Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”) in immediately available funds in the event that this Agreement is terminated as follows: (i) if Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c).
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”a) in immediately available funds in the event that If this Agreement is terminated as follows: validly terminated:
(i) if (A) by Parent shall terminate this Agreement or the Company pursuant to Section 8.1(e); 7.1(b) (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(iiEnd Date), and (B) at any time a Parent Takeover Proposal shall have been publicly announced or publicly disclosed or made to the Parent Board of Directors after the date of this Agreement and before not withdrawn at least three (3) Business Days prior to termination, and (C) (1) the termination Company Stockholder Approval shall have been obtained, (2) the Parent Stockholder Approval shall not have been obtained and (3) all other conditions set forth in Section 6.1 and Section 6.2 were satisfied or capable of this Agreement being satisfied at the time of such termination;
(ii) (A) by Parent or the vote on this Agreement at the Company pursuant to Section 7.1(d)(ii) (Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iiiStockholder Approval Not Obtained) and Section 8.2(f)(iv(B) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to a Parent Takeover Proposal shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time publicly disclosed after the date of this Agreement and before not withdrawn at least three (3) Business Days prior to the termination date of this Agreement, an Acquisition the Parent Stockholder Meeting; or
(iii) (A) by Company pursuant to Section 7.1(e) (Parent Terminable Breach) and (B) a Parent Takeover Proposal with respect to Parent shall have been publicly announced or publicly disclosed or made to the Parent Board of Directors after the date of this Agreement and not publicly and bona fide withdrawn, and withdrawn at least three (C3) following the existence of such Acquisition Proposal and Business Days prior to the date of the breach giving rise to such right of termination; and in the case of each of the foregoing clauses (i) through (iii), at any time on or prior to the twelve (12)-month anniversary of the date of such termination, Parent shall have intentionally breached (and not cured after notice thereof) or any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this Agreement, and (D) Parent Subsidiaries enters into a definitive agreement providing for a Competing Transaction with respect to, or consummates, a transaction included within the definition of a Parent Takeover Proposal with any person (a “Parent Takeover Transaction”), Parent shall pay or cause to be paid to the Company (or the Company’s designee) the Parent which Termination Fee, by wire transfer (to an account designated by the Company) in immediately available funds, concurrently with the consummation of any such Parent Takeover Transaction (whether or a Competing Transaction with respect to Parent is otherwise consummated, in either case, not within such twelve months following the termination of this Agreement(12) month period); provided, howeverthat for the purposes of this Section 7.4(a) only, that any such termination fee payable pursuant all references in the definition of Parent Takeover Proposal to this clause “fifteen percent (iv) 15%)” shall be reduced by deemed to be references to “fifty percent (50%).”
(b) If (i) the amount of any payments made Company terminates this Agreement pursuant to Section 8.2(c7.1(h)(ii) (Parent Adverse Recommendation Change), (ii) Parent or the Company terminates this Agreement pursuant to Section 7.1(d)(i) (Company Stockholder Approval Not Obtained) following any time when the Company is entitled to terminate this Agreement pursuant to Section 7.1(h)(ii) (Parent Adverse Recommendation Change), or (iii) the Company terminates this Agreement pursuant to Section 7.1(j), Parent shall pay or cause to be paid to the Company (or the Company’s designee) the Parent Termination Fee, by wire transfer (to an account designated by the Company) in immediately available funds, within two (2) Business Days after such termination.
(c) If Parent terminates this Agreement pursuant to Section 7.1(g)(ii) (Parent Superior Proposal), Parent shall pay or cause to be paid to the Company (or the Company’s designee) the Parent Termination Fee, by wire transfer (to an account designated by the Company) in immediately available funds, prior to or substantially concurrently with such termination.
(d) If the Company terminates this Agreement pursuant to Section 7.1(i) (Parent Existing Debt Modification Failure or Insufficient Funds), Parent shall pay or cause to be paid to the Company (or the Company’s designee) the Parent Additional Termination Fee, by wire transfer (to an account designated by the Company) in immediately available funds, within three (3) Business Days after notice of such termination.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Getty Images Holdings, Inc.), Merger Agreement (Shutterstock, Inc.)
Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”a) in immediately available funds in the event that If this Agreement is terminated as follows: (ix) if Parent shall terminate this Agreement by the Company pursuant to Section 8.1(e); 7.3(a) (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(bParent Change in Recommendation) or (y) either party shall terminate this Agreement by Parent pursuant to Section 8.1(h)(ii7.4(c) (Parent Superior Proposal), and then Parent shall, within two (B2) at any time Business Days after such termination in the case of clause (x) or concurrently with such termination in the case of clause (y), pay to the Company the Parent Termination Fee in immediately available funds by wire transfer.
