termination of this Agreement, which has been calculated as a reasonable amount more than one full that will compensate the Company or Parent, as the case may be, in the circumstances in which such applicable Termination Fee is payable, for the efforts and resources expended and opportunities foregone by such compensated party while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.
(g) Notwithstanding anything to the contrary in this Agreement, but without limiting or affecting Parent’s rights to specific enforcement expressly set forth in Section 9.13, in any circumstance in which this Agreement is terminated and Parent is entitled to the Company Termination Fee be payable by from the Company pursuant to Section 8.3(a), such termination of this Agreement and receipt of payment of the Company Termination Fee (together with any costs and expenses of Parent due under Section 8.3(e)) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Parent Related Parties against the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, employees, partners, shareholders, managers, members, affiliates, Representatives or agents or any of their respective assignees or successors or any former, current or future officers, directors, employees, partners, shareholders, managers, members, affiliates, Representatives, agents assignees or successors of any of the foregoing (collectively, the “Company Related Parties”) for any cost, expense, loss or damage suffered as a result of, or arising from or otherwise in connection with (i) this Agreement or any of the other agreements, instruments and documents contemplated hereby or executed in connection herewith or the transactions contemplated hereby or thereby, (ii) the failure of the Merger and the other Transactions to be consummated, (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise or (iv) any oral representation made or alleged to have been made in connection herewith or therewith (collectively, the “Company Transaction Related Matters”), and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, and none of Parent, Merger Sub, nor any other Parent Related Party shall seek or be entitled to seek or recover any other damages or seek or be entitled to any other remedy, whether based on a claim at law or in equity, in contract, tort or otherwise, with respect to any losses or damages suffered in connection with any Company Transaction Related Matters. Parent, on behalf of itself and the Parent Related Parties, acknowledges and agrees that in no event shall (x) the Company’s liability for its actual and intentional fraud or Willful Breach of its representations, warranties, agreements or covenants pursuant to Section 8.2 exceed an aggregate amount equal to (1) $5,000,000, in the case of any actual and intentional fraud or Willful Breach of the covenants contained in Section 5.1 or (2) the amount of the Company Termination Fee, in all other such cases, and (y) the Company be liable for both (1) damages for the Company’s actual and intentional fraud or Willful Breach of its representations, warranties, agreements or covenants in accordance with clause (x) of this sentence and (2) the Company Termination Fee.
(h) Notwithstanding anything to the contrary in this Agreement, but without limiting or affecting the Company’s rights to specific enforcement expressly set forth in Section 9.13, the termination of this Agreement under the circumstances specified in Section 8.3(c) and receipt of payment of the Parent Termination Fee pursuant to this Section 7.38.3 and any costs and expenses of the Company pursuant to Section 8.3(e) (and the obligations of the Guarantor under the Guarantee (in accordance with the terms and conditions thereof) with respect thereto), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company Related Parties against any of Parent, Merger Sub, the Guarantor or any of their respective former, current or future general or limited partners, stockholders, controlling Persons, direct or indirect equityholders, managers, members, directors, officers, employees, affiliates, affiliated (or commonly advised) funds, representatives or agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, direct or indirect equityholder, manager, member, director, officer, employee, affiliate, affiliated (or commonly advised) fund, representative, agent, assignee or successor of any of the foregoing (collectively, the “Parent Related Parties”) or the lenders, agents, underwriters, commitment parties and arrangers of any Debt Financing (including pursuant to the Debt Financing Documents or any engagement letters, credit agreements, loan agreements, joinders or indentures relating to any Debt Financing), together with their respective affiliates, and their and their respective affiliates’ officers, directors, employees, controlling persons, advisors, attorneys, agents and representatives and their successors and assigns, including any successors or assigns via joinder agreements or credit agreements related thereto (a “Lender Related Party”) for any cost, expense, loss or damage suffered as a result of, or arising from or otherwise in connection with (i) this Agreement, the Guarantee, the Equity Commitment Letter or any of the other agreements, instruments and documents contemplated hereby or executed in connection herewith or the transactions contemplated hereby or thereby, (ii) the failure of the Merger or the other Transactions to be consummated (including the funding of the Financing), (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise or (iv) any oral representation made or alleged to have been made in connection herewith or therewith (collectively, the “Parent Transaction Related Matters”). Except as expressly provided in the immediately preceding sentence, none of Parent, Merger Sub, the other Parent Related Parties or the Lender Related Parties shall have any liability or obligation relating to or arising out of or in connection with any Parent Transaction Related Matters, except that nothing shall relieve Parent of its obligations under Section 6.14(c), Section 6.14(d), Section 8.3(e) and Section 9.3. For the avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement, other than termination of this Agreement pursuant to Section 8.3(c) and the right of the Company to receive payment of the Parent Termination Fee, reimbursement of any costs and expenses of the Company under Section 8.3(e) and reimbursement or payment of all amounts due under Section 6.14(c), Section 6.14(d) and Section 9.3, none of the Parent Related Parties or Lender Related Parties shall have any further liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement, the Guarantee, the Financing, the Financing Documents or the transactions contemplated hereby or thereby, and none of the Company, the Company Subsidiaries nor any other Company Related Party shall seek or be entitled to seek or recover any other damages or seek or be entitled to any other remedy, whether based on a claim at Law or in equity, in contract, tort or otherwise, with respect to any losses or damages suffered in connection with any Parent Transaction Related Matters.
(i) Notwithstanding the foregoing, nothing in Section 8.3(g) or Section 8.3(h) shall limit the right of a party to bring or maintain any Legal Proceeding (i) for injunction, specific performance or other equitable relief to the extent provided in Section 9.13, unless and until this Agreement has been terminated and the applicable Termination Fee has been paid to such party in accordance with this Section 8.3 and (ii) against the other parties or their affiliates arising out of or in connection with a breach of the Confidentiality Agreement. Under no circumstances will a party be entitled to receive both a grant of specific performance and the applicable Termination Fee (if payable to such party).
Appears in 1 contract
Sources: Merger Agreement (Central European Media Enterprises LTD)
Termination Fees. (a) In the event that that:
(i) this Agreement is terminated: validly terminated (i) by Parent pursuant to Section 7.1(d)(i) or (iiA) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i7.1(h) or (iiB) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii7.1(g); or
(ii) due to an intentional breach by the Company and (yA) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of this Agreement and prior to the receipt of Parent’s termination notice. For purposes the Company Stockholder Approval, an Alternative Proposal (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in the definition of this Section 7.3, the term “Takeover Alternative Proposal” ”) (a “Qualifying Transaction”) shall have been publicly made and not withdrawn prior to the meaning assigned Company Stockholders’ Meeting or publicly disclosed or otherwise announced and not withdrawn prior to such term in Section 5.2the Company Stockholders’ Meeting, except that all references therein to 20% shall be deemed to be references to 50%.
(bB) In the event that thereafter this Agreement is validly terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(b) or Section 7.1(d) or by Parent pursuant to Section 7.1(f), and all other conditions set forth in Article VI (excluding Section 6.1(dC) and Section 6.2(d)) at any time on or prior to the nine (9)-month anniversary of such valid termination, the Company or any of its Subsidiaries shall have been satisfied entered into a definitive agreement for any Qualifying Transaction, which such Qualifying Transaction is subsequently consummated, whether during or waived following such nine (other than those conditions that by their nature are to be satisfied at the Closing)9)-month period, then, the Company shall pay Parent (or its designees) the Company Termination Fee in immediately available funds to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred one or more accounts designated by Parent and Merger Sub in connection writing (I) in the case of Section 7.3(a)(i)(A) above, prior to or substantially concurrently with such valid termination, (II) in the case of Section 7.3(a)(i)(B) above, within three (3) Business Days after valid termination of this Agreement and Agreement, or (III) in the Transactions case of Section 7.3(a)(ii) above, substantially concurrently with the consummation of a Qualifying Transaction.
(such amount, b) In the “Expense Reimbursement”). Such payment shall occur event that:
(i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is validly terminated (A) by the Company pursuant to Section 7.1(e) or Section 7.1(i) or (B) by Parent or the Company pursuant to Section 7.1(b)(iii7.1(b) and at such time the Company was entitled to terminate this Agreement pursuant to Section 7.1(e) or Section 7.1(i), and then Parent shall pay (or cause to be paid) to the Company consummates a transaction pursuant to any Takeover Proposal the Parent Termination Fee in immediately available funds within 12 months three (3) Business Days after such termination date, then concurrently with the closing date of such transaction, valid termination by Parent or the Company shall pay Parent to one or more accounts designated by the Company Termination Fee less any Expense Reimbursement previously paid by the Companyin writing.
(c) Each of the Company, Parent and Merger Sub party acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In this Agreement and that, without this Section 7.3, Parent (in the event that the Company shall fail to pay the Expense Reimbursement case of Section 7.3(a)) or the Company Termination Fee when due(in the case of Section 7.3(b)) would not have entered into this Agreement. Accordingly, if a party fails to promptly pay any amount due pursuant to Section 7.3(a) or Section 7.3(b), as applicable, the Company failing party shall reimburse Parent and Merger Sub for pay to the other party all reasonable fees, costs and expenses actually incurred or accrued by Parent or Merger Sub of enforcement (including reasonable attorneys’ fees as well as expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with any action initiated by such suit and shall pay party), together with interest on the amount of the payment Company Termination Fee or the Parent Termination Fee at a rate equal to 300 basis points above the prime lending rate of Citibank N.A. (or its successors or assigns) as published in the Wall Street Journal, in effect on the date such payment is required to be made (together with the payments was obligations of Parent under the final sentence of Section 5.11(e), the “Additional Obligations”). The parties further acknowledge that neither the Company Termination Fee nor the Parent Termination Fee shall constitute a penalty but is each liquidated damages, in a reasonable amount that will compensate each party in the circumstances in which the Company Termination Fee or the Parent Termination Fee, as applicable, is payable hereunderfor the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. In Each of the parties hereto acknowledges and agrees that in no event shall an amount will the Company or Parent be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one full occasion, whether or not the Company Termination Fee or the Parent Termination Fee, as applicable, may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence of different events.
(d) Except as expressly set forth in Section 7.3(c), and Section 8.2, upon the payment by the Company of the Company Termination Fee and the Additional Obligations, as and when required by Section 7.3(a), none of the Company, its Subsidiaries or their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives shall have any further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub or their respective Affiliates or Representatives, except pursuant to the Confidentiality Agreement. Payment of the Company Termination Fee pursuant to Section 7.3(a) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or Representatives or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their or their respective Affiliates’ respective former, current or future officers, directors, employees, partners, stockholders, optionholders, managers, members, other Representatives or Affiliates (collectively, “Parent Related Parties”) or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, any of the transactions contemplated by this Agreement or any matters forming the basis for such termination. Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 7.3(a) and the amounts, if any, due and owing under Section 7.3(c), Parent’s right to specific performance pursuant to Section 8.5 and Parent’s right to damages as a result of fraud or a Willful Breach by the Company of this Agreement (in each case, subject to the limitations set forth in Section 7.2 and Section 7.3) shall be the sole and exclusive remedy of the Parent Related Parties against the Company and its Subsidiaries and any of their or their respective Affiliates’ respective former, current or future officers, directors, employees, partners, stockholders, optionholders, managers, members, other Representatives or Affiliates (collectively, “Company Related Parties”) in respect of this Agreement, the Merger and the transactions contemplated hereby, and upon payment of such amounts, none of the Company Related Parties will have any further monetary liability or obligation to the Parent Related Parties relating to or arising out of this Agreement, the Merger or the transactions contemplated hereby (except that the parties hereto (or their Affiliates), as applicable, will remain obligated with respect to, and the parties hereto (or their Affiliates), as applicable, may be entitled to remedies with respect to, the Confidentiality Agreement). Except with respect to Parent’s right in connection with claims against the Company pursuant to the Confidentiality Agreement and subject in all respects to Section 7.2, Section 7.3 and Section 8.5 (including, in each case, the limitations set forth therein), upon the payment of the Company Termination Fee to the extent owed pursuant to Section 7.3(a) and the amounts, if any, due and owing under Section 7.3(c), none of the Company Related Parties shall have any further liability (whether in equity or at law, in contract, in tort or otherwise) with respect to this Agreement or the transactions contemplated hereby to the Parent Related Parties. For the avoidance of doubt, nothing in this Section 7.3(d) shall limit any remedies of Parent prior to such termination, including specific enforcement pursuant to Section 8.5.
(e) Except as expressly set forth in Section 7.3(c) and Section 8.2, upon the payment by Parent of the Parent Termination Fee and the Additional Obligations as and when required by Section 7.3(b), none of Parent, its Subsidiaries or their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives shall have any further liability with respect to this Agreement or the transactions contemplated by this Agreement to the Company or its Affiliates or Representatives, other than with respect to the Confidentiality Agreement. Payment of the Parent Termination Fee pursuant to Section 7.3(b) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company, any of its Affiliates or Representatives or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) or any matter forming the basis for such termination, and none of the Company Related Parties or any other Person shall be entitled to bring or maintain any claim, action or proceeding against Parent, Merger Sub or any of their respective Affiliates arising out of or in connection with this Agreement, any of the transactions contemplated by this Agreement or any matters forming the basis for such termination, except with respect to the Confidentiality Agreement. The Company’s right to receive payment from Parent of the Parent Termination Fee pursuant to Section 7.3(b) and any Additional Obligations pursuant to Section 7.3(c), the Company’s right to specific performance pursuant to Section 8.5, the Company’s rights in connection with claims against Apollo Management X, L.P. pursuant to the Confidentiality Agreement, the Company’s rights pursuant to and in accordance with the terms of the Guarantee and the Company’s right to damages as a result of fraud or a Willful Breach by Parent or Merger Sub of this Agreement (in each case, subject to the limitations set forth in Section 7.2 and Section 7.3) shall be the sole and exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss 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 or otherwise, and, except with respect to the Company’s right in connection with claims against Apollo Management X, L.P. pursuant to the Confidentiality Agreement, upon payment of the Parent Termination Fee and any Additional Obligations pursuant to Section 7.3(c), none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, nothing in this Section 7.3(e) shall limit any remedies of the Company prior to such termination, including specific enforcement pursuant to Section 8.5; provided that, in no event shall the Company be entitled to receive both (i) an order for specific performance or any other equitable remedy of the type contemplated by Section 8.5 to cause the consummation of transactions contemplated hereby (including the Merger) to occur and (ii) the Parent Termination Fee pursuant to Section 7.3(b).
(f) Notwithstanding anything to the contrary in this Agreement or the Transaction Documents, but subject to Section 8.5, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment of the Company Termination Fee and any other payment in connection with any Transaction Document or otherwise, of the Company Related Parties collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise) (A) under this Agreement or any other Transaction Document; (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (C) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, will not exceed under any circumstances an amount equal to (i) the Parent Termination Fee, plus (ii) the amounts, if any, due and owing under Section 7.3(c), if any, (collectively, the “Company Maximum Liability Amount”), except with respect to Parent’s rights in connection with claims against the Company pursuant to the Confidentiality Agreement.
(g) Notwithstanding anything to the contrary in this Agreement or the Transaction Documents, but subject to Section 8.5, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise of the Parent Related Parties collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise) (i) under this Agreement or any other Transaction Document; (ii) in connection with the failure of the Merger (including the Financing) or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (iii) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, will not exceed under any circumstances an amount equal to (A) the Parent Termination Fee plus (B) the Additional Obligations, if any, due and owing under Section 7.3(c) (collectively, the “Parent Maximum Liability Amount”), except with respect to the Company’s rights in connection with claims against Apollo Management X, L.P. pursuant to the Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (Barnes Group Inc)
Termination Fees. (a) In the event that If this Agreement is terminated: terminated by:
(i) by (A) Parent pursuant to Section 7.1(d)(i7.1(d)(i) on the basis of a breach of a covenant or (ii) by agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(c)(i), then, 7.1(b)(i) or Section 7.1(b)(iii) and (B) in any such event under clause case (iI) or (ii) after the execution of this Section 7.3(a), Agreement and prior to such termination (or prior to the Company shall pay to ParentShareholders’ Meeting, by wire transfer, an amount equal to $1,300,000 (in the “Company Termination Fee”). If (x) Parent terminates this Agreement case of termination pursuant to Section 7.1(d)(ii7.1(b)(iii)), a Company Acquisition Proposal shall have been publicly disclosed (or, in the case of termination pursuant to Section 7.1(b)(i) due or Section 7.1(d)(i), otherwise made known to an intentional breach by the Company Board) and not withdrawn (ypublicly, if publicly disclosed) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee termination (or at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than least two (2) business days Business Days prior to the Company Shareholders’ Meeting, in the case of termination pursuant to Section 7.1(b)(iii)) and (II) within twelve (12) months after such termination, any Company Acquisition Proposal is consummated or the date Company enters into a definitive agreement with respect to any Company Acquisition Proposal (regardless of receipt of Parent’s termination notice. For when or whether such transaction is consummated) (provided, however, that for purposes of this Section 7.37.3(a)(i)(B), the term references to “Takeover twenty percent (20%)” in the definition of “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to “fifty percent (50%)”);
(ii) the Company pursuant to Section 7.1(c)(ii); or
(iii) Parent pursuant to Section 7.1(d)(iii); then, in any such case, the Company shall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same-day funds to the account or accounts designated by Parent, (A) in the case of clause (i) above, on the same day as the earlier of any consummation of, or entry into a definitive agreement with respect to, the transaction contemplated therein, (B) in the case of clause (ii) above, immediately prior to or substantially concurrently with such termination and (C) in the case of clause (iii) above, promptly, but in no event later than two (2) Business Days after the date of such termination.
(b) In the event that If this Agreement is terminated by by:
(i) (A) the Company pursuant to Section 7.1(c)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(b)(iii7.1(b)(i) or Section 7.1(b)(iv) and (B) in any such case (I) after the execution of this Agreement and prior to such termination (or prior to the Parent Shareholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iv)), a Parent Acquisition Proposal shall have been publicly disclosed (or, in the case of termination pursuant to Section 7.1(b)(i) or Section 7.1(c)(i), otherwise made known to the Parent Board) and not withdrawn (publicly, if publicly disclosed) prior to such termination (or at least two (2) Business Days prior to the Parent Shareholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iv)) and (II) within twelve (12) months after such termination, any Parent Acquisition Proposal is consummated or Parent enters into a definitive agreement with respect to any Parent Acquisition Proposal (regardless of when or whether such transaction is consummated) (provided, however, that for purposes of this Section 7.3(b)(i)(B) the references to “twenty percent (20%)” in the definition of “Parent Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”);
(ii) Parent pursuant to Section 7.1(d)(ii);
(iii) the Company pursuant to Section 7.1(c)(iii); or
(iv) (A) Parent or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) (solely to the extent the Restraint is in respect of an Antitrust Law) and, at the time of such termination, the conditions to Closing set forth in Section 6.1(d) and/or Section 6.1(e) (solely to the extent the Restraint is in respect of an Antitrust Law) shall not have been satisfied or waived, but all other conditions set forth in Article VI (excluding Section 6.1(d) 6.1 and Section 6.2(d)) 6.2 shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the ClosingClosing (if such conditions are capable of being satisfied were the Closing to occur at such time)), or (B) by the Company pursuant to Section 7.1(c)(i) on the basis of a breach by Parent of its covenants and agreements contained in Section 5.4; then, in any such case, Parent shall pay, or cause to be paid, to the Company the Parent Termination Fee; provided, however, that in the case of a termination pursuant to clause (iv) of this Section 7.3(b), the Company shall, within seven (7) Business Days following such termination, irrevocably elect in writing to accept or decline the Parent Termination Fee, and failure to elect to accept the Parent Termination Fee within such period shall pay be deemed an election to Parent, decline the Parent Termination Fee and constitute an irrevocable waiver of the Parent Termination Fee. Any payments required to be made under this Section 7.3(b) shall be made by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement transfer of documented outsame-of-pocket costs and expenses (including day funds to the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination account or accounts designated by the Company, (A) in the case of clause (i) above, on the same day as the earlier of any consummation of, or entry into a definitive agreement with respect to, the transaction contemplated therein, (iiB) in the case of clause (ii) above, immediately prior to or substantially concurrently with such termination, (C) in the case of clause (iii) above, promptly, but in no event later than two (2) business days Business Days after the Company’s receipt date of such termination and (D) in the case of clause (iv) above, promptly, but in no event later than two (2) Business Days after the date of such irrevocable election to accept the Parent Termination Fee.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that (i) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion and (ii) in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(d) Notwithstanding anything to the contrary set forth in this Agreement, (i) Parent’s termination notice right to receive payment from the Company the Company Termination Fee pursuant to Section 7.3(a) shall, in circumstances in which the Company Termination Fee is payable hereunder and is paid in full, constitute the sole and exclusive remedy (other than in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made knowing and publicly announced before this Agreement has been voted on by the shareholders intentional breach of the Company, ’s obligations under this Agreement is terminated prior to such termination of the Agreement or fraud by Parent the Company in the making of the representations and warranties set forth herein) of Parent, Merger Sub Inc. and Merger Sub LLC against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or 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 or otherwise, and upon payment of such amounts when so payable, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to any amounts owing pursuant to Section 7.1(b)(iii7.3(e)), and (ii) the Company’s right to receive payment from Parent the Parent Termination Fee pursuant to Section 7.3(b) shall, in circumstances in which the Parent Termination Fee is payable hereunder and is paid in full, constitute the sole and exclusive remedy (other than, in the case of the Parent Termination Fee payable hereunder in respect of a termination contemplated by clauses (i), (ii) and (iii) of Section 7.3(b), in the event of knowing and intentional breach of Parent’s, Merger Sub Inc.’s or Merger Sub LLC’s obligations under this Agreement prior to such termination of the Agreement or fraud by Parent, Merger Sub Inc. or Merger Sub LLC in the making of the representations and warranties set forth herein) of the Company consummates against Parent and its Subsidiaries (including Merger Sub Inc. and Merger Sub LLC) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees (collectively, the “Parent Related Parties”), for all losses and damages suffered as a transaction result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amounts when so payable, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Parent shall also be obligated with respect to any amounts owing pursuant to any Takeover Proposal within 12 months after Section 7.3(e)).
