Break-Up Fee Clause Samples

Break-Up Fee. In the event that (a) this Agreement terminates pursuant to Section 4.4(e) by Purchaser or pursuant to Section 4.4(h), and (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount (the “Break-Up Fee”) equal to the Cash Amount multiplied by the greater of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage (as defined below). The Break-Up Fee shall be paid in cash concurrently with the consummation (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement, and shall be paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (whic...

Break-Up Fee. In the event that (1) a Definitive Agreement is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination of the Definitive Agreement, as the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisions.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount of $131,303,723 (the “Break-up Fee”). (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Af...

Break-Up Fee. If Ontro fails to close a committed purchase of Shares for no less then $1.00 per share from a Purchaser who is ready, willing, and able to purchase Shares constituting directly or indirectly a minimum of 200,000 Shares for a minimum of $200,000 up to a maximum of 1,600,000 Shares for $1,600,000, and such purchase is on other terms that are acceptable to Ontro, which acceptance shall not be unreasonably withheld, then Ontro shall pay Aura the fees set forth in paragraph A. 2 above notwithstanding Ontro did not receive the funds or sell the Shares. The Performance Warrant issued to Aura in such case shall have all of the same registration rights and other rights set forth in Section C, below.

Break-Up Fee. (a) Notwithstanding the provisions above, other than with respect to the failure of: (1) the SEC to provide to the Purchaser its notice of no further comments to the Proxy Statement, (2) Nasdaq to complete the review required for the Merger and to approve the listing; or (3) the Purchaser to take the actions to comply with the obligations as set forth in Section 6.9 above, in the event that (i) the Closing does not take place by March 28, 2025 or a later date as extended by the Purchaser under Section 6.9 above, due to any material delay (including the failure of the Company to deliver the 2021 Financial Statements and/or 2022 or 2023 Financial Statements and/or Acquisition Target Company Audited Financials pursuant to Section 7.9 hereof) (provided such delay does not cause the Purchaser to liquidate under the SPAC Agreements) caused by or any reason directly attributable to the Company, any member of the Company Group or Shareholders’ Representative, or (ii) there is a valid and effective termination of this Agreement by the Purchaser pursuant to Sections 12.2(a) or Section 12.3(a), then the Company shall pay to the Purchaser a break-up fee in cash equal to Two Million U.S. Dollars ($2,000,000) ( the “Break-Up Fee”). The Break-Up Fee shall be paid by wire transfer of immediately available funds to an account designated in writing by the Purchaser within five (5) Business Days after the Purchaser delivers to the Company written notice of such termination in accordance with this Agreement. (b) Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement in circumstances where a Break-Up Fee is payable under this Section 12.5, the payment of such Break-Up Fee shall, in light of the difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which the Purchaser or its Affiliates would otherwise be entitled to assert against the Company, Shareholders’ Representative or their Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to the Purchaser or its Affiliates, provided, that the foregoing shall not limit (A) the Company, Shareholders’ Representative or their Affiliates from Liab...

Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party to complete this Agreement or any Other Reorganization Agreement means either such party's refusal to consummate the transactions contemplated by this Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such party's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations. 15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the ▇▇▇▇▇▇▇▇ Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the ▇▇▇▇▇▇▇▇ Group. 15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the ▇▇▇▇▇▇▇▇ Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. 15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contempl...

Break-Up Fee. (a) If this Agreement is terminated pursuant to Section 9.1(b), then, in lieu of all other Claims and remedies that might otherwise be available with respect thereto, including elsewhere hereunder and notwithstanding any other provision of this Agreement: (i) if Buyer has breached its obligation to pay the Purchase Price pursuant to Sections 2.2 and 2.5 or its obligations under Section 6.1(a), 6.1(c) or 6.28 and, in the case of Section 6.28, such breach has not been cured within one Business Day, then Buyer shall pay to Seller, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; (ii) if Seller has breached its obligations to sell the Company Interests to Buyer pursuant to Sections 2.1 and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, the terminating Party’s actual and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses incurred in connection with this Agreement, subject to a maximum of $4,000,000. (b) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of a breach by Buyer or Seller, as the case may be, the actual damages to be incurred by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount of such damages would be difficult if not impossible to measure accurately.

Break-Up Fee. In the event that Buyer ------------ ------------ shall announce the execution of this Agreement prior to the consummation of the Merger, then, in the event that the Merger is not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after the execution of this Agreement or (ii) the day on which all of the Company's and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, that the Company shall ------------------ immediately return the Break-up Fee to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the conditions to the Buyer's obligations set forth in Section 9.02 and the filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period shall be suspended and Buyer shall have no obligation to pay the Break-up Fee to the Company pending the Secretary of State's review and approval of the Merger, for so long as the parties are engaged in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the Company.

Break-Up Fee. For the avoidance of doubt, at the First Closing, the Sellers shall hold full right, title, and interest in and to the Cash Deposit, and the Todos Deposit Shares paid to Sellers or their designees and/or assignees pursuant to Section 1.2.1 and 1.2.2 hereunder on the First Closing Date free and clear of all rights, liens and encumbrances, without limitation. Additionally, as set forth in the Escrow Agreement, should Buyer fail to deliver the Second Cash Payment and/or the Convertible Note by the Second Closing Date as required by Section 1.2.4 and 1.2.5, the Escrow Agent shall return the Provista Shares to Sellers, and Sellers shall become the sole owners thereof. Buyer acknowledges and agrees that the Sellers, their representatives and advisors have devoted significant time and efforts and have incurred significant expenses in reviewing and analyzing the terms of this Agreements and the business, assets and operations of the Buyer in connection with the Transaction Documents and transactions contemplated hereby. Buyer further agrees and understands that in the event that the Buyer fails to deliver the Second Cash Payment and/or the Convertible Note to the Sellers at the Second Closing, the Cash Deposit and the Todos Deposit Shares shall be the property of the Sellers, and Sellers shall retain and hold full right, title, and interest in and be the sole owners of the Cash Deposit, the Todos Deposit Shares and 100% of the Provista Shares. In such an event, Buyer will have absolutely no rights, claims or interest of any type in connection with the Provista Shares, Cash Deposit or Todos Deposit Shares or this transaction, regardless of any alleged conduct by Seller or anyone else. Further, in such event Buyer irrevocably will be deemed to have canceled this Agreement and relinquished all rights in and to the Provista Shares, Cash Deposit and Todos Deposit Shares. In connection with the Provista Shares, Escrow Agent may release the Provista Shares to Sellers on the day after the Second Closing Date, unless Buyer has complied with 1.2.4 and 1.2.5 hereof. If this Agreement is not canceled and all payments due to Seller at the First Closing are made when required, all of the obligations, conditions and contingencies of Sellers hereunder will be deemed satisfied.