(b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or Section 7.2(c) (Parent Stockholder Approval) or by the Company pursuant to Section 7.3(b) (Parent Breach), (ii) prior to such termination but after the date of this Agreement Agreement, a bona fide Parent Acquisition Proposal has been publicly made or publicly disclosed to Parent or its stockholders and before not publicly withdrawn; and (iii) within 12 months after the termination date of this Agreement such termination, Parent consummates a Parent Acquisition Proposal or the vote on this Agreement at enters into an agreement contemplating a Parent Acquisition Proposal which is subsequently consummated, then Parent shall pay the Parent Stockholders’ MeetingTermination Fee to the Company concurrently with such consummation in immediately available funds by wire transfer; provided, respectively, an Acquisition Proposal (provided that, solely for purposes of this Section 8.2(f)(iii) and 7.6(b), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 8.2(f)(iv) below5.3(d), all percentages in except that the definition thereof references to “15%” shall be deemed to be equal references to “50%) with respect .” In no event shall Parent be required to pay the Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur Termination Fee on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)more than one occasion.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ACELYRIN, Inc.), Merger Agreement (Alumis Inc.)
Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”) in immediately available funds in the event that this Agreement is terminated as follows: (i) if If either Parent shall terminate or the Company terminates this Agreement pursuant to Section 8.1(e); (ii8.1(h) if or the Company shall terminate terminates this Agreement pursuant to Section 8.1(d8.1(b) due to a breach by Parent, within three (3) business days after such termination Parent shall pay or cause to be paid to the Company any and all out-of-pocket fees and expenses (including fees and expenses of financial advisors, outside legal counsel, accountants, experts, consultants and other Representatives) actually incurred by or on behalf of the Company in connection with the authorization, preparation, negotiation, execution or performance of this Agreement and the Transactions (the “Company Expenses”), in an aggregate amount not to exceed $45,000,000 in cash; provided that the payment by Parent of the Company Expenses pursuant to this Section 8.2(c)(i) shall not relieve Parent of any subsequent obligation to pay the Parent Termination Fee pursuant to Section 8.2(c) except to the extent indicated in such section, and (iiiii) if shall not relieve Parent from any liability for damages resulting from a Willful Breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or fraud. To the extent a Parent Termination Fee becomes payable, any payment previously made pursuant to this Section 8.2(c)(i) shall be credited against such obligation of Parent to pay the Parent Termination Fee.
(A)(xii) If (A) the Company shall terminate or Parent terminates this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b8.1(c) or (ySection 8.1(h) either party shall terminate or the Company terminates this Agreement pursuant to Section 8.1(h)(ii8.1(b) due to a breach by Parent (provided that such breach occurred following a Parent Competing Proposal received after the date hereof), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the hereof a Parent Stockholders’ Meeting, respectively, an Acquisition Competing Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced disclosed and not withdrawnpublicly, irrevocably withdrawn prior to the date of the Parent Special Meeting, and (CC)(1) any Parent Competing Proposal is consummated within twelve (12) months of such termination or (2) Parent enters into a definitive agreement providing for a Parent Competing Transaction with respect to Proposal within twelve (12) months of such termination and such Parent or a Competing Transaction with respect to Parent Proposal is otherwise consummated, within one (1) business day after the date any such Parent Competing Proposal is consummated, Parent shall pay or cause to be paid to the Company a fee of $255,000,000 in either case, within twelve months following cash (the termination “Parent Termination Fee”). Solely for purposes of this Agreement; providedSection 8.2(c)(ii), howeverthe term “Parent Competing Proposal” shall have the meaning assigned to such term in Section 9.5, except that any such termination fee payable pursuant all references to this clause “20%” therein shall be deemed to be references to “50%”.
(iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate If Parent terminates this Agreement pursuant to Section 8.1(b8.1(j), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawnconcurrently with, and (C) following the existence of such Acquisition Proposal and prior to any as a condition to, such termination, Parent shall have intentionally breached pay or cause to be paid to the Company the Parent Termination Fee.
(and not cured after notice thereofiv) any of its covenants or agreements set forth in If the Company terminates this Agreement in any material respectpursuant to Section 8.1(e), which breach within three (3) business days after such termination, Parent shall have materially contributed pay or cause to be paid to the failure of Company the Effective Time to occur on or before Parent Termination Fee.
(v) In the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent event any amount is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause the preceding clauses (i), (ii), (iii) or (iv) ), such amount shall be reduced paid by wire transfer of immediately available funds to an account designated in writing by the amount Company. For the avoidance of any payments made pursuant doubt, in no event shall Parent be obligated to Section 8.2(c)pay the Parent Termination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Towers Watson & Co.), Merger Agreement (Willis Group Holdings PLC)
Parent Termination Fee. (a) If this Agreement is terminated (x) by the Company pursuant to Section 7.3(a) (Parent shall Change in Recommendation) or (y) by Parent pursuant to Section 7.4(c) (Parent Superior Proposal), then Parent shall, within two (2) Business Days after such termination in the case of clause (x) or concurrently with such termination in the case of clause (y), pay to the Company a termination fee of equal to $40.0 million 120,000,000 (the “Parent Termination Fee”). In no event shall Parent be required to pay the Parent Termination Fee or the Company Expenses on more than one occasion.