(e) Each party acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement, and (ii) without these agreements, the parties hereto would not enter into this Agreement; accordingly, if (x) the Company fails to timely pay the Company Termination Fee pursuant to this Section 7.3 and, in order to obtain such termination datepayment, then concurrently with Parent commences a suit that results in a judgment against the closing Company for the payment of such transactionthe Company Termination Fee set forth in this Section 7.3, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay (including reasonable attorneys’ fees), together with interest on the such amount of the payment at a an annual rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company actually received, or such lesser rate as is the maximum permitted by applicable Law and (y) Parent fails to timely pay the Parent Termination Fee be payable by the Company pursuant to this Section 7.37.3 and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the payment of the Parent Termination Fee set forth in this Section 7.3, Parent shall pay the Company its costs and expenses in connection with such suit (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Hni Corp)
Termination Fees. (a) In the event that that:
(i) (A) a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal, or any Competing Proposal shall have been publicly made or disclosed, after the date of this Agreement, (B) this Agreement is terminated: subsequently terminated by (ix) by the Company or Parent pursuant to Section 7.1(d)(i8.1(b)(iii) or (iiy) by the Company Parent pursuant to Section 7.1(c)(i)8.1(d)(i) as a result of a knowing and intentional breach of any covenant or agreement under this Agreement by the Company, then, in and any such Competing Proposal had not been withdrawn at least five (5) Business Days prior to the event under clause (i) or (ii) giving rise to the termination of this Section 7.3(a)Agreement, and (C) within twelve (12) months of such termination of this Agreement, the Company shall pay to Parent, by wire transfer, consummates a transaction involving a Competing Proposal or enters into an amount equal to $1,300,000 Alternative Acquisition Agreement providing for the consummation of a Competing Proposal (the “Company Termination Fee”which is subsequently consummated). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.3(a)(i), the term references to “Takeover Proposaltwenty percent (20%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”;
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii), then the Company shall, (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in the case of clause (iii) above, no later than two (2) Business Days after the date of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, the Termination Fee (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion).
(b) In the event that this Agreement is terminated by Parent or (i) the Company pursuant to Section 7.1(b)(iii8.1(c)(i) and all other conditions set forth in Article VI (excluding or Section 6.1(d8.1(c)(iii) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) the Company or Parent pursuant to Section 8.1(b)(i) and, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(iii), then Parent shall, in the case of termination by (A) Parent, simultaneously with such termination or (B) the Company, no later than two three (23) business days Business Days after the Company’s receipt date of Parent’s termination notice in such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders direction of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Reverse Termination Fee less any Expense Reimbursement previously paid by (it being understood that in no event shall Parent be required to pay the CompanyReverse Termination Fee on more than one occasion).
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.3(e) and Section 9.9, the Company’s receipt in full of the Reverse Termination Fee pursuant to Section 8.3(b), together with any Enforcement Expenses or payments pursuant to Section 6.11 and Section 6.12 of any Debt Costs, in circumstances where the Reverse Termination Fee is owed pursuant to Section 8.3(b), shall constitute the sole and exclusive monetary remedy of the Company and its Subsidiaries against Parent, Acquisition Sub, the Guarantors, the Debt Financing Sources or any of their respective Affiliates and all of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Parent 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 or otherwise, and upon payment of such amount(s), none of the Parent Related Parties shall have any further liability or obligation to the Company, its Subsidiaries or any other Company Related Party relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Parent shall also be obligated to comply with the terms of the Confidentiality Agreement). The parties acknowledge and agree that while the Company may pursue a grant of specific performance in accordance with Section 9.9(b) and payment of the Reverse Termination Fee in no event shall the Company be entitled to obtain both (x) a grant of specific performance pursuant to Section 9.9(b) that results in the Closing occurring and (y) payment of the Reverse Termination Fee. Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of the Parent Related Parties in the event Parent or Acquisition Sub fails to consummate the transactions contemplated by this Agreement or otherwise fails to comply with or breaches any covenant or other obligation or representation and warranty in this Agreement shall not exceed the Parent Liability Limit.
(d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.3(e) and Section 9.9, Parent’s receipt in full of the Termination Fee pursuant to Section 8.3(a), together with any Enforcement Expenses, in circumstances where the Termination Fee is owed pursuant to Section 8.3(a), shall constitute the sole and exclusive remedy of Parent and Acquisition Sub against the Company and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (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 or otherwise, and upon payment of such amount(s) (in circumstances where the Termination Fee is owed pursuant to Section 8.3(a)), none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The parties acknowledge and agree that if Parent receives any payments from the Company in respect of any breach of this Agreement and thereafter Parent receives the Termination Fee pursuant to this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of such payments made by the Company prior to paying the Termination Fee in respect of any such breaches.
(e) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement, (ii) each of the Termination Fee and the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable other party its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above two percent (2%) plus the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In actually received, or such lesser rate as is the maximum permitted by applicable Law (collectively, “Enforcement Expenses”); provided, however, that in no event shall an amount more than one full Company Termination Fee be the Enforcement Expenses payable by the Company pursuant to this Section 7.3Company, on the one hand, or the Enforcement Expenses and Debt Costs payable by Parent and Acquisition Sub, on the other hand, exceed $7.5 million in the aggregate.
Appears in 1 contract
Sources: Merger Agreement (Corelogic, Inc.)
Termination Fees. (a) In the event that this Agreement is terminated: terminated by (i) by Parent pursuant to Section 7.1(d)(i(A) or (ii) by the Company pursuant to Section 7.1(c)(i)7.1(d)(ii) [Vitesse Adverse Recommendation Change], then, in any such event under clause or (iB) or Section 7.1(d)(iii) [Vitesse Non-Solicit Breach]; (ii) of this Vitesse or Company pursuant to Section 7.3(a), 7.1(b)(iv) [Vitesse Downvote] at a time when Company had the Company shall pay right to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates terminate this Agreement pursuant to Section 7.1(d)(ii) due [Vitesse Adverse Recommendation Change]; or (iii) Vitesse pursuant to an intentional breach by Section 7.1(c)(iv) [Vitesse Superior Proposal], then Vitesse shall pay to Company the Company Vitesse Termination Fee (x) in the case of clause (i) or clause (ii), as promptly as possible (but in any event within three (3) Business Days) following such termination and (y) in the case of clause (iii), prior to any or concurrently with such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent (i) Vitesse pursuant to (A) Section 7.1(c)(ii) [Company Adverse Recommendation Change] or the (B) Section 7.1(c)(iii) [Company Non-Solicit Breach]; (ii) Vitesse or Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI [Company Downvote] at a time when Vitesse had the right to terminate this Agreement pursuant to Section 7.1(c)(ii) [Company Adverse Recommendation Change]; or (excluding iii) Company pursuant to Section 6.1(d7.1(d)(iv) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)[Company Superior Proposal], the then Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement Vitesse the Company Termination Fee (x) in the case of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur clause (i) concurrent with or clause (ii), as promptly as possible (but in any event within three (3) Business Days) following such termination and (y) in the event case of any clause (iii), prior to or concurrently with such termination by the Company, or termination.
(iic) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in In the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, that this Agreement is terminated by Parent either Party pursuant to Section 7.1(b)(i) [Termination Date] and at the time of such termination, (i) the Vitesse Stockholder Approval shall not have been obtained; and (ii) Company would have been permitted to terminate this Agreement pursuant to Section 7.1(d)(ii) [Vitesse Adverse Recommendation Change], and in each case of clauses (i) and (ii) a Vitesse Acquisition Proposal has been publicly proposed or otherwise publicly communicated to Vitesse's stockholders or the Vitesse Board and remains outstanding at the time of the Vitesse Meeting, then Vitesse shall pay to Company the Vitesse Termination Fee as promptly as possible (but in any event within three (3) Business Days) following such termination.
(d) In the event that this Agreement is terminated by either Party pursuant to Section 7.1(b)(i) [Termination Date] and at the time of such termination, (i) the Company Requisite Shareholder Vote shall not have been obtained; and (ii) Vitesse would have been permitted to terminate this Agreement pursuant to Section 7.1(c)(ii) [Company Adverse Recommendation Change], and in each case of clauses (i) and (ii) a Company Acquisition Proposal has been publicly proposed or otherwise publicly communicated to Company's shareholders or the Company Board and remains outstanding at the time of the Company Meeting, then Company shall pay to Vitesse the Company Termination Fee as promptly as possible (but in any event within three (3) Business Days) following such termination.
(e) In the event that (i) prior to the Company Meeting, a Company Acquisition Proposal is publicly proposed or otherwise publicly communicated to Company's shareholders or the Company Board and remains outstanding three (3) Business Days prior to the time of the Company Meeting; and (ii) this Agreement is terminated by Vitesse or Company pursuant to Section 7.1(b)(i) [Termination Date] or Section 7.1(b)(iii) [Company Downvote] or by Vitesse pursuant to Section 7.1(c)(i) [Company Terminable Breach] and concurrently with or within 6 months after any such termination described in clause (ii), and Company or any Subsidiary of Company enters into a definitive agreement with respect to, or otherwise consummates, any Company Acquisition Proposal (substituting fifty percent (50%) for the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination datetwenty percent (20%) threshold set forth in the definition of "Acquisition Proposal" for all purposes under this Section 7.3(e)), then concurrently with the closing of such transaction, the Company shall pay Parent to Vitesse the Company Termination Fee less as promptly as possible (but in any Expense Reimbursement previously paid by event within three (3) Business Days) following the Companyearlier of the entry into such definitive agreement or consummation of such Company Acquisition Proposal.
(cf) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that (i) prior to the Company shall fail Vitesse Meeting, a Vitesse Acquisition Proposal is publicly proposed or otherwise publicly communicated to pay the Expense Reimbursement Vitesse's stockholders or the Vitesse Board and remains outstanding three (3) Business Days prior to the time of the Vitesse Meeting; and (ii) this Agreement is terminated by Vitesse or Company pursuant to Section 7.1(b)(i) [Termination Fee when dueDate] or Section 7.1(b)(iv) [Vitesse Downvote] or by Company pursuant to Section 7.1(d)(i) [Vitesse Terminable Breach] and concurrently with or within 6 months after any such termination described in clause (ii), Vitesse or any Subsidiary of Vitesse enters into a definitive agreement with respect to, or otherwise consummates, any Vitesse Acquisition Proposal (substituting fifty percent (50%) for the Company shall reimburse Parent and Merger Sub twenty percent (20%) threshold set forth in the definition of "Acquisition Proposal" for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required purposes under this Section 7.3 and Parent commences a suit for payment7.3(f)), the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and then Vitesse shall pay interest on to Company the amount Vitesse Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the earlier of the payment at entry into such definitive agreement or consummation of such Vitesse Acquisition Proposal.
(g) As used in this Agreement, (i) "Company Termination Fee" shall mean a rate cash amount equal to 300 basis points above the prime rate of Citibank N.A. $10 million, and (or its successors or assignsii) in effect on the date the payments was payable hereunder. In no event "Vitesse Termination Fee" shall an mean a cash amount more than one full Company Termination Fee be payable by the Company pursuant equal to this Section 7.3$15 million.
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Termination Fees. (a) In the event that this Agreement is terminated: :
(i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i7.2(b) (Company Adverse Recommendation Change), then, in any such event under clause (i) or ;
(ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii7.2(a) due to an intentional breach by the (Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Adverse Recommendation Change; Fiduciary Out for Superior Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant Material Breach of No-Solicitation Covenant; Willful and Material Breach of Covenant to Section 7.1(d)(iHold Stockholder Meeting), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.;
(biii) In the event that this Agreement is terminated (A) by Parent or the Company pursuant to Section 7.1(b)(iii7.1(b) and all other conditions (End Date) or Section 7.1(d) (Company Stockholder Approval Not Obtained) or by Parent pursuant to Section 7.1(f) (Company Breach), (B) prior to such termination but after the date of this Agreement, a Company Takeover Proposal (substituting “a majority” for the 20% threshold set forth in Article VI the definition of “Company Takeover Proposal”) (excluding Section 6.1(d) and Section 6.2(d)a “Qualifying Transaction”) shall have been satisfied made to the Company or waived any of its Subsidiaries or publicly announced and, in each case, not publicly withdrawn on a bona fide basis (other than those conditions that by their nature are and with respect to any termination pursuant to Section 7.1(d), at least ten Business Days prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof)), and (C) at any time on or prior to the 12-month anniversary of such termination, the Company or any of its Subsidiaries consummates any Qualifying Transaction or enters into a definitive agreement with respect to any Qualifying Transaction and such Qualifying Transaction is subsequently consummated, then in any such event the Company shall pay (or cause to be satisfied at paid) to Parent the ClosingCompany Termination Fee in immediately available funds (x) in the case of the foregoing clause (i), concurrently with such termination, (y) in the case of the foregoing clause (ii), within two Business Days after such termination and (z) in the case of the foregoing clause (iii), upon the completion of such Qualifying Transaction.
(b) If this Agreement is terminated by the Company pursuant to Section 7.1(d) (Company Stockholder Approval Not Obtained), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 Parent all reasonable and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and or Merger Sub in connection with this Agreement and the Transactions transactions contemplated by this Agreement, including the Merger up to $1,500,000 (such amount, the “Parent Expense Reimbursement”). Such payment shall occur , in immediately available funds.
(ic) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(g), and then Parent shall pay, or cause to be paid, to the Company consummates a transaction pursuant an amount equal to any Takeover Proposal within 12 months after $17,000,000 (such termination date, then concurrently with the closing of such transactionpayment, the Company shall pay “Parent Termination Fee”), in immediately available funds within two Business Days following such termination.
(d) Each of the Parties acknowledges that the Company Termination Fee less any or the Parent Termination Fee and the Parent Expense Reimbursement previously paid by payable pursuant to Section 7.4(a), Section 7.4(c) and Section 7.4(b), respectively, are not intended to be a penalty but rather are liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, in the circumstances in which such Company Termination Fee or Parent Termination Fee and the Parent Expense Reimbursement, as applicable, is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Parent be entitled to payment of the Company Termination Fee and the Parent Expense Reimbursement, or the Company to payment of the Parent Termination Fee, on more than one occasion.
(ce) Each of the Company, Parent and Merger Sub acknowledges The Parties acknowledge that the agreements contained in this Section 7.3 7.4 are an integral part of Transactionsthe transactions contemplated hereby, and that, without these agreements, the Parties would not have entered into this Agreement. In the event that Accordingly, if the Company shall fail fails to pay the Expense Reimbursement or in a timely manner the Company Termination Fee when dueor the Parent Expense Reimbursement, or Parent fails to pay in a timely manner the Parent Termination Fee, then the Company shall reimburse pay to Parent or Parent shall pay to the Company, as applicable, its reasonable and Merger Sub for all reasonable documented costs and expenses actually incurred or accrued (including reasonable attorneys’ fees) in connection with any Proceeding commenced by Parent or Merger Sub (including reasonable expenses of counsel) or the Company, as applicable, that results in connection with the collection under and enforcement of this Section 7.3. If a judgment against the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Termination Fee or the Parent Expense Reimbursement or against Parent for its fees and expenses the Parent Termination Fee (including attorneys fees and expenses) incurred in connection as applicable), together with such suit and shall pay interest on such amount from and including the date payment of such amount was due to but excluding the date of the actual payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum.
(f) Notwithstanding anything to the payments was payable hereunder. In no event shall an amount more than one full Company contrary set forth in this Agreement, but subject to (A) the Company’s rights under Section 8.5, and (B) the Company’s rights as a third party beneficiary of the Subscription Agreement pursuant to Section 9.20 of the Subscription Agreement, and except for (i) any liabilities or obligations arising under the Confidentiality Agreements, and (ii) any liabilities or obligations arising under any of the provisions of this Agreement that explicitly survive the termination of this Agreement pursuant to Section 7.3 (collectively, the “Retained Liabilities”), each of the Parties expressly acknowledges and agrees that (x) the Company’s right to terminate this Agreement and the payment of the Parent Termination Fee in full pursuant to Section 7.4(c), as applicable, shall constitute the sole and exclusive remedy of the Company and its Subsidiaries and their respective Affiliates and any of its or their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, other employees, agents or Affiliates (collectively, the “Company Related Parties”) against Parent, the Investors, Merger Sub, any other potential debt or equity financing source and any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates or any former, current or future general or limited partner, stockholder, equityholder, member, manager, director, officer, other employee, agent or Affiliate of any of the foregoing, (collectively, the “Parent Related Parties”) for all losses and damages in respect of this Agreement (or the termination thereof) or the transactions contemplated by this Agreement (or the failure of such transactions to occur for any reason or for no reason) or any breach (whether willful, intentional, unilateral or otherwise, including, for the avoidance of doubt, any Willful and Material Breach) of any covenant or agreement or otherwise in respect of this Agreement or any oral representation made or alleged to be payable made in connection herewith, and (y) upon the payment of the Parent Termination Fee to the Company pursuant to Section 7.4(c) following a termination of this Agreement by the Company pursuant to Section 7.1(g), (A) subject to Section 8.5 and except for the Retained Liabilities, none of the Parent Related Parties shall have any further Liability to any of the Company Related Parties relating to or arising out of this Agreement, the Parent Funding or the transactions contemplated hereby and (B) subject to Section 7.38.5 and except for the Retained Liabilities, none of the Company, its Subsidiaries nor any other Company Related Party shall seek to recover any other damages or seek any other remedy, whether based on a claim at law or in equity, in contract, tort or otherwise, with respect to any losses or damages suffered in connection with this Agreement or the transactions contemplated hereby or any oral representation made or alleged to be made in connection herewith. Subject to Section 8.5 and except for the Retained Liabilities, in no event shall Parent or Merger Sub be subject to (nor shall any Company Related Party seek to recover) monetary damages in excess of an amount equal to the Parent Termination Fee, in the aggregate, for any losses or other Liabilities arising out of or in connection with breaches by Parent or Merger Sub of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that any Company Related Party may have, including for a failure of the Closing to occur in breach of Section 1.2 or in respect of any oral representation made or alleged to be made in connection herewith or therewith.
(g) While the Company may pursue both a grant of specific performance or other equitable relief pursuant to Section 8.5(c) to cause the Closing to occur and, following termination of this Agreement, the payment of the Parent Termination Fee under Section 7.4(c), under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance or other equitable relief pursuant to Section 8.5(c) to cause the Closing to occur (so long as the Closing shall actually thereafter occur) and the Parent Termination Fee pursuant to Section 7.4(c) in connection with this Agreement or any termination of this Agreement. Notwithstanding anything to the contrary set forth herein, but subject to the immediately preceding sentence, nothing herein shall limit the Company’s right to receive the Parent Termination Fee pursuant to Section 7.4(c) notwithstanding that the Company has sought (but was not granted) specific performance or injunctive relief to cause the Closing to occur pursuant to Section 8.5(c) and the fact that the Company is entitled to receive the Parent Termination Fee under Section 7.4(c) shall not limit the Company’s rights to specific performance or injunctive relief to cause the Closing to occur pursuant to Section 8.5(c).
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) (A) a bona fide Alternative Proposal shall have been made known to the Company or shall have been made directly to its shareholders or any person shall have publicly announced an intention to make an Alternative Proposal, or an Alternative Proposal shall have otherwise become publicly known, and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated: (iterminated by the Company or Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Parent pursuant to Section 7.1(d)(i), and (C) the Company enters into, or submits to the shareholders of the Company for adoption, a definitive agreement with respect to any Alternative Proposal, or consummates any Alternative Proposal within twelve (12) months of the date this Agreement is terminated, which in each case, need not be the same Alternative Proposal that shall have been publicly announced or made known at or prior to termination of this Agreement (provided that for purposes of this Section 7.2(a)(i), the references to “20%” in the definition of Alternative Proposal shall be deemed to be references to “50%”); or
(ii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(i7.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii) or 7.1(d)(iii); then in any such event under clause (i), then(ii) or (iii) of this Section 7.2(a), the Company shall pay at the direction of Parent to any Person that is a U.S. person for U.S. federal income tax purposes, a termination fee of $225 million in cash (the “Termination Fee”), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(b) In the event that
(i) the Company shall terminate this Agreement pursuant to Section 7.1(c)(i) and (y) at the time of such termination there is no state of facts or circumstances that would reasonably be expected to cause the conditions in Section 6.1, Section 6.3(a) or Section 6.3(b) not to be satisfied on the End Date, or
(ii) the Company shall terminate this Agreement pursuant to Section 7.1(c)(iii), then in any such event under clause (i) or (ii) of this Section 7.3(a7.2(b), the Company Parent shall pay to Parent, by wire transfer, an amount equal to the Company a termination fee of $1,300,000 225 million in cash (the “Company Parent Termination Fee”). If , it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(xc) Any payment required to be made pursuant to clause (i) of Section 7.2(a) shall be made at the direction of Parent terminates to any Person that is a U.S. person for U.S. federal income tax purposes, promptly following the earliest of the execution of a definitive agreement with respect to, submission to the shareholders of, or the consummation of, any transaction contemplated by an Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to clause (ii) of Section 7.2(a) shall be made at the direction of Parent to any Person that is a U.S. person for U.S. federal income tax purposes, concurrently with, and as a condition to the effectiveness of, the termination of this Agreement by the Company pursuant to Section 7.1(c)(ii); any payment required to be made pursuant to clause (iii) of Section 7.2(a) shall be made at the direction of Parent to any Person that is a U.S. person for U.S. federal income tax purposes, promptly following termination of this Agreement by Parent pursuant to Section 7.1(d)(ii) due or (iii), as applicable (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment), and such payment shall be made by wire transfer of immediately available funds to an intentional breach account to be designated by Parent. Any payment required to be made pursuant to Section 7.2(b) shall be made to the Company promptly following termination of this Agreement by the Company (and (y) prior to in any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days Business Days after the Company’s receipt delivery to Parent of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iiidemand for payment), and the Company consummates a transaction pursuant such payment shall be made by wire transfer of immediately available funds to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid an account to be designated by the Company.
(cd) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee or Parent Expenses, or Parent shall fail to pay the Parent Termination Fee, required pursuant to this Section 7.2 when due, such fee and/or expenses shall accrue interest for the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest period commencing on the amount of date such fee or expenses, as the payment case may be, became past due, at a rate equal to 300 basis points above the prime rate of Citibank N.A. interest publicly announced by JPMorgan Chase Bank from time to time during such period, as such bank’s prime lending rate. In addition, if either party shall fail to pay such fee or expenses when due, such owing party shall also pay to the owed party all of the owed party’s costs and expenses (or its successors or assignsincluding reasonable attorneys’ fees) in effect connection with efforts to collect such fee or expenses. Each of Parent and the Company acknowledges that the fees and the other provisions of this Section 7.2 are an integral part of the Merger and that, without these agreements, Parent and the Company would not enter into this Agreement.
(e) Each of the parties hereto acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement and that neither the Termination Fee nor the Parent Termination Fee is a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, as the case may be, in the circumstances in which such Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the date expectation of the payments was payable hereunderconsummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall an amount more than one full Company Notwithstanding anything to the contrary in this Agreement, the Company’s right to receive payment of the Parent Termination Fee be payable by the Company from Parent pursuant to this Section 7.37.2 or the guarantee thereof pursuant to the Guarantee shall be the sole and exclusive remedy of the Company and its Subsidiaries against Parent, Merger Sub, the Guarantor and any of their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents for the loss suffered as a result of the failure of the Merger to be consummated, and upon payment of such amount, none of Parent, Merger Sub, the Guarantor or any of their former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) (A) a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal, or any Competing Proposal shall have been publicly made, announced or disclosed, after the date of this Agreement, (B) this Agreement is terminated: subsequently terminated by (ix) by the Company or Parent pursuant to Section 7.1(d)(i8.1(b)(iii) or (iiy) by the Company Parent pursuant to Section 7.1(c)(i)8.1(d)(i) as a result of a knowing and intentional breach of any covenant or agreement under this Agreement by the Company, then, in and any such Competing Proposal had not been withdrawn at least five (5) Business Days prior to the event under clause (i) or (ii) giving rise to the termination of this Section 7.3(a)Agreement, and (C) within twelve (12) months of such termination of this Agreement, the Company shall pay to Parent, by wire transfer, consummates a transaction involving a Competing Proposal or enters into an amount equal to $1,300,000 Alternative Acquisition Agreement providing for the consummation of a Competing Proposal (the “Company Termination Fee”which is subsequently consummated). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.3(a)(i), the term references to “Takeover Proposaltwenty percent (20%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%.)”;
(bii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii), then the Company shall, (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or concurrently with such termination, and (C) in the case of clause (iii) above, no later than two (2) Business Days after the date of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, the Termination Fee less any Company Expense Payment previously paid by the Company (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion). In the event that this Agreement is terminated by the Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.1(b)(iii), Parent shall be entitled to and the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days Business Days after the date of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, the Company Expense Payment (it being understood that in no event shall the Company be required to pay the Company Expense Payment on more than one occasion; provided, however, that payment of the Company Expense Payment shall not limit the Company’s receipt obligation to pay the Termination Fee; provided that the Termination Fee shall be reduced by the amount of the previously paid Company Expense Payment).
(b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.3(c) and Section 9.9, Parent’s termination notice receipt in full of the event Termination Fee pursuant to Section 8.3(a), together with any Enforcement Expenses, in circumstances where the Termination Fee is owed pursuant to Section 8.3(a), and Company Expense Payment paid pursuant to Section 8.6, shall constitute the sole and exclusive remedy of Parent and Acquisition Sub against the Company and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (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 or otherwise, and upon payment of such amount(s) (in circumstances where the Termination Fee is owed pursuant to Section 8.3(a)), none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The parties acknowledge and agree that if Parent receives any payments from the Company in respect of any breach of this Agreement and thereafter Parent receives the Termination Fee pursuant to this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of such payments made by the Company prior to paying the Termination Fee in respect of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companybreaches.
(c) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event transactions contemplated by this Agreement, (ii) each of the Termination Fee and any fees that Parent may pay pursuant to this Article VIII, is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable other party its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above two percent (2%) plus the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In actually received, or such lesser rate as is the maximum permitted by applicable Law (collectively, “Enforcement Expenses”); provided, however, that in no event shall an amount more than one full Company Termination Fee be the Enforcement Expenses payable by the Company pursuant to this Section 7.3Company, on the one hand, or the Enforcement Expenses payable by Parent and Acquisition Sub, on the other hand, exceed $1 million in the aggregate.
Appears in 1 contract
Sources: Merger Agreement (Servicesource International, Inc.)
Termination Fees. (a) In the event that If (i) this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) terminated by the Company pursuant to Section 7.1(c)(i7.1(h), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii7.1(g), or (iii) due (A) a Pre-Termination Takeover Proposal shall have been made and not publicly and definitively withdrawn at least five Business Days prior to an intentional breach by the Company Stockholders’ Meeting and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that thereafter this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(d) and all other conditions set forth in Article VI (excluding Section 6.1(dB) and Section 6.2(d)) shall have been satisfied at any time on or waived (other than those conditions that by their nature are prior to be satisfied at the Closing)12 month anniversary of such termination, the Company shall pay or any of its Subsidiaries enters into a definitive agreement with respect to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement any transaction included within the definition of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Company Takeover Proposal has been made and publicly announced before this Agreement has been voted on by (a “Company Takeover Transaction”) (whether or not involving the shareholders same Company Takeover Proposal as that which was the subject of the Company, Pre-Termination Takeover Proposal but giving effect to the proviso to this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.3(a)), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less in immediately available funds in the case of clause (i), in accordance with Section 5.3(f), in the case of clause (ii), within two Business Days of such termination, or in the case of clause (iii), upon the consummation of any Expense Reimbursement previously paid by Company Takeover Transaction; provided, that for the Companypurposes of clause (iii)(B) only, all references in the definition of Company Takeover Proposal to “20%” shall instead be references to “50%.”
(cb) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement For purposes of this Section 7.3. If , a “Pre-Termination Takeover Proposal” shall be deemed to occur if, after the date of this Agreement, (i) a Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. Takeover Proposal (or its successors an intention to make a Company Takeover Proposal) is made and publicly disclosed or assigns(ii) in effect any person (or Representative thereof acting on behalf of such person) shall have publicly announced a Company Takeover Proposal (or an intention to make a Company Takeover Proposal) with respect to the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Company.
Appears in 1 contract
Sources: Merger Agreement (Airgas Inc)
Termination Fees. (a) In If, but only if, the event that this Agreement is terminated: terminated by:
(i) either Parent or the Company pursuant to Section 7.1(b)(i) or by Parent pursuant to Section 7.1(d)(i) or and (iiA) by a Competing Proposal has been made to the Company pursuant after the date hereof and has been publicly made or publicly disclosed and such Competing Proposal has not been withdrawn prior to Section 7.1(c)(i)the termination of this Agreement, thenand (B) within twelve (12) months of the termination of this Agreement, in any the Company (1) enters into a definitive agreement for the consummation of a Competing Proposal (regardless of when such event under clause Competing Proposal was initially made) and such Competing Proposal is subsequently consummated (iregardless of whether such consummation occurs within the twelve (12) month period) or (ii2) consummates a Competing Proposal (regardless of this Section 7.3(awhen such Competing Proposal was initially made), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay pay, or cause to be paid, to Parent the Company Termination Fee at concurrently with the closing consummation of the such transaction pursuant to the Takeover Proposal; arising from such Competing Proposal (provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.37.3(a)(i), the term references to “Takeover Proposalfifteen percent (15%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) the Company pursuant to Section 7.1(c)(ii) then the Company shall pay, or cause to be paid, to Parent the Termination Fee concurrently with such termination; or
(iii) Parent pursuant to Section 7.1(d)(ii) or Section 7.1(d)(iii) then the Company shall pay, or cause to be paid, to Parent the Termination Fee not later than the second (2nd) Business Day following such termination.
(b) In Notwithstanding anything to the contrary set forth in this Agreement:
(i) the parties agree that in no event shall the Company be required to pay the Termination Fee, as the case may be, on more than one occasion;
(ii) the parties agree that the Termination Fee shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law; and
(iii) any amounts payable pursuant to this Section 7.3 shall be paid by wire transfer of same day funds in accordance with this Section 7.3.
(c) For purposes of this Agreement, “Termination Fee” means an amount equal to $34 million (subject to reduction as provided in Section 7.3(e)), except that if this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(c)(ii): (A) prior to the expiration of the Go-Shop Period or (B) after the expiration of the Go-Shop Period and all other conditions set forth in Article VI prior to the date that is ten (excluding Section 6.1(d10) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at days after the Closing)expiration of the Go-Shop Period, the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this a Competing Proposal from, or an Alternative Acquisition Agreement and the Transactions (such amountwith, an Excluded Party, the “Expense Reimbursement”). Such payment Termination Fee” shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are be an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. $17 million (or its successors or assigns) subject to reduction as provided in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.7.3(e));
Appears in 1 contract
Sources: Merger Agreement (Kaydon Corp)
Termination Fees. (a1) In the event that Despite any other provision in this Agreement is terminated: (i) by Parent pursuant relating to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i)payment of fees and expenses, thenincluding the payment of brokerage fees, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, if a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i)Event occurs, the Company shall pay the Company Purchaser the Termination Fee promptly, but in no event more than two accordance with Section 8.2(3).
(2) business days For the purposes of this Agreement, "Termination Fee" means $2,000,000 and "Termination Fee Event" means the termination of this Agreement:
(a) by the Purchaser, pursuant to Section 7.2(1)(d)(ii) [Change in Recommendation or Breach of Article 5];
(b) by the Company, pursuant to Section 7.2(1)(c)(ii) [To enter into a Superior Proposal] ; or
(c) by the Company or the Purchaser pursuant to Section 7.2(1)(b)(i) [Failure of Shareholders to Approve] or Section 7.2(1)(b)(iii) [Effective Time not prior to Outside Date] or by the Purchaser pursuant to Section 7.2(1)(d)(i) [Breach of Representations and Warranties or Covenants by Company] if;
(i) after the date hereof and prior to such termination, an Acquisition Proposal is proposed, offered, made or publicly announced or otherwise publicly disclosed by any Person (other than the Purchaser) or any Person (other than the Purchaser) shall have publicly announced an intention to make an Acquisition Proposal; and
(ii) within 365 days following the date of receipt such termination (A) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) is consummated or effected, or (B) the Company or one or more of Parent’s termination noticeits Subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above) and such Acquisition Proposal is later consummated or effected (whether or not within 365 days after such termination). For purposes of this Section 7.38.2(2)(c), the term “Takeover "Acquisition Proposal” " shall have the meaning assigned to such term in Section 5.21.1, except that all references therein to "20% or more" shall be deemed to be references to "50%% or more".
(3) The Termination Fee shall be paid by the Company to the Purchaser in consideration for the Purchaser's disposition of rights under this Agreement as follows, by wire transfer of immediately available funds to an account designated by the Purchaser, if a Termination Fee Event occurs due to:
(a) a termination of this Agreement described in Section 8.2(2)(a), within two (2) Business Days of the occurrence of such Termination Fee Event;
(b) In the event that a termination of this Agreement is terminated by Parent or the Company pursuant to described in Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.2(2)(b), the Company shall pay prior to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing occurrence of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.Event; and
(c) Each a termination of this Agreement described in Section 8.2(2)(c), on or prior to consummation or effectiveness of the Company, Parent and Merger Sub Acquisition Proposal referred to in Section 8.2(2)(c).
(4) The Company acknowledges that the agreements contained in this Section 7.3 8.2 are an integral part of Transactions. In the transactions contemplated by this Agreement, and that without these agreements the Purchaser would not enter into this Agreement, and that the amounts set out in this Section 8.2 are consideration for the Purchaser's disposition of its rights under this Agreement and represent liquidated damages which are a genuine pre-estimate of the damages, including opportunity costs, which the Purchaser will suffer or incur as a result of the event giving rise to such damages and resultant termination of this Agreement, and are not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive.
(5) Subject to Section 8.6, the Purchaser hereby expressly acknowledges and agrees that, upon any termination of this Agreement under circumstances where it is entitled to the Termination Fee and such Termination Fee is paid in full within the prescribed time period, such Termination Fee is the sole monetary remedy of the Purchaser against the Company or its Subsidiaries and the Purchaser shall fail to pay the Expense Reimbursement or be precluded from any other remedy against the Company Termination Fee when dueor its Subsidiaries and shall not seek to obtain any recovery, judgment or damages of any kind against the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) its Subsidiaries in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Agreement.
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) (A) this Agreement is terminated: (i) by Parent terminated pursuant to Section 7.1(d)(i8.1(c)(i) (as a result of the failure of the Minimum Condition) or Section 8.1(e) (provided neither Parent nor Merger Sub is in breach in any material respect of any of its representations, warranties and covenants set forth in this Agreement to the extent (and only to the extent) such breach causes the basis for termination of the Agreement pursuant to Section 8.1(e)), (B) prior to such termination any Person shall have commenced, publicly proposed or communicated to the Company an Acquisition Proposal that is publicly disclosed and which shall be continuing and not withdrawn prior to the date of such termination, and (C) within one hundred eighty (180) days after such termination, the Company consummates either (1) a merger, consolidation, or other business combination between the Company and any other Person (other than Parent of an Affiliate thereof) or (2) the sale of more than fifteen percent (15%) (in voting power) of the voting securities of the Company or the sale of fifteen percent (15%) or more (in fair market value) of the assets of the Company to the Person making such Acquisition Proposal;
(ii) by the Company this Agreement is terminated pursuant to Section 7.1(c)(i8.1(c)(ii); or
(iii) this Agreement is terminated pursuant to Section 8.1(g), then, in any such event under clause (i) or (ii) of this Section 7.3(a)event, the Company shall pay to Parent, by wire transfer, Parent promptly (but in no event later than one Business Day after the first of such events shall have occurred) a fee in an amount equal to $1,300,000 1,250,000 (the “Company "Termination Fee”). If (x") Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by plus Parent's actual out-of-pocket expenses incurred in connection with the Company and (y) prior to any such terminationTransactions, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% which amounts shall be deemed to be references to 50%payable in immediately available funds.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions Except as set forth in Article VI (excluding this Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)8.3, the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket all costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment including reasonable attorneys' fees and expenses) shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously be paid by the Companyparty incurring such expenses, whether or not any Transaction is consummated.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay all or any portion of the Expense Reimbursement or the Company Termination Fee when dueFee, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and also shall pay to Parent interest on such unpaid amount, commencing on the date that such amount of the payment becomes due, at a rate equal to 300 basis points above the prime rate of Citibank N.A. interest publicly announced by Citibank, N.A., from time to time, in the City of New York, as such bank's Base Rate plus two percent (or its successors or assigns2%).
(d) in effect on If paid, the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee and expenses provided for in this Section 8.3 are intended to be payable the sole and exclusive remedy with respect to any liability for a breach of this Agreement by the Company pursuant to (other than a willful and material breach of this Section 7.3Agreement by the Company).
Appears in 1 contract
Sources: Merger Agreement (Tender Loving Care Health Care Services Inc/ Ny)
Termination Fees. (a) In the event that this Agreement is terminated: that:
(i) by Parent pursuant to Section 7.1(d)(i(A) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3hereof, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) a bona fide Alternative Proposal shall have been satisfied made known to Parent or waived shall have been made directly to its shareholders generally or any person shall have publicly announced a bona fide intention (other than those conditions that by their nature are not subsequently withdrawn) to be satisfied at make an Alternative Proposal and (B) following the Closing), the Company shall pay to Parent, by wire transfer, occurrence of an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination event described in the event of any such termination by the Company, or preceding clause (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the CompanyA), this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b)(iii) (so long as the Alternative Proposal was publicly disclosed prior to, and had not been withdrawn at, the time of the Parent Shareholder Meeting) or Section 8.1(d)(i), and the Company (C) Parent consummates a transaction pursuant with respect to an Alternative Proposal within six (6) months of the date this Agreement is terminated or enters into a definitive agreement with respect to any Takeover Alternative Proposal within 12 six (6) months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent date this Agreement is terminated and Merger Sub acknowledges consummates a transaction with respect to such Alternative Proposal (provided that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement purposes of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment8.2(a)(i), the Company references to “20%” in the definition of Alternative Proposal shall indemnify be deemed to be references to “50%”); or
(ii) this Agreement is terminated by Parent for its fees and expenses pursuant to Section 8.1(c)(ii); or
(including attorneys fees and expensesiii) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable this Agreement is terminated by the Company pursuant to Section 8.1(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.38.2(a), Parent shall pay to the Company the Termination Fee, it being understood that in no event shall Parent be required to pay the Termination Fee on more than one occasion.
(b) Any payment required to be made pursuant to clause (i) of Section 8.2(a) shall be made to the Company promptly following the consummation of the transaction referred to therein (and in any event not later than two (2) Business Days after delivery to Parent of notice of demand for payment); any payment required to be made pursuant to clause (ii) of Section 8.2(a) shall be made to the Company concurrently with the termination of this Agreement by Parent pursuant to Section 8.1(c)(ii); any payment required to be made pursuant to clause (iii) of Section 8.2(a) shall be made to the Company promptly following termination of this Agreement by the Company pursuant to Section 8.1(d)(ii) (and in any event not later than two (2) Business Days after delivery to Parent of notice of demand for payment), and such payment shall be made by wire transfer of immediately available funds to an account to be designated by the Company.