(b) in immediately available funds in the event that If (i) this Agreement is terminated as follows: by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or Section 7.2(c) (Parent Stockholder Approval), (ii) prior to such termination referred to in clause (i) if Parent shall terminate of this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii)sentence, and (B) at any time but after the date of this Agreement Agreement, a bona fide Parent Acquisition Proposal shall have been publicly made to Parent or its stockholders and before not publicly withdrawn, and (iii) within nine (9) months after the date of a termination in either of the cases referred to in clause (i) of this Agreement Section 7.6(b), Parent consummates a Parent Acquisition Proposal or the vote on this Agreement at enters into an agreement contemplating a Parent Acquisition Proposal which is subsequently consummated, then Parent shall pay the Parent Stockholders’ MeetingTermination Fee, respectivelyless any amount of Company Expenses previously paid by Parent, an Acquisition Proposal (concurrently with such consummation; provided that, that solely for purposes of this Section 8.2(f)(iii7.6(b), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2(d), except that the references to “twenty (20%) and Section 8.2(f)(iv) below, all percentages in the definition thereof or more” shall be deemed to be equal references to 50“eighty percent (80%) with respect or more”. In no event shall Parent be required to pay the Parent shall have been publicly announced and not withdrawn, and Termination Fee or the Company Expenses on more than one occasion.
(Cc) Parent enters into a definitive agreement providing for a Competing Transaction with respect to If (i) this Agreement is terminated by Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made Company pursuant to Section 8.2(c); or 7.2(c) (ivParent Stockholder Approval) if and (Aii) either party shall terminate any of the shares of Parent Class B Common Stock subject to the Parent Proxies upon execution of this Agreement (“Subject Parent Shares”) are not voted at the Parent Stockholders Meeting to approve the Parent Share Issuance or otherwise not voted in accordance with the Parent Proxies, then Parent shall pay to the Company, by wire transfer of immediately available funds, the Parent Termination Fee as promptly as practicable (and, in any event, within two (2) Business Days following such termination). In no event shall Parent be required to pay the Parent Termination Fee or the Company Expenses on more than one occasion.
(d) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)7.2(c) (Parent Stockholder Approval) and the Subject Parent Shares were voted in favor of the Parent Share Issuance at the Parent Stockholders Meeting, then Parent shall pay all of the reasonable and (B) at any time after documented out-of-pocket expenses incurred by the date of Company in connection with this Agreement and before the termination of transactions contemplated by this Agreement, in an Acquisition Proposal with respect amount not to Parent shall have been publicly announced and not publicly and bona fide withdrawnexceed $5,000,000 (the “Company Expenses”) as promptly as practicable (and, and in any event, within two (C2) Business Days following the existence of such Acquisition Proposal and prior to any such termination, ). In no event shall Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants be required to pay the Parent Termination Fee or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur Company Expenses on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Twilio Inc), Merger Agreement (SendGrid, Inc.)
Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”) in immediately available funds in the event that Fee if this Agreement is terminated as follows: :
(i) if this Agreement is terminated (A) by the Company pursuant to Section 8.1(c)(ii) or (B) by Parent shall terminate or the Company pursuant to Section 8.1(b)(iv) at a time when the Company could have terminated this Agreement pursuant to Section 8.1(e); 8.1(c)(ii) unless at the time of such termination pursuant to Section 8.1(b)(iv) the Company shall have been in Willful Breach of this Agreement, then Parent shall pay the entire Parent Termination Fee by the fifth (5th) Business Day following such termination;
(ii) if the Company shall terminate this Agreement is terminated by Parent pursuant to Section 8.1(d8.1(d)(iii), then Parent shall pay to the Company the entire Parent Termination Fee upon such termination; or
(iii) if (A)(xA) the Company shall terminate this Agreement is terminated (1) pursuant to Section 8.1(g8.1(c)(i) as if the breach giving rise to such termination was a result of Parent’s breach of Willful Breach, (2) pursuant to Section 6.2(b8.1(b)(iv) or (y3) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii8.1(b)(i), and (B) (x) in the case of clause (1) above, a bona fide Parent Acquisition Proposal shall have been publicly announced or otherwise communicated to a member of senior management or the Board of Directors of Parent (or any Person shall have publicly announced or communicated a bona fide intention, whether or not conditional, to make a Parent Acquisition Proposal) at any time after the date of this Agreement and before prior to the termination date of this Agreement or the vote on this Agreement at breach giving rise to such termination, (y) in the case of clause (2) above, a bona fide Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and (or any Person shall have publicly announced or communicated a bona fide intention, whether or not withdrawnconditional, and (C) to make a Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (BAcquisition Proposal) at any time after the date of this Agreement and before prior to the termination taking of this Agreementthe vote of the stockholders of Parent at the Parent Stockholders’ Meeting or (z) in the case of clause (3) above, an a bona fide Parent Acquisition Proposal with respect to Parent shall have been publicly announced and not or otherwise communicated to a member of senior management or the Board of Directors of Parent (or any Person shall have publicly and announced or communicated a bona fide withdrawnintention, and (Cwhether or not conditional, to make a Parent Acquisition Proposal) following at any time after the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination date of this Agreement, and (DC) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement providing for a Competing Transaction with respect to consummate, or consummates, any Parent which or a Competing Transaction with respect Acquisition Transaction, then the Company shall pay to the Company the Parent is otherwise consummated, in either case, within twelve months Termination Fee by the second (2nd) Business Day following the termination earlier of this Agreement; provided, however, that any the date Parent enters into a definitive agreement to consummate or consummates such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)Parent Acquisition Transaction.