Appears in 1 contract
Sources: Merger Agreement (PLC Systems Inc)
Termination Fees. (a) In the event that this Agreement is terminated: If (i) this Agreement shall have been terminated by Parent Purchaser pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii8.1(e) due to an intentional a breach by the Company of Section 6.5, (ii) the Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made after the date of this Agreement but prior to the date of the Company Special Meeting, and such Company Alternative Proposal has not been withdrawn, and such withdrawal has not been publicly disclosed and withdrawn or announced, at least five (5) days prior to the date of the Company Special Meeting (or prior to the termination of this Agreement if there has been no Company Special Meeting) and (yiii) prior to any within nine (9) months of such termination, a Takeover definitive agreement with respect to a Company Alternative Proposal has been madeentered into, then and such Company Alternative Proposal is ultimately consummated; provided that, for purposes of this clause (iii), the references to “20%” in the definition of “Company Alternative Proposal” shall be deemed to be references to “more than 80%”;
(b) if the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i8.1(j); or
(c) if Purchaser shall have terminated this Agreement pursuant to Section 8.1(i); then, the Company shall, (x) in the case of the foregoing clause (a), upon the consummation of a Company Alternative Proposal, pay to Purchaser the Company Termination Fee; (y) in the case of the foregoing clause (b), prior to or substantially concurrently with such termination, pay to Purchaser the Company Termination Fee; and (z) in the case of the foregoing clause (c), within two (2) Business Days of such termination, pay to Purchaser the Company Termination Fee; it being understood that in no event shall the Company be required to pay the Company Termination Fee promptly, but in no event on more than two (2) business days after one occasion. The Company shall pay to Purchaser the date of receipt of Parent’s termination notice. For purposes of Company Termination Fee pursuant to this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned 8.3 by wire transfer in immediately available funds to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated one or more accounts designated by Parent or Purchaser. Following receipt by Purchaser of the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing)Termination Fee, the Company shall pay have no further liability with respect to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and or the Transactions (such amounttransactions contemplated herein to Purchaser, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination Holdco or any of their Subsidiaries or Affiliates or any other Person, other than in the event respect of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt willful breach of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or fraud. If the Company pursuant fails to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall timely pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by when due, then it shall pay Purchaser the Companyinterest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus three percent (3%) per annum through the date such payment is actually received.
(cd) Each of the Company, Parent and Merger Sub acknowledges The Parties acknowledge that the agreements contained in this Section 7.3 8.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when duetransactions contemplated by this Agreement and that, without these agreements, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of Parties would not enter into this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Agrico Acquisition Corp.)
Termination Fees. (a) In the event that If (i) this Agreement is terminated: (i) by Parent terminated pursuant to Section 7.1(d)(i7.1(b), Section 7.1(d) or Section 7.1(f) (for a Willful Breach only), (ii) by a Company Takeover Proposal shall have been publicly announced or publicly disclosed after the date of this Agreement and prior to such termination shall not have been publicly withdrawn and (iii) at any time on or prior to the twelve (12)-month anniversary of such termination, the Company pursuant enters into a definitive agreement with respect to, or consummates, the Company Takeover Proposal referred to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(aabove (a “Company Takeover Transaction”), the Company shall pay to ParentParent the Termination Fee, by wire transfertransfer (to an account designated by Parent) in immediately available funds, an amount equal upon the earlier of entering into such definitive agreement with respect to $1,300,000 the Company Takeover Transaction or the consummation of the Company Takeover Transaction; provided that for the purposes of clause (iii) only, all references in the definition of Company Takeover Proposal to “Company Termination Feetwenty-five percent (25%)” shall instead be references to “fifty percent (50%).”).
(b) If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i7.1(g), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid Fee, by the Companywire transfer (to an account designated by Parent) in immediately available funds, within three (3) Business Days after such termination.
(c) “Termination Fee” shall be $38,765,000, in cash. Anything to the contrary in this Agreement notwithstanding, if the Termination Fee shall become due and payable in accordance with this Section 7.3, from and after such termination and payment of the Termination Fee in full pursuant to and in accordance with this Section 7.3, the Company and its Affiliates and Representatives (in the case of a payment of the Termination Fee by the Company) shall have no further Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 7.3, except in the case of fraud. Each of the CompanyParties hereto acknowledges that the Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Termination Fee is due and payable and do not involve fraud, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. In no event shall Parent be entitled to more than one payment of the Termination Fee in connection with a termination of this Agreement pursuant to which such Termination Fee is payable. For the avoidance of doubt, while Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 8.5 and the payment of the Company Termination Fee under this Section 7.3, under no circumstances shall Parent and Merger Sub be permitted or entitled to receive the Termination Fee (if entitled under this Section 7.3) if the Merger is consummated.
(d) The Company acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactionsthe Merger, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. In the event that Accordingly, if the Company shall fail fails to pay the Expense Reimbursement or the Company Termination Fee when duein a timely manner any amount due pursuant to this Section 7.3, then (i) the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys disbursements and reasonable fees and expensesof counsel) incurred in the collection of such overdue amount, including in connection with such suit any related claims, actions or proceedings commenced and (ii) the Company shall pay to Parent interest on such amount from and including the date payment of such amount was due to but excluding the date of the actual payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) set forth in The Wall Street Journal in effect on the date the payments such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee required to be payable by the Company pursuant to this Section 7.3made plus two percent (2%).
Appears in 1 contract
Sources: Merger Agreement (KMG Chemicals Inc)
Termination Fees. (a) In the event that this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) terminated by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i9.1(e) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement or Merger Sub pursuant to Section 7.1(d)(ii9.1(f)(i) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been madeor 9.1(f)(iii), then the Company shall pay to Parent the Company Termination Fee at the closing by wire transfer of the transaction same day funds concurrently with any such termination. Any amount that becomes payable pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% 9.2(a) shall be deemed paid by wire transfer of immediately available funds to be references to 50%an account designated by Parent.
(b) In the event that after the date hereof, (i) a Company Acquisition Proposal shall have been made to the Company or shall have been made directly to the shareholders of the Company generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make a Company Acquisition Proposal, (ii) thereafter this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing9.1(b)(i), 9.1(b)(iii), 9.1(d) (with respect to breaches of covenants, but not representations and warranties), 9.1(f)(ii), or 9.1(f)(iv), and (iii) within 12 months after any such termination referred to in clause (ii) above, the Company enters into a definitive Contract with respect to, or consummates the transactions contemplated by, any Company Acquisition Proposal (regardless of whether such Company Acquisition Proposal is (x) made before or after termination of this Agreement or (y) is the same Company Acquisition Proposal referred to in clause (i) above), then the Company shall pay to ParentParent the Termination Fee, by wire transfertransfer of same day funds, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including on the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders date of the Company, this Agreement is terminated by Parent or the Company pursuant first to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing occur of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyevent(s) referred to above in this clause (iii).
(c) Each of the Company, Parent The Company acknowledges and Merger Sub acknowledges agrees that the agreements contained in this Section 7.3 9.2 are an integral part of Transactionsthe transactions contemplated by this Agreement, that without these agreements Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. In the event that If the Company shall fail fails to pay Parent the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit 9.2 and shall pay interest on the amount of the payment Termination Fee at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on 10% per annum, compounded daily, from the date such Termination Fee became due and owing through and including the payments was payable hereunderdate of payment. In no addition, the parties further agree that, if the Company fails to pay Parent any amount payable under this Agreement when due or Parent fails to pay the Company any amount payable under this Agreement when due (other than the amounts referred to in the prior sentence), the Company or Parent, as the case may be, shall pay interest on such amount at the rate of 10% per annum, compounded daily, from the date such amount became due and owing through and including the date of payment.
(d) Each of Parent and Merger Sub agrees that notwithstanding anything in this Agreement to the contrary (including Section 9.3), in the event shall an amount more than one full Company that the Termination Fee be payable is paid to and accepted by the Company Parent pursuant to this Section 7.39.2, the payment of such amount shall be the sole and exclusive monetary remedy of Parent and Merger Sub, and their respective Subsidiaries, shareholders, Affiliates, officers, managers, directors, employees and Representatives against the Company or any of its Representatives or Affiliates for, and in no event will Parent or Merger Sub or any other such person seek to recover any other money damages or seek any other monetary remedy based on a claim in law or equity with respect to, (i) any loss suffered as a result of the failure of the Merger to be consummated, (ii) the termination of this Agreement, (iii) any liabilities or obligations arising under this Agreement, or (iv) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and upon payment and acceptance of the Termination Fee, neither the Company nor any of its Representatives or Affiliates shall have any further liability or obligation to Parent or Merger Sub relating to or arising out of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Termination Fees. (a) In the event that If this Agreement is terminated: terminated (i) by Parent pursuant to Section 7.1(d)(i7.01(d) or Section 7.01(e), or (ii) pursuant to Section 7.01(c), Section 7.01(f) (unless the actions or omissions of Parent or Merger Sub have been the primary cause of, or resulted in either (A) the failure to satisfy the conditions to the obligations of the Company to consummate the Merger set forth in ARTICLE VI prior to the Outside Termination Date, or (B) the failure of the Effective Time to have occurred prior to the Outside Termination Date) or Section 7.01(g) (solely in the case of a termination resulting from an intentional breach), the Company shall pay Parent or its designee the Company Termination Fee by wire transfer of immediately available funds; (x) in the case of any termination pursuant to clause (i) above, prior to or contemporaneous with such termination, and (y) in the case of any termination pursuant to clause (ii) above, only if (A) prior to such termination but after the date hereof, an Acquisition Proposal is made known to the Company or publicly announced by any Person (other than Parent, Merger Sub or their respective Affiliates) and (B) an Acquisition Proposal is consummated or the Company enters into an acquisition agreement for an Acquisition Proposal with any Person, in any case, within twelve (12) months following such termination, in which case such payment shall be made prior to or contemporaneous with the consummation of, or entering into an acquisition agreement for, an Acquisition Proposal.
(b) For the avoidance of doubt, in no event shall the Company or Parent ever be obligated to pay, or cause to be paid, more than one Company Termination Fee. As used herein, “Company Termination Fee” shall mean a cash amount equal to $6,600,000, except that in the event this Agreement is terminated by the Company pursuant to Section 7.1(c)(i7.01(d) and the Company simultaneously enters into (I) prior to the No-Shop Period Start Date, a definitive agreement with respect to a Superior Proposal or (II) on or following the No-Shop Period Start Date but prior to 12:01 a.m. New York, New York time, on the date that is the 25th day following the No-Shop Period Start Date (the “Excluded Party End Date”), thena definitive agreement with respect to a Superior Proposal with an Excluded Party, in any such event under clause (i) or (ii) of this Section 7.3(a), then the Company Termination Fee shall pay to Parent, by wire transfer, an mean a cash amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%3,700,000.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 1 contract
Sources: Merger Agreement (NightHawk Radiology Holdings Inc)
Termination Fees. (a) In the event that If this Agreement is terminated: (iA) by Parent pursuant to Section 7.1(d)(i9.1(e) (Company Adverse Recommendation) or Section 9.1(f) (iiSpecific Breach), or by Parent pursuant to Section 9.1(g) (Material Company Breach) as a result of an intentional breach by the Company; (B) by either party pursuant to Section 9.1(b) (No Vote) or Section 9.1(c) (Outside Date), or by Parent pursuant to Section 9.1(g) (Material Company Breach) other than as a result of an intentional breach by the Company, and, in any case in this clause (B), at any time after the execution of this Agreement and prior to the expiration of the twelfth (12th) month following such termination, the Company enters into an Alternative Acquisition Agreement or consummates an Acquisition Proposal (with the percentages set forth in the definition of “Acquisition” as used in the term “Acquisition Proposal” changed from 15% to 50%, and with the parties expressly acknowledging that any asset-backed or similar debt financing collateralized by, or involving sale of, a pool of receivables would not constitute an Acquisition Proposal for purposes of this provision); or (C) by the Company pursuant to Section 7.1(c)(i9.1(d) (Alternative Acquisition Agreement), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, Buyer by wire transfertransfer of immediately available funds to an account designated by Buyer, an the cash amount equal to of $1,300,000 3,975,000.00 (the “Company Termination Fee”). If (x, as agreed upon liquidated damages and not as a penalty and, except in the case of fraud and subject to Section 9.2(b) Parent terminates this Agreement and 9.2(d), as the sole and exclusive remedy of Buyer against Company or Coastal if actually paid in connection with a termination pursuant to the subsections of Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the 9.1 set forth in this sentence. The Company Termination Fee at shall be payable (i) in the closing case of the transaction a termination pursuant to clause (A) or (C) hereof, on or before the Takeover Proposal; provided, that such closing occurs within 12 months second (2nd) business day after the termination date. If Parent shall have terminated of this Agreement Agreement, and (ii) in the case of a termination pursuant to Section 7.1(d)(i)clause (B) hereof, concurrently with the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date consummation of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover an Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In addition to the foregoing, in the event that this Agreement is terminated pursuant to Section 9.1(b) (No Vote), or pursuant to Section 9.1(g) (Material Company Breach) other than as a result of an intentional breach by the Company, then the Company shall, within two (2) business days, pay $1,300,000 (the “Company Expense Fee”) to Parent as agreed upon liquidated damages and not as a penalty and, except in the case of fraud and subject to this Section 9.2(b) and 9.2(d), as the sole and exclusive remedy of Buyer against Company or Coastal if actually paid in connection with a termination pursuant to the subsections of Section 9.1 set forth in this sentence by wire transfer of same day funds to one or more accounts designated by Parent. If, after the Company Expense Fee is paid pursuant to this Section 9.2(b) by the Company, the Company is subsequently required to pay a Company Termination Fee pursuant to Section 9.2(a), the Company shall be entitled to reduce the amount of the Company Termination Fee payable by the amount of the Company Expense Fee previously paid pursuant to the previous sentence. For the avoidance of doubt, if this Agreement is terminated in accordance with Section 9.1, the obligations of the Company set forth in Section 9.2(a) and this Section 9.2(b) shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise) of Parent and Buyer against the Companies for any breach of this Agreement or any failure to consummate the transactions contemplated by this Agreement, and Parent and Buyer shall not be entitled to any other damages or to seek any other remedies (including in respect of specific performance of the Companies’ obligations under this Agreement) other than as set forth in Section 9.2(a) and this Section 9.2(b).
(c) If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii9.1(h) and all other conditions set forth in Article VI (excluding Section 6.1(dMaterial Buyer Breach) and Section 6.2(d)) as a result of an intentional breach by Parent or Buyer, Parent shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), pay the Company shall pay to Parent, by wire transfer, transfer of immediately available funds to an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination account designated by the Company, the cash amount of $3,975,000.00 (the “Parent Termination Fee”), as agreed upon liquidated damages and not as a penalty and, except in the case of fraud and subject to Section 9.2(d), as the sole and exclusive remedy of the Companies against Parent or Buyer, if actually paid, in connection with a termination pursuant to Section 9.1(h). The Parent Termination Fee, if any, shall be payable on or before the second (ii) no later than two (22nd) business days day after the Company’s receipt termination of Parent’s termination notice in this Agreement. In the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated pursuant to Section 9.1(h) (Material Buyer Breach) other than as a result of an intentional breach by Parent or Buyer, then Parent or Buyer shall pay the Company by wire transfer of immediately available funds to an account designated by the Company, the cash amount of $1,300,000.00 (the “Parent Expense Fee”), as agreed upon liquidated damages and not as a penalty and, except in the case of fraud and subject to Section 9.2(d), as the sole and exclusive remedy of the Companies against Parent or Buyer, if actually paid, in connection with a termination pursuant to Section 7.1(b)(iii9.1(h). For the avoidance of doubt, if this Agreement is terminated in accordance with Section 9.1, the obligations of Parent and Buyer set forth in this Section 9.2(c) shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise) of the Companies against Parent and Buyer for any breach of this Agreement or any failure to consummate the transactions contemplated by this Agreement, and the Company consummates a transaction pursuant Companies shall not be entitled to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing other damages or to seek any other remedies (including in respect of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyspecific performance of Parent’s or Buyer’s obligations under this Agreement) other than as set forth in this Section 9.2(c).
(cd) Each of the Company, Parent and Merger Sub acknowledges The parties acknowledge that the agreements contained in this Section 7.3 9.2 are an integral part of Transactions. In the event transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement; accordingly, if any Person fails to promptly pay any amount due pursuant to Section 9.2 and, in order to obtain such payment, a party commences an action that results in a judgment against another party for the Company amount set forth in Section 9.2 or any portion thereof, the party against whom such judgment is rendered shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable other party’s costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3action.
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Termination Fees. (a) In Except as set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement and the event transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that the filing fee required under the HSR Act in connection with the transactions contemplated by this Agreement shall be paid 50% by Parent and 50% by the Company.
(b) The Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds a termination fee and reimbursement of expenses in an amount equal to $2,500,000 (the “Termination Fee”):
(i) if this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) terminated by the Company pursuant to Section 7.1(c)(i8.1(i), then, in any which case payment shall be made before or concurrently with such event under clause (i) or termination;
(ii) if this Agreement is terminated by Parent pursuant to Section 8.1(e), 8.1(f) or 8.1(g) or pursuant to Section 8.1(h) as a result of a willful breach by the Company, in which case payment shall be made within two business days of such termination; or
(iii) if (A) a proposal or offer related to an Acquisition Transaction shall have been made or proposed to the Company or its shareholders or otherwise publicly announced (whether or not conditional), (B) this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(b) or 8.1(d) and (C) within 12 months following the date of such termination, any Acquired Company enters into a written agreement (whether binding or non-binding) providing for the implementation of a proposal or offer related to an Acquisition Transaction or shall consummate any proposal or offer related to an Acquisition Transaction (whether or not such proposal or offer was the same proposal or offer referred to in the foregoing clause (A)), in which case payment shall be made within two business days of the date on which such Acquired Company enters into such agreement in principle, arrangement, understanding or Contract or consummates such proposal or offer, as applicable.
(c) The payment of the Termination Fee shall be compensation and liquidated damages for the loss suffered by Parent as a result of the termination of the Agreement under the circumstances contemplated under Section 8.3(b) and to avoid the difficulty of determining damages under the circumstances. The Company shall have no further liability to Parent after the payment of the Termination Fee.
(d) The Parties acknowledge and agree that the agreements contained in this Section 7.3(a)8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. If the Company fails to pay when due any amount payable under this Section 8.3 then the Company shall pay to Parent, by wire transferas applicable, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket its costs and expenses (including the costs legal fees and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselexpenses) in connection with any action, including the collection under and enforcement filing of this Section 7.3. If the Company fails any lawsuit or other legal action, taken to promptly make any payment required under this Section 7.3 and Parent commences a suit for collect payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on such overdue amount (for the amount period commencing as of the payment date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to 300 basis points above the “prime rate rate” (as announced by Bank of Citibank N.A. (America or its successors or assignsany successor thereto) in effect on the date the payments such overdue amount was payable hereunder. In no event shall an amount more than one full Company Termination Fee originally required to be payable by the Company pursuant to this Section 7.3paid plus 2%.
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Termination Fees. (a) In the event that If this Agreement is terminated: validly terminated by:
(i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i7.01(c)(i);
(ii) Parent pursuant to Section 7.01(d)(i);
(iii) Parent, if (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed), (B) Parent terminates this Agreement pursuant to (x) Section 7.01(d)(ii) due to a breach of, or a failure to perform or comply with, one or more covenants or agreements of the Company under this Agreement following the making of such Company Takeover Proposal, and (C) within nine (9) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(iv), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”);
(iv) Either Parent or the Company pursuant to Section 7.01(b)(i) and in any such case of this Section 7.03(a)(iv), (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed) and (B) within nine (9) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(iv), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”); or
(v) Either Parent or the Company pursuant to Section 7.01(b)(iii) and in any such case of this Section 7.03(a)(v), (A) after the execution of this Agreement and prior to such termination, a Company Takeover Proposal shall have been publicly disclosed (whether by the Company or a third party) or otherwise made known to the Company Board and not withdrawn (publicly, if publicly disclosed) and (B) within nine (9) months following the date of such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to or recommended to its stockholders a Company Takeover Proposal or a Company Takeover Proposal shall have been consummated (provided that for purposes of this Section 7.03(a)(v), the references to “twenty percent (20%)” in the definition of Company Takeover Proposal shall be deemed to be references to “fifty percent (50%)”); then, in any such event under clause (i) or (ii) of this Section 7.3(a)case, the Company shall pay to Parent, by wire transfer, an amount equal to Parent a fee of One Hundred Seventy-Five Thousand Dollars ($1,300,000 175,000) in cash (the “Company Termination Fee”). If .
(xb) Parent terminates All payments under this Agreement pursuant to Section 7.1(d)(ii) due 7.03 shall be made by wire transfer of immediately available funds to an intentional breach account designated in writing by Parent, (i) in the Company and (ycase of Section 7.03(a)(i) above, immediately prior to any or substantially concurrently with such termination, a Takeover Proposal has been made(ii) in the case of Section 7.03(a)(ii) above, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more later than two five (25) business days Business Days after the date of receipt such termination, and (iii) in the case of Parent’s termination notice. For purposes Section 7.03(a)(iii), Section 7.03(a)(iv), or Section 7.03(a)(v) above, on the earlier to occur of (x) the date of entry of a definitive agreement and (y) the date on which a Company Takeover Proposal is consummated.
(c) The provisions of this Section 7.37.03 are an integral part of the transactions contemplated by this Agreement and, without such provisions, the term “Takeover Proposal” shall Parties would not have entered into this Agreement; accordingly, if the meaning assigned Company fails to such term in Section 5.2, except that all references therein to 20% shall be deemed promptly pay or cause to be references paid any amount due pursuant to 50%.
(b) In the event this Section 7.03, and, in order to obtain such payment, Parent commences a suit that this Agreement is terminated by Parent or results in a judgment against the Company pursuant to Section 7.1(b)(iii) and all other conditions for the amount set forth in Article VI (excluding this Section 6.1(d) and Section 6.2(d)) shall have been satisfied 7.03 or waived (other than those conditions that by their nature are to be satisfied at the Closing)any portion thereof, the Company shall pay or cause to Parentbe paid to Parent its reasonable, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the such amount of the payment or portion thereof at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) published by The Wall Street Journal in effect on the date such payment was required to be made through the payments was payable hereunderdate of payment, or such lesser rate as is the maximum permitted by applicable Law. In Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that:
(i) if this Agreement is terminated under circumstances in which the Company is obligated to pay the Company Termination Fee under Section 7.03(a), upon payment of the Company Termination Fee, the Company shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub or any of their respective Affiliates or Representatives, and payment of the Company Termination Fee and such costs and expenses by the Company shall be Parent’s sole and exclusive remedy for any Claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, suffered or incurred by Parent, Parent’s Subsidiaries and any other Person in connection with this Agreement, the transactions contemplated by this Agreement (and the termination thereof) or any matter forming the basis for such termination, and Parent and Merger Sub shall not have, and each expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity); and
(ii) in no event shall an amount the Company be required to pay the Company Termination Fee on more than one full (1) occasion.
(d) Each Party acknowledges and agrees, on behalf of itself and its Affiliates, that the payment of the Company Termination Fee be payable by is not a penalty but instead is liquidated damages in a reasonable amount that shall compensate Parent, Merger Sub and their respective Affiliates in the circumstances in which the Company pursuant Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to this Section 7.3calculate with precision.
Appears in 1 contract
Termination Fees. (a) In the event that .
(a) If:
(i) this Agreement is terminated: terminated pursuant to (iA) by Section 9.1(c)(ii) (Violation of No Solicitation), (B) Section 9.1(c)(iii) (Failure to Recommend or Change in Recommendation) or (C) Section 9.1(b)(iii) (No Company Stockholder Approval) if Parent has the right to terminate this Agreement pursuant to (1) Section 9.1(c)(ii) (Violation of No Solicitation) or (2) Section 9.1(c)(iii) (Failure to Recommend or Change in Recommendation) at the time of such termination of this Agreement; or
(ii) (A) this Agreement is terminated pursuant to Section 7.1(d)(i9.1(b)(i) (Outside Date), Section 9.1(b)(iii) (No Company Stockholder Approval) or Section 9.1(c)(i) (ii) Breach by the Company Company), (B) (1) in the case of a termination pursuant to Section 7.1(c)(i9.1(b)(i) (Outside Date) or Section 9.1(c)(i) (Breach by the Company), thena Takeover Proposal shall have been made to the Board of Directors of the Company or become publicly known, in any and not withdrawn, prior to the date of such event under clause (i) termination, or (ii2) in the case of this a termination pursuant to Section 7.3(a9.1(b)(iii) (No Company Stockholder Approval), a Takeover Proposal shall have been made to the Board of Directors of the Company or become publicly known, and not publicly withdrawn, prior to the date of the Company Stockholders Meeting, and (C) within 12 months of such termination, the Company enters into a definitive agreement with any third party to consummate, or consummates, a Takeover Proposal; then the Company shall pay pay, or cause to be paid, to Parent, by wire transfertransfer of immediately available funds, an amount equal to $1,300,000 18,340,000 (the “Company Termination Fee”). If ) (x) Parent terminates this Agreement in the case of termination pursuant to Section 7.1(d)(iiclause (i) due to an intentional breach by above, within two Business Days of the Company date of termination and (y) prior in the case of termination pursuant to any such terminationclause (ii) above, within two Business Days of the date of the first to occur of (I) the execution of a definitive agreement relating to a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing and (II) consummation of the a transaction pursuant relating to the a Takeover Proposal; providedprovided that, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For solely for purposes of this Section 7.39.3(a), the term “Takeover Proposal” shall have the meaning assigned to such term ascribed thereto in Section 5.27.5(f) (Company No Solicitation), except that all references therein to 2015% shall be deemed to be references changed to 50%.
(b) In the event that If:
(i) this Agreement is terminated by pursuant to (A) Section 9.1(d)(ii) (Violation of Parent No Solicitation), (B) Section 9.1(d)(iii) (Parent Change in Recommendation) or (C) Section 9.1(b)(iv) (No Parent Stockholder Approval) if the Company has the right to terminate this Agreement pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination Section 9.1(d)(ii) (Violation of Parent No Solicitation) or (2) Section 9.1(d)(iii) (Parent Change in Recommendation) at the event time of any such termination by the Company, or of this Agreement; or
(ii) no later than two (2A) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii9.1(b)(i) (Outside Date), and Section 9.1(b)(iv) (No Parent Stockholder Approval) or Section 9.1(d)(i) (Breach by Parent), (B) (1) in the Company consummates case of a transaction termination pursuant to any Section 9.1(b)(i) (Outside Date) or Section 9.1(d)(i) (Breach by Parent), a Parent Takeover Proposal shall have been made to the Board of Directors of Parent or become publicly known, and not withdrawn, prior to the date of such termination, or (2) in the case of a termination pursuant to Section 9.1(b)(iv) (No Parent Stockholder Approval), a Parent Takeover Proposal shall have been made to the Board of Directors of Parent or become publicly known, and not publicly withdrawn, prior to the date of the Parent Stockholders Meeting, and (C) within 12 months after of such termination datetermination, Parent enters into a definitive agreement with any third party to consummate, or consummates, a Parent Takeover Proposal, then concurrently with Parent shall pay to the closing Company, by wire transfer of such transactionimmediately available funds, an amount equal to $18,340,000 (the “Parent Termination Fee”) (x) in the case of termination pursuant to clause (i) above, within two Business Days of the date of termination and (y) in the case of termination pursuant to clause (ii) above, within two Business Days of the date of the first to occur of (I) the execution of a definitive agreement relating to a Parent Takeover Proposal and (II) consummation of a transaction relating to a Parent Takeover Proposal; provided that, solely for purposes of this Section 9.3(b), the Company term “Parent Takeover Proposal” shall pay have the meaning ascribed thereto in Section 7.19(f) (Parent the Company Termination Fee less any Expense Reimbursement previously paid by the CompanyNo Solicitation), except that all references to 15% shall be changed to 50%.
(c) Each of the Company, Parent and Merger Sub Parties acknowledges that the agreements contained in this Section 7.3 9.3 (Termination Fees) are an integral part of Transactions. In the event this Agreement, and that the Company shall fail to pay the Expense Reimbursement or (i) the Company Termination Fee when dueis not a penalty, the Company shall reimburse but rather is a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions and (ii) the Parent Termination Fee is not a penalty, but rather is a reasonable amount that will compensate the Company in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, each of which amounts would otherwise be impossible to calculate with precision. In addition, if any Party fails to pay in a timely manner any amount due pursuant to Section 9.3(a) (Termination Fees) or Section 9.3(b) (Termination Fees), as applicable, then (i) such Party shall reimburse the other Party for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys disbursements and fees and expensesof counsel) incurred in the collection of such overdue amount, including in connection with any related Proceedings commenced and (ii) such suit and Party shall pay to the other Party interest on the amount payable pursuant to Section 9.3(a) (Termination Fees) or Section 9.3(b) (Termination Fees) from and including the date payment of such amount was due to but excluding the date of actual payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2%. Notwithstanding anything to the payments was payable hereunder. In no event shall an amount more than one full contrary in this Agreement, (A) upon payment of the Company Termination Fee be payable by the Company pursuant to this Section 7.39.3 (Termination Fees), none of the Company, any of the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions and (B) upon payment of the Parent Termination Fee pursuant to this Section 9.3 (Termination Fees), none of Parent, any of the Parent Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc)
Termination Fees. (ai) In the event that If this Agreement is terminated: terminated (i) by Parent pursuant to Section 7.1(d)(i) or (iix) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i10.01(d)(i) or (iiy) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made10.01(c)(i), then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two to Parent (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closingits designee), substantially concurrently with the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event case of any such a termination by the Company, or as promptly as reasonably practicable (ii) no later than and, in any event, within two (2) business days after the Company’s receipt of Parent’s termination notice Business Days following such termination) in the event case of any such a termination by Parent. In addition, if in each case, payable by wire transfer of immediately available funds.
(ii) If (A) after the date of this Agreement and prior to the receipt of the Company Stockholder Approval, a Takeover bona fide Acquisition Proposal has shall have been made and publicly made, publicly announced before this Agreement has or otherwise communicated to the Company Board or to the Company or shall have been voted on by disclosed to the shareholders stockholders of the CompanyCompany (and in any such case, such Acquisition Proposal is not publicly withdrawn at least four (4) Business Days prior to the Company Stockholder Meeting), (B) thereafter, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii10.01(b)(i) (at a time when Parent could have terminated this Agreement pursuant to such provision), Section 10.01(b)(iii) or Section 10.01(c)(ii), and the Company consummates a transaction pursuant to any Takeover Proposal (C) within 12 twelve (12) months after such termination datetermination, any Acquisition Proposal is consummated or the Company enters into a definitive agreement in respect of any Acquisition Proposal, then concurrently with the closing of such transaction, the Company shall pay to Parent (or its designee) the Company Termination Fee less any Expense Reimbursement previously paid by wire transfer of same-day funds on or prior to the Company.
date that is the earlier of (cx) Each the date of consummation of such Acquisition Proposal, and (y) the date of the Company, Parent and Merger Sub acknowledges that the agreements contained in ’s entry into such definitive agreement. For purposes of this Section 7.3 are an integral part 11.04(b), all references to “15%” and “85%” in the definition of Transactions. “Acquisition Proposal” shall be deemed to be references to “50%.”
(iii) In the no event that shall the Company shall fail be required to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full (1) occasion. Parent, Intermediate Merger Subsidiary, and Merger Subsidiary agree that, upon any termination of this Agreement under circumstances where the Company Termination Fee be is payable by the Company pursuant to this Section 7.311.04 and such Company Termination Fee is paid in full, Parent, Intermediate Merger Subsidiary, and Merger Subsidiary shall be precluded from any other remedy against the Company, at Law or in equity or otherwise, and neither Parent, Intermediate Merger Subsidiary, nor Merger Subsidiary shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders or Affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated hereby.
(iv) If this Agreement is terminated by the Company pursuant to Section 10.01(d)(iii), Parent shall pay to the Company as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination), the Parent Termination Fee by wire transfer of immediately available funds.
(v) In no event shall Parent be required to pay the Parent Termination Fee on more than one (1) occasion. The Company agrees that upon any termination of this Agreement under circumstances where the Parent Termination Fee is payable by Parent pursuant to this Section 11.04 and such Parent Termination Fee is actually paid in full, the Company shall be precluded from any other remedy against Parent, Intermediate Merger Subsidiary, or Merger Subsidiary, at Law or in equity or otherwise, and the Company shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Parent, Intermediate Merger Subsidiary, Merger Subsidiary, any of their respective Subsidiaries, or any of their respective directors, officers, employees, partners, managers, members, stockholders or Affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Kraton Corp)
Termination Fees. (a) In the event that If
(i) this Agreement is terminated: terminated (ix) by Parent pursuant to Section 7.1(d)(i) Buyer or (ii) by the Company pursuant to Section 7.1(c)(i8.1(b) (if the party terminating this Agreement is permitted to do so pursuant to Section 8.1(b)(ii)), then(y) by Buyer or the Company pursuant to Section 8.1(d) or (z) by Buyer pursuant to Section 8.1(f); provided, in the case of (z) only, that all conditions set forth in Section 7.1, 7.2 and 7.3 hereof have been satisfied (other than those conditions that, by their own terms, cannot be satisfied until the Closing, are solely within the Company’s control, or cannot be satisfied solely as a result of the material breach that gives rise to Buyer’s right to terminate pursuant to Section 8.1(f)), and in each case, either (A) within nine (9) months after such termination the Company enters into, recommends or submits to the stockholders of the Company for adoption or acceptance an Affiliate Competing Proposal or any agreement with respect to an Affiliate Competing Proposal, or an Affiliate Qualifying Transaction is consummated or (B) between the date hereof and the termination of this Agreement a Competing Proposal is publicly proposed or publicly disclosed prior to, and, in each case, not publicly withdrawn at the time of, the termination of this Agreement and within nine (9) months after such termination (i) the Company consummates a Qualifying Transaction, or (ii) the Company enters into, recommends or submits to the stockholders of the Company for adoption or acceptance an agreement with respect to a Qualifying Transaction which Qualifying Transaction is consummated at anytime (the Competing Proposal so entered into, recommended, submitted, agreed to or consummated need not be the same Competing Proposal that was publicly proposed or disclosed); or
(ii) this Agreement is terminated by (A) the Company pursuant to Section 8.1(g) or (B) Buyer pursuant to Section 8.1(h); then in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 Buyer a fee of U.S.$300,000,000 in cash (the “Company Termination Fee”) and the Company shall have no further liability with respect to this Agreement or the transactions contemplated hereby to Buyer (provided that nothing herein shall release any party from liability for intentional breach or fraud). If , such payment to be made, (w) in the case of termination pursuant to Section 8.2(a)(i)(A), upon entering into the agreement with respect to an Affiliate Qualifying Transaction, (x) Parent terminates this Agreement in the case of termination pursuant to Section 7.1(d)(ii8.2(a)(i)(B), upon consummation of the Qualifying Transaction, (y) due in the case of termination pursuant to an intentional breach Section 8.2(a)(ii)(A), concurrently with such termination or (z) termination pursuant to Section 8.2(a)(ii)(B), within five (5) business days after the termination of this Agreement; it being understood that in no event shall the Company be required to pay the fee referred to in this Section 8.2(a) on more than one occasion. Any such payment shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law.
(b) If this Agreement is terminated by the Company pursuant to Section 8.1(b) or Section 8.1(e) or by either the Company or Buyer pursuant to Section 8.1(c), and at such time:
(i) all conditions to Buyer’s obligation to consummate the Merger shall have been satisfied and Buyer or its subsidiaries have not received funds pursuant to the Financing sufficient to consummate the Merger and the transactions contemplated hereby; or
(ii) all conditions to Buyer’s obligation to consummate the Merger shall have been satisfied, other than any of the conditions set forth in Sections 7.1(b), 7.1(c) or 7.1(d) and except insofar as any condition requires the delivery of officer’s certificates, then (x) in the event of clause (i) above, Buyer shall pay to the Company a fee of U.S.$300,000,000 in cash or (y) prior in the event of clause (ii) above, Buyer shall pay to any such termination, a Takeover Proposal has been made, then the Company a fee of U.S.$500,000,000 in cash (such payment, as applicable, the “Buyer Termination Fee”), and, in either case, neither Buyer nor Acquisition Sub shall pay Parent have any further liability with respect to this Agreement or the transactions contemplated hereby to the Company (provided that nothing herein shall release any party from liability for intentional breach or fraud; provided that neither Buyer nor Acquisition Sub shall have any liability for intentional breach or fraud in excess of $300,000,000 less any amounts previously paid in respect of the Buyer Termination Fee at (the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i“Intentional Breach Damages Cap”), the Company shall pay the Company Termination Fee promptly, but in no event more than such payment to be made within two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3Agreement, the term “Takeover Proposal” shall have the meaning assigned to such term it being understood that in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee Buyer be required to pay fees or damages payable by the Company pursuant to this Section 7.38.2(b) on more than one occasion. Any such payment shall be reduced by any amounts as may be required to be deducted or withheld therefrom under applicable Tax Law. Notwithstanding anything in this Agreement to the contrary, in no event shall any Buyer Related Party (as defined in the Equity Commitment Letters) have any liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby except as specifically provided in the Guarantee.
Appears in 1 contract
Termination Fees. (a) In the event that that:
(i) (A) after the date hereof, an Alternative Proposal shall have been made known to the Company’s stockholders generally and not withdrawn and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated: (iterminated by the Company or Parent pursuant to Section 8.1(b)(i) or, prior to the Offer Closing, by Parent pursuant to Section 7.1(d)(i8.1(d), and (C) within twelve (12) months of the date this Agreement is terminated (I) the Company consummates any transaction contemplated by any Alternative Proposal or (II) the Company enters into a definitive agreement with respect to any Alternative Proposal which is subsequently consummated at any time;
(ii) by (A) after the date hereof, an Alternative Proposal shall have been made known or communicated to senior management or the Board of Directors of the Company and not withdrawn and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by Parent pursuant to Section 7.1(c)(i8.1(d) in connection with an intentional breach, and (C) within twelve (12) months of the date this Agreement is terminated (I) the Company consummates any transaction contemplated by any Alternative Proposal or (II) the Company enters into a definitive agreement with respect to any Alternative Proposal which is subsequently consummated at any time; or
(iii) this Agreement is terminated by Parent or the Company, as applicable, pursuant to Section 8.1(e), thenSection 8.1(f), Section 8.1(g) or Section 8.1(h); the Company shall pay to Parent a termination fee of $2,825,000 in any such cash (the “Termination Fee”), it being understood that in no event under clause shall the Company be required to pay the Termination Fee on more than one occasion; provided, however, that for purposes of Section 8.2(a)(i)(C) and Section 8.2(a)(ii)(C), all references to “15%” in the definition of “Alternative Proposal” shall be deemed to refer to “50%” instead.
(b) Any payment required to be made pursuant to clauses (i) or (ii) of this Section 7.3(a)8.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or consummation of any transaction contemplated by, any Alternative Proposal (and in any event not later than two (2) Business Days after delivery to the Company of notice of demand for payment); and any payment required to be made pursuant to clause (iii) of Section 8.2(a) shall pay be made to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates promptly following termination of this Agreement pursuant (and in any event not later than two (2) Business Days after delivery to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposalnotice of demand for payment); provided, that such closing occurs within 12 months after in the event that any payment is required to be made pursuant to clause (iii) of Section 8.2(a) in connection with a termination date. If Parent shall have terminated of this Agreement by the Company pursuant to Section 7.1(d)(i8.1(g), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to Parent prior to such term in Section 5.2, except that all references therein to 20% termination. Any such payment shall be deemed made by wire transfer of immediately available funds to an account to be references to 50%.designated by Parent
(bc) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.1(c), then in addition to, but without duplication of, any other remedies available to the Company at law, in equity or pursuant to any other provisions of this Agreement, Parent shall pay promptly following termination of this Agreement (and in any event not later than two (2) Business Days after delivery to ParentParent of notice of demand for payment; provided, by wire transfer, an amount which that Parent shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of be required to pay any such termination by the Company, or (ii) expenses to which it reasonably objects until no later than two (2) business days Business Days after Parent and Company, acting reasonably, agree as to the Company’s receipt amount of Parent’s termination notice such expenses due) reimburse Company for all of its reasonable and documented expenses incurred in connection with the negotiation of this Agreement and with the transactions contemplated herein. In the event that Parent fails to pay when due any amounts payable under this Section 8.2(c), then (1) Parent shall reimburse the Company for all reasonable and documented costs and expenses (including disbursements and reasonable fees of any counsel) incurred in connection with the collection of such termination by Parent. In additionoverdue amount, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted (2) Parent shall pay to Company interest on by such overdue amount (for the shareholders period commencing as of the Company, this Agreement date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is terminated by Parent or actually paid in full) at a rate per annum equal to the Company pursuant prime rate published in The Wall Street Journal on the date such payment was required to Section 7.1(b)(iiibe made plus three percent (3%), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(cd) Each of the Company, The Company and Parent and Merger Sub acknowledges acknowledge that the agreements contained in this Section 7.3 8.2 are an integral part of Transactionsthe transactions contemplated by this Agreement, and that, without these agreements, neither party would enter into this Agreement. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be The amounts payable by the Company pursuant to this Section 7.38.2 constitute liquidated damages and not a penalty and shall be the sole monetary remedy of Parent in the event of termination of this Agreement on the bases specified in this Section 8.2. In the event that the Company fails to pay when due any amounts payable under this Section 8.2, then (1) the Company shall reimburse Parent for all reasonable and documented costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with the collection of such overdue amount, and (2) the Company payment shall pay to Parent interest on such overdue amount (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the prime rate published in The Wall Street Journal on the date such payment was required to be made plus three percent (3%).