Appears in 2 contracts
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Parent Termination Fee. If:
(i) (A)(x) this Agreement is terminated by the Company pursuant to Section 7.3(a), and after the date hereof and prior to the breach giving rise to such right of termination, a Parent Acquisition Proposal has been publicly announced, publicly disclosed or otherwise communicated to the Parent Board or any Person shall have publicly announced or otherwise communicated to the Parent Board an intention (whether or not conditional) to make such a Parent Acquisition Proposal (and such Parent Acquisition Proposal has not been withdrawn prior to such breach), or (y) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(c)(ii), and prior to the Parent Stockholder Meeting, a Parent Acquisition Proposal has been publicly announced, publicly disclosed or otherwise publicly communicated to Parent’s stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make such a Parent Acquisition Proposal, and (B) within 12 months after the date of such termination, a transaction in respect of a Parent Acquisition Proposal is consummated or Parent enters into a definitive agreement in respect of a Parent Acquisition Proposal that is later consummated; provided that, for all purposes of this Section 7.5(c)(i), all percentages included in the definition of “Parent Acquisition Proposal” increased to 50%;
(ii) this Agreement is terminated by the Company pursuant to Section 7.3(c); or
(iii) this Agreement is terminated by Parent pursuant to Section 7.4(b); then, in any such event, Parent shall pay to the Company a termination fee of $40.0 million (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. Payment of the Parent Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by the Company (A) in immediately available funds at the time of consummation of any transaction contemplated by a Parent Acquisition Proposal, in the event that this Agreement is terminated as follows: (i) if case of a Parent shall terminate this Agreement Termination Fee payable pursuant to Section 8.1(e7.5(c)(i); , (iiB) if as promptly as reasonably practicable after termination (and, in any event, within two business days thereof), in the Company shall terminate this Agreement case of a Parent Termination Fee payable pursuant to Section 8.1(d7.5(c)(ii); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawn, and (C) at the time of termination, in the case of a Parent enters into a definitive agreement providing for a Competing Transaction Termination Fee payable pursuant to Section 7.5(c)(iii). Other than with respect to Parent fraud or a Competing Transaction with respect to Parent is otherwise consummatedWillful Breach, in either casethe event that the Parent Termination Fee becomes payable, within twelve months following then payment to the termination Company of the Parent Termination Fee shall be the Company’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against Parent, its Subsidiaries and each of their respective former, current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing (collectively, the “Parent Parties”) in respect of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b)agreement executed in connection herewith, and (B) at the transactions contemplated hereby and thereby, including for any time after the date loss or damage suffered as a result of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time Mergers to occur on be consummated or before the termination for a breach or failure to perform hereunder (whether intentionally, unintentionally or otherwise) or otherwise, and upon payment of such Parent Termination Fee, no Parent Party shall have any further liability or obligation relating to or arising out of this Agreement, Agreement or the transactions contemplated hereby and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)thereby.
Appears in 1 contract
Parent Termination Fee. If:
(a) (A)(x) this Agreement is terminated by the Company pursuant to Section 7.3(a), and after the date hereof and prior to the breach giving rise to such right of termination, a Parent Acquisition Proposal has been publicly announced, publicly disclosed or otherwise communicated to the Parent Board or any Person shall have publicly announced or otherwise communicated to the Parent Board an intention (whether or not conditional) to make such a Parent Acquisition Proposal (and such Parent Acquisition Proposal has not been withdrawn prior to such breach), or (y) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(c)(ii), and prior to the Parent Stockholder Meeting, a Parent Acquisition Proposal has been publicly announced, publicly disclosed or otherwise publicly communicated to Parent’s stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make such a Parent Acquisition Proposal, and (B) within 12 months after the date of such termination, a transaction in respect of a Parent Acquisition Proposal is consummated or Parent enters into a definitive agreement in respect of a Parent Acquisition Proposal that is later consummated; provided that, for all purposes of this Section 7.5(c)(i), all percentages included in the definition of “Parent Acquisition Proposal” increased to 50%;
(b) this Agreement is terminated by the Company pursuant to Section 7.3(c); or
(c) this Agreement is terminated by Parent pursuant to Section 7.4(b); then, in any such event, Parent shall pay to the Company a termination fee of $40.0 million (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. Payment of the Parent Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by the Company (A) in immediately available funds at the time of consummation of any transaction contemplated by a Parent Acquisition Proposal, in the event that this Agreement is terminated as follows: (i) if case of a Parent shall terminate this Agreement Termination Fee payable pursuant to Section 8.1(e7.5(c)(i); , (iiB) if as promptly as reasonably practicable after termination (and, in any event, within two business days thereof), in the Company shall terminate this Agreement case of a Parent Termination Fee payable pursuant to Section 8.1(d7.5(c)(ii); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawn, and (C) at the time of termination, in the case of a Parent enters into a definitive agreement providing for a Competing Transaction Termination Fee payable pursuant to Section 7.5(c)(iii). Other than with respect to Parent fraud or a Competing Transaction with respect to Parent is otherwise consummatedWillful Breach, in either casethe event that the Parent Termination Fee becomes payable, within twelve months following then payment to the termination Company of the Parent Termination Fee shall be the Company’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against Parent, its Subsidiaries and each of their respective former, current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing (collectively, the “Parent Parties”) in respect of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b)agreement executed in connection herewith, and (B) at the transactions contemplated hereby and thereby, including for any time after the date loss or damage suffered as a result of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time Mergers to occur on be consummated or before the termination for a breach or failure to perform hereunder (whether intentionally, unintentionally or otherwise) or otherwise, and upon payment of such Parent Termination Fee, no Parent Party shall have any further liability or obligation relating to or arising out of this Agreement, Agreement or the transactions contemplated hereby and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)thereby.