Appears in 1 contract
Sources: Merger Agreement (Span America Medical Systems Inc)
Termination Fees. (a) In If, but only if, the event that this Agreement is terminatedterminated by: (i) (x) either Parent or the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by Parent pursuant to Section 7.1(d)(i8.1(d)(i) or Section 8.1(d)(ii)(x), and (iiy) by the Company pursuant (A) receives or has received a Competing Proposal from a Third Party after the date hereof, which Competing Proposal is publicly disclosed either (I) at or prior to Section 7.1(c)(ithe time of the Stockholders’ Meeting or (II) prior to the termination of this Agreement if there has been no Stockholders’ Meeting, and (B) within twelve (12) months of the termination of this Agreement, consummates a transaction in connection with a Competing Proposal (regardless of whether such Competing Proposal is the same one referred to in clause (A) above), then, in any such event under clause (i) or (ii) of this Section 7.3(a), then the Company shall pay pay, or cause to be paid, to Parent (or such person who may be designated by Parent, by wire transfer, ) an amount equal to $1,300,000 50,000,000 (the “Company Termination Fee”). If ) not later than the second (x2nd) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by Business Day following the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing date of the consummation of such transaction pursuant to the Takeover arising from such Competing Proposal; provided, however, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.3(a)(i), the term references to “Takeover Proposalfifteen percent (15%)” shall have in the meaning assigned to such term in Section 5.2, except that all references therein to 20% definition of Competing Proposal shall be deemed to be references to “more than fifty percent (50%.)”; and provided, further, that any Parent Expenses previously paid by the Company to Parent pursuant to Section 8.3(a)(ii) shall be credited towards the payment of the Termination Fee;
(bii) In Parent pursuant to Section 8.1(b)(iii) or Section 8.1(d)(i), the Company shall, subject to the delivery by Parent of an invoice therefor and reasonable documentation thereof, reimburse Parent for all Expenses by paying, or causing to be paid, to Parent the amount thereof not later than the second (2nd) Business Day following request therefor by Parent; provided, however, that the Company shall not be required to pay more than an aggregate of $9,500,000 pursuant to this Section 8.3(a)(ii) (the “Parent Expenses”);
(iii) the Company pursuant to Section 8.1(c)(ii) or Parent pursuant to Section 8.1(d)(ii)(y), then the Company shall pay, or cause to be paid, to Parent the Termination Fee concurrently with such termination; provided, however, that in the event that this Agreement is terminated pursuant to Section 8.1(c)(ii) or Section 8.1(d)(ii)(y) and either (x) such termination occurs on or before the Solicitation Period End Date, or (y) the Company enters into a definitive agreement with an Exempted Person with respect to a Superior Proposal in accordance with Section 6.6 on or before the Cut-Off Date, then the Company shall pay, or cause to be paid, to Parent, or such person who may be designated by Parent or Parent, a Termination Fee equal to $30,000,000 instead of $50,000,000; or
(iv) the Company pursuant to Section 7.1(b)(iii8.1(c)(i), Section 8.1(c)(iii) or Section 8.1(c)(iv), then (A) if the proceeds of the Financing are unavailable at the Offer Closing (with respect to amounts required to consummate the Offer) or the Merger Closing (with respect to amounts required to consummate the Merger) (other than as a result of a breach by Parent or Acquisition Sub of Section 6.12(b)) pursuant to the terms of the Financing Commitments, and all other the conditions set forth in Article VI (excluding under Annex I or Section 6.1(d) and 7.1 or Section 6.2(d)) shall 7.2, as applicable, have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Offer Closing or the Merger Closing, as applicable), Parent shall pay, or cause to be paid, to the Company an amount equal to $50,000,000 (the “Reverse Termination Fee”) not later than the second (2nd) Business Day following such termination or (B) if the proceeds of the Financing are available to be drawn down at the Offer Closing (with respect to amounts required to consummate the Offer) or the Merger Closing (with respect to amounts required to consummate the Merger) pursuant to the terms of the Financing Commitments or if the failure of the proceeds of the Financing to be available to be drawn down at the Offer Closing (with respect to amounts required to consummate the Offer) or the Merger Closing (with respect to amounts required to consummate the Merger) pursuant to the terms of the Financing Commitments is the result of a breach by Parent or Acquisition Sub of Section 6.12(b), and all the conditions under Annex I or Section 7.1 or Section 7.2, as applicable, have been satisfied (other than those conditions that by their nature are to be satisfied at the Offer Closing or the Merger Closing, as applicable) and the Offer Closing and the Merger Closing do not occur, then (y) Parent shall pay, or cause to be paid, to the Company an amount equal to the Reverse Termination Fee not later than the second (2nd) Business Day following such termination; and (z) the Company shall pay be entitled to Parent, by wire transfer, payment from Parent of an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after equal to the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In additionaggregate losses, if a Takeover Proposal has been made and publicly announced before any, in excess of the Reverse Termination Fee resulting from Parent or Acquisition Sub’s material breach of this Agreement has been voted on by (but subject to the shareholders Parent Liability Limitation). For the avoidance of the Company, doubt and notwithstanding any other provision in this Agreement is terminated by Parent or to the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transactioncontrary, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each aggregate liability of the Company, Parent and Merger Acquisition Sub acknowledges under this Agreement shall in no event exceed that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3Liability Limitation.
Appears in 1 contract
Sources: Merger Agreement (Gymboree Corp)
Termination Fees. (a) In Notwithstanding any provision in this Agreement to the event that contrary, if:
(1) this Agreement is terminated: (i) by Parent terminated pursuant to Section 7.1(d)(i7.1(g) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a7.1(h), the Company shall pay to Parent, Parent or an affiliate of Parent designated by wire transfer, an amount equal to Parent a fee of $1,300,000 55,700,000 in cash (the “Company Termination Fee”). If , (x) Parent terminates this Agreement for any termination pursuant to Section 7.1(d)(ii) due 7.1(g), prior to an intentional breach by the Company or simultaneous with such termination and (y) prior to for any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i7.1(h), the Company shall pay the Company Termination Fee promptly, but in no event more later than two (2) business days Business Days after such termination;
(2) prior to the date of receipt of Parent’s termination notice. For purposes of this Section 7.3Agreement, (A) any bona fide Alternative Proposal (provided, that any reference in the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein definition of Alternative Proposal to 20% shall be deemed to be references a reference to 50%.
% for the purposes of this clause (bii)) In is publicly proposed or otherwise privately communicated to the event that Company’s Board of Directors, (B) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(b) or Section 7.1(d) or by Parent pursuant to Section 7.1(f) and all other conditions set forth in Article VI (excluding Section 6.1(dC) and Section 6.2(d)no later than nine (9) months after such termination, any definitive agreement providing for any Alternative Proposal shall have been satisfied entered into or waived any Alternative Proposal consummated (other than those conditions that by their nature are to in each case which need not be satisfied at the Closingsame Alternative Proposal), then in any such event the Company shall pay to ParentParent the Company Termination Fee, simultaneously with the consummation of such Alternative Proposal or any Alternative Proposal relating thereto.
(b) In the event the Company pays the Company Termination Fee to Parent pursuant to Section 7.2(a) above, the Company shall have no further liability with respect to this Agreement or the transactions contemplated by wire transferthis Agreement to Parent or its stockholders (provided, an amount which that nothing in this Agreement shall relieve the Company from liability arising out of willful breach or fraud; provided, further, that notwithstanding the foregoing, to the extent the Company Termination Fee is paid to Parent pursuant to Section 7.2(a), the maximum aggregate liability (inclusive of the Company Termination Fee) of the Company shall not exceed $600,000 and which 139,200,000), it being understood that in no event shall represent reimbursement the Company be required to pay the Company Termination Fee on more than one occasion. Any such payment shall be net of documented out-of-pocket costs and expenses any amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign Tax Law.
(including c) In the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with event that this Agreement is terminated by the Company pursuant to Section 7.1(e)(ii) and the Transactions notice of termination includes a demand, which demand shall be irrevocable, to receive the Parent Termination Fee (such amounta “Parent Termination Fee Notice”), Parent shall pay $75,000,000 (the “Expense ReimbursementParent Termination Fee”). Such payment shall occur (i) concurrent with termination in to the event of any such termination by the Company, or (ii) Company no later than two (2) business days Business Days after such termination, provided that the Company’s receipt right to receive the Parent Termination Fee and the expense reimbursement pursuant to Section 7.2(d) shall terminate and be of no further force or effect if, following any termination of this Agreement pursuant to Section 7.1(e)(ii), the Company either (x) fails to include a Parent Termination Fee Notice in connection with such termination by the Company or (y) makes any demand or claim for Company Damages under the Limited Guarantee or in any Action other than for the payment of the Parent Termination Fee and expense reimbursement pursuant to Sections 5.11, 5.12 or 7.2(d). In the event the Company delivers a Parent Termination Fee Notice, the right to receive the Parent Termination Fee and the expense reimbursement pursuant to Section 7.2(d) shall be the sole and exclusive remedy of the Company and its affiliates against Parent, Merger Sub and any of their respective current, former or future directors, officers, employees, agents, partners, managers, members, affiliates, stockholders, assignees, representatives or affiliates for any loss or damage suffered in connection with this Agreement or the transactions contemplated hereby (“Company Damages”). In the event that Parent fails to pay the Parent Termination Fee and/or the expense reimbursement pursuant to Section 7.2(d) when the payment thereof is not the subject of a bona fide dispute, the Company shall be entitled to seek and receive, in addition to the Parent Termination Fee and/or the expense reimbursement pursuant to Section 7.2(d), interest thereon and the Company’s termination notice costs and expenses of collection thereof (including reasonable attorneys’ fees and expenses). Subject to the terms of this Agreement (including Section 7.3(e) and the last sentence of Section 7.1), the Company shall be entitled to enforce all of its rights under this Agreement in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before that the Company terminates this Agreement has been voted on by pursuant to Section 7.1(e)(ii) and does not deliver a Parent Termination Fee Notice.
(d) In the shareholders of the Company, event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), 7.1(e)(ii) and the Company consummates delivers a transaction pursuant to any Takeover Proposal within 12 months after such termination dateParent Termination Fee Notice in accordance with the requirements of Sections 7.1(e)(ii) and Section 7.2(c), then concurrently with the closing Parent shall also promptly (and in any event within two (2) Business Days of such transaction, termination) pay the Company shall pay Parent $5,000,000 in reimbursement of expenses incurred by the Company Termination Fee less any Expense Reimbursement previously paid by the Companyin connection with this Agreement.
(ce) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained Anything in this Section 7.3 are an integral part Agreement to the contrary notwithstanding, (i) the maximum aggregate liability of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs Company Damages shall be limited to $139,200,000 (the “Parent Liability Limitation”), and expenses actually incurred in no event shall the Company or accrued by Parent any Company Subsidiaries seek any other Company Damages or any other recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Parent, Merger Sub (including reasonable expenses or any Sponsor or Parent Affiliate in excess of counsel) the Parent Liability Limitation in connection with this Agreement or the collection transactions contemplated hereby and (ii) the Company acknowledges and agrees that it has no right of recovery against, and no personal liability shall attach to, in each case with respect to Company Damages, Sponsor or the former, current or future stockholders, controlling persons, directors, officers, employees, agents, affiliates, members, managers, general or limited partners or assignees of Sponsor or Parent or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate, agent or assignee of any of the foregoing (each a “Sponsor or Parent Affiliate”), through the Parent or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of the Parent against Sponsor or Parent Affiliate, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise, except for its rights to recover from Sponsor (but not any Sponsor or Parent Affiliate (including any general partner or managing member)) under and enforcement to the extent provided in the Limited Guarantee of this Section 7.3. If Sponsor for benefit of the Company fails dated the date hereof (the “Limited Guarantee”) and subject to promptly make any payment required the Parent Liability Limitation and the other limitations described therein. Recourse against the Sponsor under this Section 7.3 the Limited Guarantee shall be the sole and exclusive remedy of the Company and all of its affiliates against Sponsor and Parent commences a suit for paymentAffiliates in respect of any liabilities or obligations arising under, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred or in connection with such suit and shall pay interest on with, this Agreement or the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3transactions contemplated hereby.
Appears in 1 contract
Termination Fees. (a) In the event that If this Agreement is shall be validly terminated: :
(i) by Parent pursuant to Section 7.1(d)(i(x) or (ii) by the Company pursuant to Section 7.1(c)(i8.1(c)(ii) then, prior to, and as a condition to such termination, or (y) by Buyer pursuant to Section 8.1(d)(ii), thenthen within two (2) Business Days of such termination, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay Buyer, subject to Parentapplicable Law and Section 8.2(d), by wire transfer, a non-refundable fee in an amount equal to $1,300,000 11,029,889 (the “Company Termination Fee”). If ; or
(ii) (A) by (x) Parent terminates this Agreement Company pursuant to Section 7.1(d)(ii8.1(b)(ii) due at a time when Buyer would have been entitled to an intentional breach by the Company and terminate this Agreement under Section 8.1(d)(iii) or (y) prior Buyer pursuant to any such terminationSection 8.1(d)(iii), (B) a Takeover Proposal has been madepublicly disclosed after the date of this Agreement and, then prior to the date of such termination, has not been withdrawn, and (C) Company enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period), then, within two (2) Business Days after the date that such Takeover Proposal is consummated, Company shall pay Parent the Buyer, subject to applicable Law and Section 8.2(d), the Company Termination Fee at the closing of the transaction pursuant to the Takeover ProposalFee; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For for purposes of this Section 7.38.2(a)(ii), the term “Takeover Proposal” shall will have the meaning assigned to such term in Section 5.2Article IX, except that all references therein to 20% shall “25%” will be deemed to be references to “50%”. The Company Termination Fee shall be paid by wire transfer of immediately available funds to Buyer or, at the election of Buyer, to one of its Consolidated Subsidiaries, to an account designated in writing to Company by Buyer if Buyer shall have furnished to Company wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check; it being understood that in no event shall Company be required to pay the Company Termination Fee on more than one occasion.
(b) In the event that If this Agreement is terminated (i) by Parent Buyer pursuant to Section 8.1(b)(ii) at a time when Company would have been entitled to terminate this Agreement under Section 8.1(c)(iii) or the (ii) by Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.1(c)(iii), the Company then Buyer shall pay to Parent, by wire transfer, Company a non-refundable fee in an amount which shall not exceed equal to $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses 11,029,889 (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense ReimbursementBuyer Termination Fee”). Such payment ) (which fee shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than be payable within two (2) business days after the Company’s receipt such termination, by wire transfer of Parent’s termination notice immediately available funds to an account designated in the event of any such termination writing by Parent. In addition, Company if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall have furnished to Buyer wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check); it being understood that in no event shall Buyer be required to pay Parent the Company Buyer Termination Fee less any Expense Reimbursement previously paid by the Companyon more than one occasion.
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.8, (i) in the event the Company Termination Fee is payable pursuant to Section 8.2(a), Buyer’s right to receive payment from Company of the Company Termination Fee in accordance with Section 8.2(a), shall constitute the sole and exclusive monetary remedy of Buyer and Merger Sub and Buyer Related Parties against Company and its subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder, and upon payment of such amount, none of the Company Related Parties shall have any further Liability relating to or arising out of this Agreement or the Transactions provided that in no event shall Company be subject to any Liability in connection with this Agreement or the Transactions in an aggregate amount (including for monetary damages (including pursuant to Section 8.3) and any payment of the Company Termination Fee) in excess of an aggregate amount equal to the Company Termination Fee (the “Company Liability Cap”) (except in all cases that Company shall also be obligated with respect to its applicable obligations under Section 8.2(d) and Section 8.4), and (ii) in the event the Buyer Termination Fee is payable pursuant to Section 8.2(b), Company’s right to receive payment from Buyer of the Buyer Termination Fee in accordance with Section 8.2(b) (or from the Guarantor pursuant to the Guaranty), shall constitute the sole and exclusive monetary remedy of Company and the Company Related Parties against Buyer and its subsidiaries, Merger Sub, the Guarantor, the Financing Sources and any of their respective former, current or future direct or indirect general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Buyer Related Parties”) for all losses and damages suffered as a result of the failure of the Transactions, the Equity Commitment Letter or Guaranty to be consummated or for a breach or failure to perform the applicable provisions hereunder, and upon payment of such amount, none of the Buyer Related Parties shall have any further Liability relating to or arising out of this Agreement, the Equity Commitment Letter or the Guaranty, or the Transactions; provided that, in no event shall Buyer and the Buyer Related Parties be subject to any Liability in connection with this Agreement or the Transactions in an aggregate amount (including for monetary damages (including pursuant to Section 8.3) and any payment of the Buyer Termination Fee) in excess of an aggregate amount equal to the Buyer Termination Fee (the “Buyer Liability Cap”) (except in all cases that Buyer shall also be obligated with respect to its indemnification obligations contained in Section 6.12(h) and its applicable obligations under Section 8.2(d) and Section 8.4); provided, further, that the Buyer Termination Fee shall be reduced by the amount of any payments in respect of indemnification obligations or for other losses, damages or expenses made by the Buyer or Buyer Related Parties to Company.
(d) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are 8.2 is an integral part of the Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or , (ii) each of the Company Termination Fee when dueand the Buyer Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate, with respect to the Company Termination Fee, Buyer and its Affiliates and with respect to the Buyer Termination Fee, Company and its Affiliates, in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision, and (iii) without the agreements contained in this Section 8.2, the parties hereto would not enter into this Agreement, accordingly, if Company or Buyer, as the case may be, fails to timely pay any amount due pursuant to this Section 8.2 and, in order to obtain such payment, either Company or Buyer, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.2, such paying party shall reimburse Parent and Merger Sub for all reasonable pay the other party its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay suit, together with interest on such amount at the amount annual rate of the payment at a rate equal to 300 basis points above five percent (5%) plus the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable law.
Appears in 1 contract
Sources: Merger Agreement (Goldman Sachs Private Middle Market Credit LLC)
Termination Fees. (a) In If (i) Acquiror or the event that Company terminates this Agreement pursuant to Section 8.1(b) or Section 8.1(d) or Acquiror terminates this Agreement pursuant to Section 8.1(f) (or this Agreement is terminated: terminated under any other provision of Section 8.1, and at such time could have been terminated under any of the foregoing Sections), (iii) by Parent a Company Takeover Proposal shall have been made or publicly made known after the date of this Agreement and not, as applicable, (x) in the case of a Company Takeover Proposal that has not been publicly made known after the date of this Agreement, withdrawn in writing in good faith (with a copy of such written withdrawal having been delivered to Acquiror), or (y) in the case of a proposal made known publicly, publicly withdrawn, in each case ((x) and (y)), prior to such termination (in the case of a termination pursuant to Section 7.1(d)(i8.1(b) or Section 8.1(f)) or the later of the Company Special Meeting and any postponement or adjournment thereof (iiin the case of a termination pursuant to Section 8.1(d)) and (iii) at any time on or prior to the first (1st) anniversary of such termination, the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, any Company Takeover Proposal (provided that references in the definition of “Company Takeover Proposal” to twenty percent (20%) shall be deemed to be fifty percent (50%)) with any person (a “Company Takeover Transaction”), the Company shall pay or cause to be paid to Acquiror or its designee the Termination Fee, by wire transfer (to an account designated by Acquiror) in immediately available funds, upon the earlier of entering into such definitive agreement with respect to any Company Takeover Transaction and the consummation of any Company Takeover Transaction.
(b) If Acquiror terminates this Agreement pursuant to Section 8.1(h), the Company shall pay or cause to be paid to Acquiror or its designee the Termination Fee, by wire transfer (to an account designated by Acquiror) in immediately available funds, within three (3) Business Days after such termination.