Appears in 1 contract
Parent Termination Fee. (a) In the event this Agreement is terminated (i) by WPZ pursuant to Section 7.3(a) (Parent Adverse Recommendation Change) or (ii) by WPZ or Parent pursuant to Section 7.2(c) (Parent Stockholder Approval), and in the case of each of clause (i) and (ii) where prior to such termination a Parent Adverse Recommendation Change has occurred, then Parent shall pay to WPZ, after the Company date of termination, the Parent Termination Fee, which payment, subject to Section 7.6(d), shall be paid in four equal quarterly installments, with each such installment to be paid within two (2) Business Days following the first four dates that a regular quarterly distribution is paid to holders of WPZ Units following termination fee of this Agreement.
(b) In the event that (i) a Parent Acquisition Proposal has been publicly proposed or publicly disclosed by any Person or such a Parent Acquisition Proposal has otherwise become publicly known to Parent’s stockholders generally and in any event such proposal is not subsequently irrevocably withdrawn at least seven days prior to the earlier of the Parent Stockholder Meeting or the termination of this Agreement, (ii) thereafter this Agreement is terminated by either Parent or WPZ pursuant to Section 7.2(a) (Termination Date) or Section 7.2(c) (Parent Stockholder Approval) and (iii) within 12 months after the termination of this Agreement, Parent or any of its Subsidiaries enters into any definitive agreement with respect to, or consummates, such Parent Acquisition Proposal, then, subject to Section 7.6(d), Parent shall pay to WPZ, upon the first to occur of such entering into a definitive agreement or consummation of such Parent Acquisition Proposal, the Parent Termination Fee; provided that for purposes of this Section 7.6(b), “25%” shall be deemed to be references to “50%” in the definition of Parent Acquisition Proposal.
(c) If this Agreement is validly terminated by WPZ pursuant to the provisions of Section 7.3(b) (Parent Uncured Breach), then Parent shall pay to WPZ by wire transfer of immediately available funds to an account designated by WPZ an amount equal to the WPZ Expenses, and such payment shall be made within five (5) Business Days after such termination.
(d) The “Parent Termination Fee” shall be an amount of cash equal to the lesser of (i) $40.0 410 million (the “Parent Termination FeeBase Amount”) and (ii) the maximum aggregate amount, if any, that can be paid to WPZ without causing WPZ to fail the gross income requirement in immediately available funds Section 7704(c)(2) of the Code for any WPZ taxable year within the Measurement Period (as defined below), treating the Parent Termination Fee and the WPZ Expenses as non-qualifying income and after taking into consideration all other sources of non-qualifying income (such maximum amount, the “Non-Qualifying Income Cushion”), for the applicable year, as determined by WPZ’s independent accountants. Notwithstanding the foregoing, in the event WPZ receives an opinion from outside counsel or a ruling from the IRS (“Tax Guidance”) providing that this Agreement WPZ’s receipt of the Parent Base Amount would either constitute qualifying income (as defined in Section 7704(d) of the Code) or be excluded from gross income for purposes of Section 7704 of the Code, the Parent Termination Fee shall be an amount equal to the Parent Base Amount and Parent shall, upon receiving notice that WPZ has received the Tax Guidance, pay to WPZ any unpaid portion of the Parent Base Amount within five (5) Business Days. In the event that WPZ is terminated as followsnot able to initially receive a Parent Termination Fee equal to the full Parent Base Amount due to the above limitations, Parent shall place an amount in cash equal to the unpaid portion of the Parent Base Amount in escrow by wire transfer within three (3) Business Days of such determination and shall not release any portion thereof to WPZ unless and until WPZ receives either: (ix) if a letter from an independent nationally recognized accounting firm indicating the amount of the Non-Qualifying Income Cushion determined for any subsequent WPZ taxable year (in which case Parent shall terminate this Agreement pursuant pay to Section 8.1(e); WPZ the lesser of the unpaid portion of the Parent Base Amount or the amount of the Non-Qualifying Income Cushion determined for such subsequent WPZ taxable year within five (ii5) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(bBusiness Days after Parent has been notified thereof) or (y) Tax Guidance providing that WPZ’s receipt of such portion would either party constitute qualifying income (as defined in Section 7704(d) of the Code) or be excluded from gross income for purposes of Section 7704 of the Code (in which case Parent shall pay to WPZ any unpaid portion of the Parent Base Amount within five (5) Business Days after Parent has been notified thereof). Parent agrees to cooperate with WPZ to maximize the portion of the Parent Base Amount that may be paid as the Parent Termination Fee without causing WPZ to fail to meet the requirements of Section 7704(c)(2) of the Code, including using its commercially reasonable efforts to assist WPZ in obtaining a favorable ruling or legal opinion from outside counsel, in each case, as described in this Section 7.6(d). The obligation of Parent to pay any unpaid portion of the Parent Base Amount shall terminate this Agreement pursuant to Section 8.1(h)(ii), and at the close of the period ending December 31 following the date that is five (B5) at any time after years from the date of this Agreement (the “Measurement Period”). Any amounts remaining in escrow after the obligation of Parent to pay the Parent Base Amount terminates shall be retained by Parent.