(c) If this Agreement is terminated by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a8.1(g), the Company shall pay or cause to Parentbe paid to Acquiror or its designee the Termination Fee, by wire transfer, an amount equal to $1,300,000 transfer (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach account designated by the Company and (yAcquiror) in immediately available funds, prior to any or concurrently with, and as a condition to the effectiveness of, such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 1 contract
Sources: Merger Agreement (Vca Inc)
Termination Fees. (ai) In the event that If this Agreement is terminated: terminated (i) by Parent pursuant to Section 7.1(d)(i) or (iiA) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i10.01(d)(i) or (iiB) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii10.01(c)(i) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been madeor Section 10.01(c)(ii), then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptlyto Parent (or its designee), but substantially concurrently with the termination in no event more than the case of a termination by the Company, or as promptly as reasonably practicable (and, in any event, within two (2) business days Business Days following such termination) in the case of a termination by Parent, in each case, payable by wire transfer of immediately available funds.
(ii) If (A) after the date of this Agreement and prior to the receipt of Parent’s termination notice. For purposes of this Section 7.3the Company Stockholder Approval, the term “Takeover Proposal” a bona fide Acquisition Proposal shall have been publicly made, publicly announced or otherwise communicated to the meaning assigned Company Board or to the Company or shall have been made directly to the stockholders of the Company generally (and in, any such term in Section 5.2case, except that all references therein to 20% shall be deemed to be references to 50%.
such Acquisition Proposal is not withdrawn), (bB) In the event that thereafter, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii10.01(b)(i) (at a time when Parent could have terminated this Agreement pursuant to such provision), Section 10.01(b)(iii) or Section 10.01(c)(ii), and (C) within twelve (12) months after such termination, the Company consummates any Acquisition Proposal or enters into a definitive agreement in respect of any Acquisition Proposal that is later consummated, then the Company shall pay to Parent the Company Termination Fee by wire transfer of same-day funds on the date of consummation of such Acquisition Proposal. For purposes of this Section 11.04(b)(ii), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”.
(iii) If this Agreement is terminated by Parent or the Company pursuant to Section 10.01(b)(ii), if the Restraint is in connection with an Antitrust Law or the Order is pursuant to any Antitrust Law, then Parent shall pay, by wire transfer of immediately available funds to an account designated in writing by the Company, to the Company $55,000,000 (the “Parent Termination Fee”) concurrently with such termination, in the case of a termination by Parent, or within two (2) Business Days following such termination, in the case of a termination by the Company; provided, that no Parent Termination Fee shall be payable by Parent pursuant this Section 11.04(b)(iii) if Parent terminates this Agreement pursuant to Section 10.01(b)(ii) at a time when the Company is not permitted to terminate this Agreement pursuant to such section as a result of the provisos set forth therein.
(iv) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 10.01(b)(i) and all other (B) as of the time of such termination, the only conditions to Closing set forth in Article VI (excluding Section 6.1(d) 9.01 and Section 6.2(d)) shall 9.02 that have not been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied if the Closing Date were the date the notice of termination is delivered) are those set forth in Section 9.01(b) or Section 9.01(c) (solely due to a Restraint arising under, or an Applicable Law that is, an Antitrust Law), the Company then Parent shall pay to Parentpay, by wire transfertransfer of immediately available funds to an account designated in writing by the Company, an amount which to the Company the Parent Termination Fee concurrently with such termination, in the case of a termination by Parent, or within two (2) Business Days following such termination, in the case of a termination by the Company; provided, that no Parent Termination Fee shall be payable by Parent pursuant this Section 11.04(b)(iv) if Parent terminates this Agreement pursuant to Section 10.01(b)(i) at a time when the Company is not exceed $600,000 and which permitted to terminate this Agreement pursuant to such section as a result of the provisos set forth therein.
(v) In no event shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Company be required to pay the Company Termination Fee on more than one occasion. Parent and Merger Sub Subsidiary agree that if the Company Termination Fee is paid in full to Parent pursuant to Section 11.04(b)(i) or Section 11.04(b)(ii), Parent and Merger Subsidiary shall be precluded from any other remedy against the Company, at law or in equity or otherwise, and neither Parent nor Merger Subsidiary shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders or Affiliates or their respective Representatives in connection with this Agreement and or the Transactions transactions contemplated hereby.
(such amount, vi) In no event shall Parent be required to pay the “Expense Reimbursement”)Parent Termination Fee on more than one occasion. Such payment shall occur (i) concurrent with termination The Company agrees that if the Parent Termination Fee is paid in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or full to the Company pursuant to Section 7.1(b)(iii11.04(b)(iii) or Section 11.04(b)(iv), then the Company shall be precluded from any other remedy against Parent or Merger Subsidiary, at law or in equity or otherwise, and the Company consummates a transaction pursuant shall not seek to obtain any Takeover Proposal within 12 months after such termination daterecovery, then concurrently with the closing judgment, or damages of such transactionany kind, the Company shall pay Parent the Company Termination Fee less including consequential, indirect, or punitive damages, against Parent, Merger Subsidiary or any Expense Reimbursement previously paid by the Company.
(c) Each of the Companytheir respective Subsidiaries or any of their respective directors, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement officers, employees, partners, managers, members, stockholders or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred Affiliates or accrued by Parent or Merger Sub (including reasonable expenses of counsel) their respective Representatives in connection with this Agreement or the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Sportsman's Warehouse Holdings, Inc.)
Termination Fees. (a) In the event that If this Agreement is terminated: terminated by:
(i) by Parent pursuant to Section 7.1(d)(i) on the basis of a breach of a covenant or (ii) by agreement contained in this Agreement or either Parent or the Company pursuant to Section 7.1(c)(i), then, 7.1(b)(i) or Section 7.1(b)(iii) and in any such event under clause case (iA) prior to such termination (or prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Acquisition Proposal that has been made after the date of this Agreement shall have been publicly disclosed and not publicly withdrawn prior to such date and (B) within twelve (12) months after such termination, a Company Acquisition Proposal is consummated or the Company enters into a definitive agreement with respect to a Company Acquisition Proposal (provided, however, that for purposes of this Section 7.3(a)(i), the references to “twenty percent (20%)” in the definition of Company Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”);
(ii) Parent pursuant to Section 7.1(d)(ii) (or pursuant to any other provision of this Section 7.3(a), the Company shall pay 7.1 if Parent was then entitled to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates terminate this Agreement pursuant to Section 7.1(d)(ii)); or
(iii) due to an intentional breach by the Company and pursuant to Section 7.1(c)(ii); then, in each such case, the Company shall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a) shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (x) in the case of clause (i) above, on the earlier of the date of consummation of, or entry into a definitive agreement with respect to, such Company Acquisition Proposal, (y) in the case of clause (ii) above, promptly, but in no event later than three (3) Business Days after the date of such termination and (z) in the case of clause (iii) above, immediately prior to any such termination, a Takeover Proposal has been madeor concurrently with the termination of this Agreement.
(b) In the event this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii), then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) reasonable and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses, including all fees and expenses (including incurred in connection with the costs Debt Financing and the fees and expenses of counsel) , accountants, investment bankers, experts and consultants, incurred by Parent and Merger Sub in connection with this Agreement and the Transactions transactions contemplated by this Agreement in an amount not to exceed $20,000,000 (such amount, the “Expense ReimbursementParent Expenses”); provided that any payment of the Parent Expenses shall not affect Parent’s right to receive any Company Termination Fee otherwise due under Section 7.3(a), but shall reduce, on a dollar for dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a). Such payment shall occur (i) concurrent with termination in the event of any such termination Any Parent Expenses required to be paid by the CompanyCompany under this Section 7.3(a) shall be made by wire transfer of immediately available funds promptly, or (ii) but in no event later than two three (23) business days Business Days after the Company’s receipt of documentation supporting such Parent Expenses.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(d) Notwithstanding anything to the contrary set forth in this Agreement, Parent’s termination notice in right to receive payment from the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders Company of the Company, this Agreement is terminated by Parent or the Company Termination Fee pursuant to Section 7.1(b)(iii7.3(a) and/or the right to receive payment of the Parent Expenses pursuant to Section 7.3(a), and shall, in circumstances in which the Company consummates a transaction pursuant Termination Fee or Parent Expenses (as applicable) are owed, constitute the sole and exclusive monetary remedy (other than Parent’s right, after having received the Parent Expenses, to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent receive the Company Termination Fee less the Parent Expenses in the circumstances expressly contemplated in Section 7.3(a)) of Parent and Merger Sub against the Company and its Subsidiaries and any Expense Reimbursement previously paid of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or 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 or otherwise, and upon payment of such amounts, none of the CompanyCompany Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to any amounts owing pursuant to Section 7.3(e)(ii)).
(ce) Each of the Company, Parent and Merger Sub parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that transactions contemplated by this Agreement, and (ii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company shall fail or Parent, as applicable, fails to timely pay the Expense Reimbursement any amount due pursuant to this Section 7.3 and, in order to obtain such payment, Parent or the Company Termination Fee when dueCompany, as applicable, commences a suit that results in a judgment against the other for the payment of any amount set forth in this Section 7.3, the Company or Parent, as applicable, shall reimburse Parent and Merger Sub for all reasonable pay the other its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay (including reasonable attorneys’ fees), together with interest on the such amount of the payment at a an annual rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date such payment was required to be made through the payments date such payment was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable actually received, or such lesser rate as is the maximum permitted by the Company pursuant to this Section 7.3applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Welbilt, Inc.)
Termination Fees. (a) In the event that If this Agreement is terminated: terminated by Parent pursuant to Section 9.01(e), then the Company shall pay to Parent (or a person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds within one (1) Business Day following the date of such termination of this Agreement.
(b) If this Agreement is terminated by the Company pursuant to Section 9.01(f), then the Company shall pay to Parent (or a person designated by Parent in writing) the Company Termination Fee by wire transfer of same-day funds, concurrently with, and as a condition to the effectiveness of, such termination of this Agreement.
(c) If (i) after the date hereof, a Takeover Proposal shall have become publicly known and not irrevocably withdrawn at least two (2) Business Days prior to the earliest of the date of such termination, the Outside Date and the then-scheduled expiration date of the Offer, (ii) thereafter, this Agreement is terminated (A) by Parent or the Company pursuant to Section 9.01(b)(i) (and at the then-scheduled expiration date of the Offer as of immediately prior to such termination, all Offer Conditions are satisfied (other than (1) the Minimum Tender Condition, (2) any Offer Condition the failure which to be satisfied was principally caused or resulted from the Company’s breach of this Agreement and (3) those Offer Conditions that by their terms are to be satisfied at the Offer Closing, so long as such conditions are capable of being satisfied at such time) or (B) by Parent pursuant to Section 7.1(d)(i9.01(c)(i) (arising from a breach of the Company’s covenants or agreements set forth in this Agreement), and (iiiii) by within twelve (12) months of such termination, the Company pursuant to Section 7.1(c)(i)or any of its Subsidiaries enters into a definitive acquisition agreement or similar definitive agreement that provides for any Takeover Proposal, or any Takeover Proposal (regardless of when made) is consummated, then, in any such event under clause (i) or (ii) of this Section 7.3(a)case, the Company shall pay to Parent, Parent (or a person designated by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (xParent in writing) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at by wire transfer of same-day funds on the closing earlier of the transaction pursuant to the Takeover Proposal; provided, that date on which any such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), definitive agreement is entered into by the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after or any of its Subsidiaries or the date of receipt of Parent’s termination noticeany such transaction is consummated. For Solely for purposes of this Section 7.39.03(c), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.26.02(a), except that all references to “20%” therein to 20% shall be deemed to be references to “50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Company.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3.
Appears in 1 contract
Sources: Merger Agreement
Termination Fees. (a) In the event that that:
(i) this Agreement is terminated: terminated (iA) by Parent Purchaser pursuant to Section 7.1(d)(i8.1(g) [(Termination for Adverse Recommendation Change)], or (iiB) by the Company pursuant to Section 7.1(c)(i8.1(i) [(Termination for Superior Proposal), then, in any such event under clause (i) or ]; or
(ii) (A) prior to the date of the Company Stockholders’ Meeting, an Alternative Transaction Proposal shall have been publicly made or otherwise publicly communicated to the Company or otherwise generally made known to the stockholders of the Company and not publicly withdrawn, (B) this Agreement is terminated by (1) Purchaser or the Company pursuant to Section 7.3(a8.1(c) [(Termination for End Date)] (other than in circumstances in which the Company could have terminated pursuant to Section 8.1(f) [(Termination for Closing Failure)], or Section 8.1(d) [(Termination for Material Breach)] or Section 8.1(h) [(Termination for failure to obtain Company Stockholder Approval)], or (2) Purchaser pursuant to Section 8.1(e) [(Termination for Company Breach)]), and (C) within twelve (12) months of such termination, the Company shall pay to Parententers into a definitive agreement with respect to, or consummates the transactions contemplated by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Alternative Transaction Proposal; provided, that such closing occurs within 12 months after references to “twenty percent (20%)” in the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date definition of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% Alternative Transaction Proposal shall be deemed to be references to “fifty percent (50%)”; then the Company shall pay to Purchaser the Company Termination Fee. Any fee due under this Section 8.3(a) shall be paid by wire transfer of same-day funds to an account provided in writing by Purchaser to the Company (x) in the case of termination pursuant to clause (i)(A) above, within two (2) Business Days of such termination, (y) in the case of termination pursuant to clause (i)(B) above, concurrently with or prior to such termination or (z) in the case of termination pursuant to clause (ii) above, within two (2) Business Days of the earlier of the date when such definitive agreement is executed or the consummation of the transactions referred to in clause (ii)(C) above. The “Company Termination Fee” means $88,125,000.
(b) In the event that this Agreement is (i) validly terminated by Parent Purchaser or the Company pursuant to Section 7.1(b)(iii8.1(c) and all other conditions set forth in Article VI [(excluding Section 6.1(d) and Section 6.2(dTermination for Failure to Close by End Date)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied ] and, at the Closing)time of such termination, either (A) the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with could have terminated this Agreement and the Transactions pursuant to Section 8.1(f) [(such amount, the “Expense Reimbursement”Termination for Closing Failure). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company], or (B) the Company could have terminated this Agreement pursuant to Section 8.1(d) [(Termination for Material Breach)], (ii) no later than two (2) business days after the Company’s receipt of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is validly terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(d) [(Termination for Material Breach)] or (iii) validly terminated by the Company pursuant to Section 8.1(f) [(Termination for Closing Failure)], Purchaser shall pay, or cause to be paid, to the Company an amount equal to $193,875,000 (the “Reverse Termination Fee”) by wire transfer of same-day funds to an account provided in writing by the Company to Purchaser within two (2) Business Days of such termination. In the event this Agreement is terminated pursuant to Section 8.1(b), and Section 8.1(c), Section 8.1(d) or Section 8.1(f), to the extent not previously paid, Purchaser shall pay to the Company consummates a transaction pursuant to the outstanding balance of any Takeover Proposal Reimbursable Expenses within 12 months after such termination date, then concurrently with the closing two (2) Business Days of such transactiontermination. Notwithstanding anything in this Section 8.3 to the contrary, the Company Recovery Costs (or any equivalent amount that would constitute Recovery Costs) shall pay Parent only become payable in the Company event that the Reverse Termination Fee less any Expense Reimbursement previously paid by the Companyis also payable.
(c) Each of the Company, Parent and Merger Sub parties hereto acknowledges that the agreements contained in this Section 7.3 8.3 are an integral part of Transactionsthe transactions contemplated by this Agreement and that, without these agreements, the parties hereto would not have entered into this Agreement. In Each of the parties hereto acknowledges that each of the Company Termination Fee and the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Purchaser, on the one hand, and Seller and the Company, on the other hand, in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Each party hereto covenants and agrees that it will not take any position that is inconsistent with the immediately preceding sentence. Accordingly, in the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, or Purchaser shall fail to pay the Reverse Termination Fee or any of the outstanding Reimbursable Expenses when due, and in order to obtain such payment, Purchaser, or Seller or the Company, as applicable, commences a suit which results in a judgment against such other party for the payment of any such amount, then the Company or Purchaser, as the case may be, shall reimburse Parent pay to the other party hereto such other party’s reasonable and Merger Sub for all reasonable costs and documented out of pocket expenses actually incurred or accrued by Parent or Merger Sub (including reasonable attorneys’ fees and expenses of counselenforcement) in connection with such suit, together with interest on the collection under amounts owed at the prime lending rate prevailing at such time, as published in The Wall Street Journal (the “Recovery Costs”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.2 [(Effect of Termination)] and enforcement Section 10.13 [(Specific Enforcement)], in the event this Agreement is terminated as contemplated by Section 8.3(b), the Company’s right to terminate this Agreement and receive payment of this the Reverse Termination Fee together with any outstanding Reimbursable Expenses and Recovery Costs pursuant to Section 7.3. If 8.3(b) and Section 8.3(c) shall constitute the Company fails to promptly make any payment required under this Section 7.3 sole and Parent commences a suit for paymentexclusive remedy (whether at Law or in equity, whether in contract or in tort or otherwise) of Seller, the Company and the Company Subsidiaries and any of their respective Affiliates and any of their respective, direct or indirect, former, current or future equityholders, Affiliates, Representatives and their respective successors and assignees (collectively, the “Company Related Parties”) against Purchaser, the Guarantors, the Debt Financing Sources and any of their respective Affiliates and any of their respective, direct or indirect, former, current or future equityholders, Affiliates, Representatives or their respective successors and assignees (collectively, the “Purchaser Related Parties”) for any Loss, Liability or damage suffered as a result of, relating to or arising out of this Agreement, the Guarantee, the Debt Commitment Letter, the Equity Commitment Letter, any other documents and instruments executed by any Purchaser Related Party pursuant hereto or thereto or the transactions contemplated hereby or thereby, including the failure of the transactions contemplated by this Agreement to be consummated, and upon payment of the Reverse Termination Fee, together with any outstanding Reimbursable Expenses and any applicable Recovery Costs pursuant to this Agreement, none of the Purchaser Related Parties shall indemnify Parent have any further Liability relating to or arising out of this Agreement, the Guarantee, the Debt Commitment Letter, the Equity Commitment Letter, any other documents and instruments executed by any Purchaser Related Party pursuant hereto or thereto or the transactions contemplated hereby or thereby (or the abandonment or termination thereof).
(e) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 8.2 [(Effect of Termination)] and Section 10.13 [(Specific Enforcement)] in the event this Agreement is terminated as contemplated in Section 8.3(a), Purchaser’s right to receive payment of the Company Termination Fee and Recovery Costs pursuant to Section 8.3(a) and Section 8.3(c), shall constitute the sole and exclusive remedy (whether at Law or in equity, whether in contract or in tort or otherwise) of Purchaser and the Purchaser Related Parties against the Company and the Company Related Parties for its fees any Loss, Liability or damage suffered as a result of, relating to or arising out of this Agreement, and expenses any other documents and instruments executed by any Company Related Party pursuant hereto or thereto or the transactions contemplated hereby or thereby, including the failure of the transactions contemplated by this Agreement to be consummated, and upon payment of the Company Termination Fee and any applicable Recovery Costs pursuant to this Agreement, none of the Company or the Company Related Parties shall have any further Liability relating to or arising out of this Agreement, any other documents and instruments executed by any Company Related Party pursuant hereto or thereto or the transactions contemplated hereby or thereby (or the abandonment or termination thereof).
(f) Notwithstanding anything to the contrary set forth in this Agreement, (i) in no event shall any Company Related Party be entitled to seek or obtain any recovery or judgment in excess of the Reverse Termination Fee (and any applicable Reimbursable Expenses and Recovery Costs) against any Purchaser Related Party or any of their respective assets, and in no event shall any Company Related Party be entitled to seek or obtain any other damages of any kind against any Purchaser Related Party for, or with respect to, this Agreement, the Guarantee, the Debt Commitment Letter, the Equity Commitment Letter, any other documents and instruments executed by any Purchaser Related Party pursuant hereto or thereto or the transactions contemplated hereby or thereby, including attorneys fees and expenses) incurred in connection with any breach by Purchaser, the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. breach, termination or failure, (or its successors or assignsii) in effect on the date the payments was payable hereunder. In no event shall an amount Purchaser be required to pay, or cause to be paid, the Reverse Termination Fee on more than one full Company occasion, or both the Reverse Termination Fee be payable by and other damages (but excluding Reimbursable Expenses and Recovery Costs), after Purchaser (or the Guarantors pursuant to the Guarantee) has paid the Reverse Termination Fee and (iii) in no event shall Seller, the Company pursuant or any other Company Related Party be entitled to receive both specific performance in accordance with the terms and conditions set forth in Section 10.13 [(Specific Enforcement)] and any money damages, including all or any portion of the Reverse Termination Fee and Recovery Costs. For the avoidance of doubt, neither the Company nor any of its Affiliates will have any rights or claims, and will not seek any rights or claims against any of the Debt Financing Sources in connection with this Section 7.3Agreement or the Debt Financing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Macquarie Infrastructure Corp)
Termination Fees. (a) In the event that that:
(i) (A) a bona fide Alternative Proposal, whether or not conditional, shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Alternative Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated: terminated by Parent pursuant to Section 7.1(b)(i), Section 7.1(b)(iii) (iso long as the Alternative Proposal was publicly disclosed prior to, and had not been withdrawn at, the time of the Company Meeting) or Section 7.1(d)(i), and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal (whether or not such Alternative Proposal was the same Alternative Proposal referred to in the foregoing clause (A)) within twelve (12) months of the date this Agreement is terminated (PROVIDED that for purposes of this Section 7.2(a)(i), the references to "20%" in the definition of Alternative Proposal shall be deemed to be references to "50%"); or
(ii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(i) on the basis of a willful breach or (ii) willful failure to perform by the Company pursuant to Section 7.1(c)(iCompany, 7.1(d)(ii) or 7.1(d)(iii), then, ; then in any such event under clause (i), (ii) or (iiiii) of this Section 7.3(a7.2(a), the Company shall pay to ParentParent a termination fee of $33 million in cash, by wire transferless any Parent Expenses, an if any, previously paid in accordance with Section 7.2(b) (such net amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i"TERMINATION FEE"), the Company shall pay the Company Termination Fee promptly, but it being understood that in no event shall the Company be required to pay the Termination Fee on more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%one occasion.
(b) In the event that this Agreement is terminated by Parent or under the Company pursuant provisions referred to in clause (B) of Section 7.1(b)(iii7.2(a)(i) and all other conditions set forth the circumstances referred to in Article VI clause (excluding A) of Section 6.1(d) and Section 6.2(d)7.2(a)(i) shall have occurred prior to such termination but the Termination Fee (or any portion thereof) has not been satisfied or waived paid and is not payable because the circumstances referred to in clause (other than those conditions that by their nature are to be satisfied at the Closing)C) of Section 7.2(a)(i) shall not have occurred, then the Company shall pay pay, to an account or accounts designated by Parent, by wire transfer, as promptly as possible (but in any event within two Business Days) following receipt of an amount which shall not exceed $600,000 invoice therefor all of Parent's and which shall represent reimbursement of Merger Sub's actual and reasonably documented out-of-pocket costs fees and expenses (including the costs legal fees and expenses of counselexpenses) actually incurred by Parent and Parent, Merger Sub and their Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement ("PARENT EXPENSES"), which amount shall not be greater than $5 million; PROVIDED, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 7.2(a)(i) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 7.2(b); and PROVIDED, FURTHER that the Transactions payment by the Company of Parent Expenses pursuant to this Section 7.2(b) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 7.2(a)(i).
(such amount, c) In the “Expense Reimbursement”). Such payment shall occur event that (i) concurrent with termination in (x) the event Company shall terminate this Agreement pursuant to Section 7.1(c)(i) on the basis of any a willful breach or willful failure to perform by Parent or Merger Sub and (y) at the time of such termination by there is no state of facts or circumstances that would reasonably be expected to cause the Companyconditions in Section 6.1, Section 6.3(a) or Section 6.3(b) not to be satisfied on the End Date assuming the Closing were to be scheduled on the End Date, or (ii) Parent or the Company shall terminate this Agreement pursuant to Section 7.1(b)(i) and the conditions set forth in Section 6.1, Section 6.3(a) and Section 6.3(b) shall have been satisfied either (A) at the time of such termination, or (B) if earlier, on the last day of the Marketing Period if the Merger shall not have been consummated as of the end of the Marketing Period, then Parent shall pay to the Company a termination fee of $33 million in cash (the "PARENT TERMINATION FEE"), it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(d) Any payment required to be made pursuant to clause (i) of Section 7.2(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by an Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to clause (2ii) business days after of Section 7.2(a) shall be made to Parent concurrently with, and as a condition to the Company’s receipt effectiveness of, the termination of Parent’s termination notice in the event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii7.1(c)(ii); any payment required to be made pursuant to clause (iii) of Section 7.2(a) shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(d)(i), (ii) or (iii), as applicable (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment), and such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent. Any payment required to be made pursuant to Section 7.2(b) shall be made to the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such promptly following termination date, then concurrently with the closing of such transaction, this Agreement by the Company or Parent, as the case may be (and in any event not later than two Business Days after delivery to Parent of notice of demand for payment), and such payment shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid be made by wire transfer of immediately available funds to an account to be designated by the Company.
(ce) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of Transactions. In the event that the Company shall fail to pay the Expense Reimbursement Termination Fee, or Parent shall fail to pay the Company Parent Termination Fee Fee, required pursuant to this Section 7.2 when due, such fee shall accrue interest for the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest period commencing on the amount of the payment date such fee became past due, at a rate equal to 300 basis points above the prime rate of Citibank N.A. interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank's prime lending rate. In addition, if either party shall fail to pay such fee when due, then such owing party shall also pay to the owed party all of the owed party's costs and expenses (or its successors or assignsincluding attorneys' fees) in effect connection with efforts to collect such fee.
(f) Each of the parties hereto acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement and that neither the Termination Fee nor the Parent Termination Fee is a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the date expectation of the payments was payable hereunderconsummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall an amount more than one full Company Notwithstanding anything to the contrary in this Agreement, the payment of the Parent Termination Fee be payable by Parent or the Company Guarantors pursuant to this Section 7.37.2 and the Limited Guarantees shall be the sole and exclusive remedy available to the Company, its Affiliates and its Subsidiaries against Parent, Merger Sub, the Guarantors and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents with respect to this Agreement and the transactions contemplated hereby, including for any loss suffered as a result of the failure of the Merger to be consummated, under any theory or for any reason, and upon payment of such amount in full by Parent, none of Parent, Merger Sub, the Guarantors or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided, however, that the Company shall also be entitled to payment of the amounts contemplated by Sections 5.10 and 7.2(d) of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Macdermid Inc)
Termination Fees. (a) In the event that this Agreement is terminated: terminated (ix) by Parent pursuant to Section 7.1(d)(i10.01(c)(i) (or by the Company pursuant to Section 10.01(b)(iv) and at the time of such termination Parent would have been permitted to terminate this Agreement pursuant to Section 10.01(c)(i)) or (iiy) by the Company pursuant to Section 7.1(c)(i10.01(d)(ii), then, in any such event under clause (i) or (ii) of this Section 7.3(a), then the Company shall pay to Parentpay, by wire transfertransfer of immediately available funds, an to Parent a fee in the amount equal to of $1,300,000 6,725,000 (the “Company Termination Fee”). If (x) Parent terminates at or prior to the termination of this Agreement in the case of a termination pursuant to Section 7.1(d)(ii10.01(d)(ii) due to an intentional breach by the Company and or as promptly as practicable (y) prior to and, in any event, within two Business Days following such termination, ) in the case of a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i10.01(c)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated (i) by Parent or the Company or Parent pursuant to Section 7.1(b)(iii10.01(b)(iv) or (ii) by Parent pursuant to Section 10.01(c)(ii) as a result of (A) a breach of or failure to perform any covenant or agreement contained in this Agreement or (B) a willful breach of any representation or warranty contained in this Agreement and, in any such case, (I) at any time after the date of this Agreement and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) prior to the taking of a vote to adopt this Agreement at the Company Stockholder Meeting or at any adjournment or postponement thereof, a Company Acquisition Proposal shall have been satisfied publicly announced or waived publicly made known and (other than those conditions that by their nature are to be satisfied at the Closing)II) within nine (9) months after such termination, the Company shall pay have entered into an agreement with respect to Parentany Company Acquisition Proposal, or any Company Acquisition Proposal shall have been consummated, then the Company shall pay, by wire transfertransfer of immediately available funds, to Parent the Company Termination Fee on the earlier to occur of the Company entering into an amount which agreement with respect to such Company Acquisition Proposal or the consummation of such Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.03(b), references to “25%” shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses be replaced by “50%.”
(including c) In the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with event that this Agreement and is terminated (x) by the Transactions Company or Parent pursuant to Section 10.01(b)(iv) or Section 10.01(c)(ii) as a result of a breach of or failure to perform any covenant or agreement contained in this Agreement and, (y) prior to such amounttermination, the “Expense Reimbursement”). Such payment Company shall occur (i) concurrent with termination in the event have materially breached any of any such termination its obligations under Section 8.03, which material breach, if curable by the Company, or shall not have been cured within five (ii5) no later than two (2) business days after Business Days following the Company’s receipt of Parent’s termination written notice of such material breach and (z) which material breach shall have resulted in the event of any such termination by Parent. In addition, if a Takeover Company Acquisition Proposal has been made and being publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination datemade, then concurrently with the closing of such transaction, the Company shall pay pay, by wire transfer of immediately available funds, to Parent the Company Termination Fee less as promptly as practicable (and, in any Expense Reimbursement previously paid by the Companyevent, within two Business Days following such termination).
(cd) Each of the Company, Parent and Merger Sub acknowledges The Parties acknowledge that the agreements contained in this Section 7.3 10.03 are an integral part of Transactions. In the event that transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement; accordingly, if the Company shall fail fails promptly to pay the Expense Reimbursement or any amount due pursuant to this Section 10.03, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company Termination Fee when duefor any amount due pursuant to this Section 10.03, the Company shall reimburse pay Parent and Merger Sub for all reasonable its costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counselattorneys’ fees and expenses) in connection with the collection under and enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for paymentsuch suit, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection together with such suit and shall pay interest on the amount due pursuant to this Section 10.03 from the date such payment was required to be made until the date of the payment at a rate equal to 300 basis points above the prime lending rate of Citibank N.A. (or its successors or assigns) as published in The Wall Street Journal in effect on the date the such payment was required to be made. All payments was payable hereunderunder this Section 10.03 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall an amount more than one full a Company Termination Fee be payable by more than once.
(e) Each Party agrees that notwithstanding anything in this Agreement to the contrary (other than with respect to claims for, or arising out of or in connection with fraud) (A) in the event that this Agreement is terminated under circumstances where the Company Termination Fee would be payable pursuant to this Section 7.310.03, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent, its Subsidiaries, stockholders, Affiliates, officers, directors, employees and Representatives against the Company or any of its Representatives or Affiliates for, (B) in no event will Parent seek to recover any other money damages or seek any other remedy (including any remedy for specific performance, except solely in compliance with Section 11.12 hereof) based on a claim in law or equity with respect to, (1) any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (2) the termination of this Agreement, (3) any liabilities or obligations arising under this Agreement or (4) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and (C) upon payment of any Company Termination Fee in accordance with this Section 10.03, no Party nor any Affiliates or Representatives of any Party shall have any further Liability or obligation to another Party relating to or arising out of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Termination Fees. (a) In the event that this Agreement is terminated: (i) by Parent pursuant to Section 7.1(d)(i) or (ii) terminated by the Company pursuant to Section 7.1(c)(i8.1(c)(ii), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant to Section 7.1(d)(ii) due to an intentional breach by the Company and (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent by wire transfer of same-day funds to the Company Purchaser a termination fee of $500,000 (the “Termination Fee”). The Purchaser’s acceptance of the Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, shall constitute conclusive evidence that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%has been validly terminated.
(b) In the event that the Purchaser shall terminate this Agreement pursuant to Section 8.1(d)(ii), and a definitive agreement is terminated entered into by Parent the Company with respect to the Takeover Proposal that gave rise to the Company Adverse Recommendation Change within six months after such termination of this Agreement, then the Company shall, on the date such Takeover Proposal is consummated, pay by wire transfer of same-day funds to the Purchaser an amount equal to the Termination Fee; provided, however, that for the purpose of this Section 8.3(b), all references in the definition of Takeover Proposal to “20%” shall instead be deemed to refer to “a majority.”
(c) In the event that (i)(A) the Purchaser validly terminates this Agreement pursuant to Section 8.1(d)(i) due to a willful breach by the Company of any covenant or agreement contained in this Agreement or pursuant to Section 8.1(b)(i) or (B) either the Purchaser or the Company terminates this Agreement pursuant to Section 7.1(b)(iii) and all other conditions set forth in Article VI (excluding Section 6.1(d) and Section 6.2(d)) shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing8.1(b)(ii), the Company shall pay to Parent, by wire transfer, an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination by the Company, or (ii) no later than two (2) business days after prior to the Company’s receipt time of Parent’s termination notice in the event of any such termination by Parent. In addition, if a bona fide Takeover Proposal has been publicly made or otherwise made known to the Company’s stockholders and publicly announced before this Agreement has been voted on not withdrawn or rejected by the shareholders Company’s Board of the CompanyDirectors prior to such termination, this Agreement and (iii) a definitive agreement is terminated entered into by Parent or the Company pursuant with respect to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any such Takeover Proposal within 12 six months after such termination date, then concurrently with the closing of such transactionthis Agreement, the Company shall shall, on the date such Takeover Proposal is consummated, pay Parent by wire transfer of same-day funds the Company Termination Fee less any Expense Reimbursement previously paid by to the CompanyPurchaser; provided, however, that for the purpose of this Section 8.3, all references in the definition of Takeover Proposal to “20%” shall instead be deemed to refer to “a majority.”
(cd) Each of the Company, Parent and Merger Sub The Company acknowledges that the agreements contained in this Section 7.3 8.3 are an integral part of the Transactions. In the event that the Company shall fail to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub the Purchaser for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub the Purchaser (including reasonable fees and expenses of counsel) in connection with the collection under and Purchaser’s enforcement of this Section 7.3. If the Company fails to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred in connection with such suit and shall pay interest on the amount of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.38.3.
Appears in 1 contract
Termination Fees. (a) In the event that this Agreement is terminated: If:
(i) by Parent pursuant to Section 7.1(d)(i) or (ii) by the Company pursuant to Section 7.1(c)(i), then, in any such event under clause (i) or (ii) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer, an amount equal to $1,300,000 (the “Company Termination Fee”). If (x) Parent terminates this Agreement pursuant a Competing Proposal has been made directly to Section 7.1(d)(ii) due to an intentional breach by the stockholders of the Company generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional and whether or not withdrawn) to make a Competing Proposal or communicated a Competing Proposal to the Company (or any officer or director thereof) (y) prior to any such termination, a Takeover Proposal has been made, then the Company shall pay Parent the Company Termination Fee at the closing of the transaction pursuant to the Takeover Proposal; provided, that such closing occurs within 12 months after the termination date. If Parent shall have terminated this Agreement pursuant to Section 7.1(d)(i), the Company shall pay the Company Termination Fee promptly, but in no event more than two (2) business days after the date of receipt of Parent’s termination notice. For purposes of this Section 7.3, the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.2, except that all references therein to 20% shall be deemed to be references to 50%.
(b) In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(iii8.1(b) (but only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 8.1(b)) or by Parent pursuant to Section 8.1(e) and all (z) within twelve (12) months after termination of this Agreement, the Company consummates any Competing Proposal or enters into any definitive agreement providing for any Competing Proposal (for purposes of this subsection, substituting 50% for the 10% thresholds set forth in the definition of Competing Proposal);
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(g); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(h); then in any such event (I) the Company shall pay to Parent a fee payable in cash equal to $118,000,000 (the “Company Termination Fee”), such payment to be made (x) in the case of Section 8.3(a)(i), at the earlier of (A) when the Company enters into a definitive agreement providing for a transaction in respect of such Competing Proposal or (B) when a transaction in respect of such Competing Proposal is consummated; (y) in the case of Section 8.3(a)(ii), no later than two (2) Business Days after the termination of this Agreement; or (z) in the case of Section 8.3(a)(iii), substantially concurrently with the termination of this Agreement; it being understood that in no event shall the Company be required to pay any fee referred to in this Section 8.3(a) on more than one occasion and (II) subject to the provisions of Section 8.2(ii), but notwithstanding any other provision to the contrary in this Agreement, in any circumstance in which the Company Termination Fee is payable in accordance with the terms of this Agreement, then, (x) Parent’s and Acquisition Sub’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Company or any of its Affiliates, stockholders, directors, officers, employees, agents or other representatives (the “Company Related Parties”) for any breach, loss or damage shall be to terminate this Agreement and receive payment of the Company Termination Fee, only to the extent provided for by Section 8.3(a), and (y) upon payment of such amount in accordance with Section 8.3(a), no Person shall have any rights or claims against any of the Company Related Parties under this Agreement, in respect of any oral representations made or alleged to be made in connection herewith, in respect of the transactions contemplated hereby, whether at law or equity, in contract, in tort or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or in respect of the transactions contemplated hereby or thereby.
(b) If this Agreement is terminated by either Parent or the Company:
(i) pursuant to Section 8.1(c), only in connection with any Order or action by a Governmental Authority with respect to the Antitrust Laws, or
(ii) pursuant to Section 8.1(b) and, in the case of this clause (ii), (A) at the time of such termination, the conditions set forth in Article VI Sections (excluding b) or (c)(i) of Annex I shall not have been satisfied (with regard to the condition set forth in Section 6.1(d(c)(i) of Annex I, as a result of an Order or Law under the Antitrust Laws), (B) the failure of one or more of the conditions set forth in Sections (b) and (c)(i) of Annex I to be satisfied is not primarily caused by any breach of Section 6.2(d6.2 of this Agreement by the Company, and (C) all of the conditions to the obligations of Parent and Acquisition Sub to consummate the Offer set forth in Annex I (other than the conditions set forth in Sections (a)(i) (other than if a Competing Proposal is pending and a Change of Recommendation shall have occurred in connection therewith), (a)(ii), (b) shall and (c)(i) of Annex I) have been satisfied or waived (other than and, in the case of those conditions that by their nature terms are to be satisfied at the Offer Closing, such conditions would be satisfied if the Offer Closing were then to occur), the Company then, in either such event, Parent shall pay to Parentthe Company or the Company’s designee, by wire transfer, transfer of immediately available funds to an amount which shall not exceed $600,000 and which shall represent reimbursement of documented out-of-pocket costs and expenses (including the costs and expenses of counsel) incurred by Parent and Merger Sub account or accounts designated in connection with this Agreement and the Transactions (such amount, the “Expense Reimbursement”). Such payment shall occur (i) concurrent with termination in the event of any such termination writing by the Company, or a cash amount equal to $$118,000,000 million (iithe “Parent Termination Fee”) no later than two (2) business days Business Days after the Company’s receipt termination of Parent’s termination notice this Agreement, it being understood that in the no event of any such termination by Parent. In addition, if a Takeover Proposal has been made and publicly announced before this Agreement has been voted on by the shareholders of the Company, this Agreement is terminated by Parent or shall the Company pursuant be entitled to Section 7.1(b)(iii), and the Company consummates a transaction pursuant to any Takeover Proposal within 12 months after such termination date, then concurrently with the closing of such transaction, the Company shall pay Parent the Company Termination Fee less any Expense Reimbursement previously paid by the Companyreferred to in this Section 8.3(b) on more than one occasion.
(c) Each subject to the provisions of Section 8.2(ii), but notwithstanding any other provision to the contrary in this Agreement, in any circumstance in which the Parent Termination Fee is payable, then (x) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Acquisition Subs or any of their Affiliates, equityholders, controlling persons, stockholders, directors, officers, employees, agents or other representatives (the “Parent Related Parties”) for any breach, loss or damage shall be to terminate this Agreement and receive payment of the CompanyParent Termination Fee, only to the extent provided for by Section 8.3(b), and (y) upon payment of such amount in accordance with Section 8.3(b) no Person shall have any rights or claims against any of the Parent and Merger Sub acknowledges that the agreements contained Related Parties under this Agreement, in this Section 7.3 are an integral part respect of Transactions. In the event that the Company shall fail any oral representations made or alleged to pay the Expense Reimbursement or the Company Termination Fee when due, the Company shall reimburse Parent and Merger Sub for all reasonable costs and expenses actually incurred or accrued by Parent or Merger Sub (including reasonable expenses of counsel) be made in connection with herewith, in respect of the collection under transactions contemplated hereby, whether at law or equity, in contract, in tort or otherwise, and enforcement none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Section 7.3. If the Company fails Agreement, in respect of any oral representations made or alleged to promptly make any payment required under this Section 7.3 and Parent commences a suit for payment, the Company shall indemnify Parent for its fees and expenses (including attorneys fees and expenses) incurred be made in connection with such suit and shall pay interest on the amount herewith or therewith, or in respect of the payment at a rate equal to 300 basis points above the prime rate of Citibank N.A. (transactions contemplated hereby or its successors or assigns) in effect on the date the payments was payable hereunder. In no event shall an amount more than one full Company Termination Fee be payable by the Company pursuant to this Section 7.3thereby.
Appears in 1 contract