(e) The parties acknowledge that the provisions of this Section 7.6 are an integral part of the transactions contemplated by this Agreement and before that, without these agreements, none of the parties would enter into this Agreement. The parties agree that upon termination of this Agreement or the vote on this Agreement at under circumstances in which the Parent Stockholders’ MeetingTermination Fee is payable, respectively, an Acquisition Proposal (provided that, for purposes receipt of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof Parent Termination Fee shall be deemed to be equal to 50%) with respect to WPZ’s sole and exclusive remedy under this Agreement, and upon such termination, Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with no further liability to WPZ or the WPZ General Partner of any kind in respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; providedAgreement and the transactions contemplated by this Agreement other than its obligation to pay the Parent Termination Fee and WPZ Expenses and except as expressly set forth in Section 7.5. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion (provided that for the avoidance of doubt, however, the Parent Termination Fee shall be paid in multiple installments in accordance with Section 7.6(a)). In the event that any such termination fee payable Parent pays the WPZ Expenses pursuant to this clause (iii) Section 7.6, then any Parent Termination Fee required to be paid by Parent under this Section 7.6 shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)WPZ Expenses previously paid.
Appears in 1 contract
Parent Termination Fee. (i) If Parent terminates this Agreement pursuant to Section 8.1(j), then Parent shall pay or cause to be paid to the Company concurrently with, and as a termination fee of condition to such termination, an amount in cash equal to $40.0 million 290,000,000 (the “Parent Termination Fee”).
(ii) in immediately available funds in If the event that this Agreement is terminated as follows: (i) if Parent shall terminate Company terminates this Agreement pursuant to Section 8.1(e8.1(f); , then Parent shall pay or cause to be paid to the Company, within three business days after such termination, the Parent Termination Fee.
(iiiii) if If (A) Parent or the Company shall terminate terminates this Agreement pursuant to Section 8.1(d); ) (iii) if (A)(x) solely in the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(iievent that the Parent Stockholder Approval has not been obtained), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the a Parent Stockholders’ Meeting, respectively, an Acquisition Competing Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawndisclosed prior to the date of such termination, and (CC)(1) any Parent Qualifying Transaction is consummated within 12 months after such termination or (2) Parent enters into a definitive agreement providing for a Competing Parent Qualifying Transaction with respect to within 12 months after such termination and such Parent or a Competing Qualifying Transaction with respect to Parent is otherwise consummated, in either case, then within twelve months following one business day after the termination of this Agreement; provided, however, that date any such termination fee payable pursuant Parent Qualifying Transaction is consummated, Parent shall pay or cause to this clause (iii) shall be reduced by paid to the amount of any payments made pursuant to Section 8.2(c); or Company the Parent Termination Fee.
(iv) if If (A) either party shall terminate the Company or Parent terminates this Agreement pursuant to Section 8.1(b8.1(h), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition a Parent Competing Proposal with respect to Parent shall have been publicly announced disclosed and not publicly and bona fide withdrawnpublicly, irrevocably withdrawn prior to the date of the Parent Special Meeting, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereofC)(1) any of its covenants Parent Qualifying Transaction is consummated within 12 months after such termination or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this Agreement, and (D2) Parent enters into a definitive agreement providing for a Competing Parent Qualifying Transaction with respect to within 12 months after such termination and such Parent which or a Competing Qualifying Transaction with respect to Parent is otherwise consummated, in either case, then within twelve months following one business day after the termination of this Agreement; provided, however, that date any such termination fee Parent Qualifying Transaction is consummated, Parent shall pay or cause to be paid to the Company the Parent Termination Fee.
(v) In the event any amount is payable pursuant to this clause the preceding clauses (i), (ii), (iii) or (iv) ), such amount shall be reduced paid by wire transfer of immediately available funds to an account designated in writing by the amount of any payments made pursuant Company. In no event shall Parent be obligated to Section 8.2(c)pay the Parent Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Kla Tencor Corp)
Parent Termination Fee. (a) If this Agreement is terminated by the Company pursuant to Section 7.3(a) (Parent shall Change in Recommendation) then Parent shall, within two (2) Business Days after such termination pay to the Company a termination fee of equal to $40.0 million 100,000,000 plus the Company Expenses (the “Parent Termination Fee”) in immediately available funds in less any amount of Company Expenses previously paid by Parent. In no event shall Parent be required to pay the event that Parent Termination Fee or the Company Expenses on more than one occasion.
(b) If (i) this Agreement is terminated as follows: by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or Section 7.2(c) (Parent Stockholder Approval), (ii) prior to such termination referred to in clause (i) if Parent shall terminate of this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii)sentence, and (B) at any time but after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Agreement, a Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (other than a Permitted Parent Acquisition Proposal) shall have been publicly made to Parent or any of its Subsidiaries or shall have been made directly to Parent’s stockholders or otherwise communicated to the Parent Board and Parent's stockholders (whether or not conditional) (or any Person shall have publicly announced a bona fide written intention, whether or not conditional, to make a Parent Acquisition Proposal ( other than a Permitted Parent Acquisition Proposal)) and, in each case, not withdrawn, and (iii) within twelve (12) months after the date of a termination in either of the cases referred to in clause (i) of this Section 7.6(b), Parent consummates a Parent Acquisition Proposal or enters into an agreement contemplating a Parent Acquisition Proposal which is subsequently consummated, then Parent shall pay the Parent Termination Fee, less any amount of Company Expenses previously paid by Parent, concurrently with such consummation; provided that, that solely for purposes of this Section 8.2(f)(iii7.6(b), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2(d), except that the references to “twenty (20%) and Section 8.2(f)(iv) below, all percentages in the definition thereof or more” shall be deemed to be equal references to “fifty percent (50%) with respect or more”. In no event shall Parent be required to pay the Parent shall have been publicly announced and not withdrawn, and Termination Fee or the Company Expenses on more than one occasion.
(Cc) Parent enters into a definitive agreement providing for a Competing Transaction with respect to If this Agreement is terminated by Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made Company pursuant to Section 8.2(c); or 7.2(c) (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(bParent Stockholder Approval), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to then Parent shall have been publicly announced and not publicly and bona fide withdrawnpay to the Company, and by wire transfer of immediately available funds, a fee equal to $10,000,000 (Cthe “Company Expenses”) as promptly as practicable (and, in any event, within two (2) Business Days following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c).
Appears in 1 contract
Sources: Merger Agreement (Science Applications International Corp)
Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “"Parent Termination Fee”") of $1,750,000 in immediately available funds in the event that this Agreement is terminated solely as follows: (i) if Parent shall terminate this Agreement pursuant to Section 8.1(e); , (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s 's breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b)8.1(h)(ii) and, and (B) at any time after the date of this Agreement and before the termination of vote on this AgreementAgreement at the Parent Stockholders' Meeting, an Acquisition Proposal with respect to Parent shall have been publicly announced and not bona fide withdrawn and (B) a Competing Transaction with respect to Parent is consummated or Parent enters into a definitive agreement with respect to a Competing Transaction, in either case, within twelve months following the termination of this Agreement; or (v) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b) and, at any time after the date of this Agreement and before the Termination Date, an Acquisition Proposal with respect to Parent shall have been publicly announced and not bona fide withdrawn, and (CB) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this AgreementTermination Date, and (DC) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummatedconsummated or Parent enters into a definitive agreement with respect to a Competing Transaction, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c).
Appears in 1 contract
Sources: Merger Agreement (Variagenics Inc)
Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”a) in immediately available funds in the event that If this Agreement is terminated as follows: (ix) if Parent shall terminate this Agreement by the Company pursuant to Section 8.1(e); 7.3(a) (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(bParent Change in Recommendation) or (y) either party shall terminate this Agreement by Parent pursuant to Section 8.1(h)(ii7.4(c) (Parent Superior Proposal), and then Parent shall, within two Business Days after such termination in the case of clause (Bx) at any time or concurrently with such termination in the case of clause (y), pay the Company the Parent Termination Fee.
(b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or Section 7.2(c) (Parent Stockholder Approval), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement Agreement, a bona fide Parent Acquisition Proposal has been publicly made or publicly disclosed to Parent or its stockholders and before not publicly withdrawn, and (iii) within 12 months after the date of a termination in either of the cases referred to in clause (i) of this Agreement Section 7.6(b), Parent consummates a Parent Acquisition Proposal or the vote on this Agreement at enters into an agreement contemplating a Parent Acquisition Proposal which is subsequently consummated, then Parent shall pay the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (Termination Fee concurrently with such consummation; provided that, that solely for purposes of this Section 8.2(f)(iii7.6(b), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(d), except that the references to “twenty (20%) and Section 8.2(f)(iv) below, all percentages in the definition thereof or more” shall be deemed to be equal references to “fifty percent (50%) with respect or more”. In no event shall Parent be required to pay the Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur Termination Fee on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Metacrine, Inc.)
Parent Termination Fee. (a) In the event this Agreement is terminated (i) by WPZ pursuant to Section 7.3(a) (Parent Adverse Recommendation Change) or (ii) by WPZ or Parent pursuant to Section 7.2(c) (Parent Stockholder Approval), and in the case of each of clause (i) and (ii) where prior to such termination a Parent Adverse Recommendation Change has occurred in connection with a Parent Designated Proposal, then Parent shall pay to WPZ, within two (2) Business Days after the Company a termination fee date of termination, $40.0 million 410,000,000.00 (the “Parent Termination Fee”).
(b) in immediately available funds in In lieu of any direct payment of the event that this Agreement is terminated as follows: Parent Termination Fee to WPZ by Parent, the WPZ General Partner shall, within two (i2) if Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii), and (B) at any time business days after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time after the date of this Agreement and before the termination of this Agreement, execute an Acquisition Proposal with respect amendment to Parent shall have been publicly announced and not publicly and bona fide withdrawnthe WPZ Partnership Agreement in the form attached to Schedule 7.6 hereto (the “IDR Waiver”), and Parent hereby does consent to such action.
(Cc) following The parties acknowledge that the existence provisions of such Acquisition Proposal this Section 7.6 are an integral part of the transactions contemplated by this Agreement and prior that, without these agreements, none of the parties would enter into this Agreement. The parties agree that in the event that Parent pays the Parent Termination Fee to any such terminationWPZ through WPZ General Partner’s execution of the IDR Waiver, Parent shall have intentionally breached (and not cured after notice thereof) no further liability to WPZ or WPZ General Partner of any kind in respect of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to and the failure of the Effective Time to occur on or before the termination of transactions contemplated by this Agreement, and (D) that in no event shall Parent enters into a definitive agreement providing for a Competing Transaction with respect be required to pay the Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c)Termination Fee on more than one occasion.
Appears in 1 contract
Parent Termination Fee. (A) If this Agreement is terminated by the Company pursuant to Section 10.01(d)(ii) or by Parent pursuant to Section 10.01(c)(i) or 10.01(c)(iii), then the Company shall pay to the Company Parent a termination fee of in immediately available funds in an amount corresponding to such termination as set forth below: (x) $40.0 million 3,828,088.57 for such termination pursuant to Section 10.01(c)(i) (the “Section 6.04 Breach Fee”); or (y) $3,588,833.03 for such termination pursuant to Section 10.01(c)(iii) or 10.01(d)(ii) (the “General Fee” and, together with the Section 6.04 Breach Fee, the “Parent Termination Fee”).
(B) in immediately available funds in the event that If this Agreement is terminated as follows: (i) if by the Company or by Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g10.01(b)(i) as a result of Parent’s breach of the failure to satisfy the Minimum Condition or by Parent pursuant to Section 6.2(b10.01(c)(ii), then the Company shall, within two Business Days after such termination, pay to Parent in immediately available funds the Expense Reimbursement; provided that if, (x) prior to such termination an Acquisition Proposal by a third party has been publicly disclosed or announced (or has otherwise become publicly known) and (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii), and within nine (B9) at any time months after the date of this Agreement and before the such termination of this Agreement the Company shall enter into a definitive agreement or consummate a transaction relating to any Acquisition Proposal, which need not have been the vote on this Agreement at the Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent that shall have been publicly disclosed or announced and not withdrawnor publicly made known prior to termination hereof, and (C) the Company shall pay to Parent the General Fee, less the Expense Reimbursement previously paid, immediately upon the date upon which the Company enters into a any definitive agreement providing for a Competing Transaction with respect relating to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn(or, and (C) following the existence if there is no such agreement, upon consummation of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any Proposal). For purposes of its covenants or agreements set forth the term “Acquisition Proposal” as used in this Agreement subclause (B), references to “20% or more” in any material respect, which breach shall have materially contributed to the failure definition of the Effective Time to occur on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) term shall be reduced by the amount of any payments made pursuant to Section 8.2(c)“more than 50%”.
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Parent Termination Fee. (a) If this Agreement is terminated by the Company pursuant to Section 7.3(a) (Parent shall Change in Recommendation) then Parent shall, within two (2) Business Days after such termination pay to the Company a termination fee of equal to $40.0 million 100,000,000 plus the Company Expenses (the “Parent Termination Fee”) in immediately available funds in less any amount of Company Expenses previously paid by Parent. In no event shall Parent be required to pay the event that Parent Termination Fee or the Company Expenses on more than one occasion.
(b) If (i) this Agreement is terminated as follows: by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or Section 7.2(c) (Parent Stockholder Approval), (ii) prior to such termination referred to in clause (i) if Parent shall terminate of this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii)sentence, and (B) at any time but after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the Agreement, a Parent Stockholders’ Meeting, respectively, an Acquisition Proposal (other than a Permitted Parent Acquisition Proposal) shall have been publicly made to Parent or any of its Subsidiaries or shall have been made directly to Parent’s stockholders or otherwise communicated to the Parent Board and Parent’s stockholders (whether or not conditional) (or any Person shall have publicly announced a bona fide written intention, whether or not conditional, to make a Parent Acquisition Proposal (other than a Permitted Parent Acquisition Proposal)) and, in each case, not withdrawn, and (iii) within twelve (12) months after the date of a termination in either of the cases referred to in clause (i) of this Section 7.6(b), Parent consummates a Parent Acquisition Proposal or enters into an agreement contemplating a Parent Acquisition Proposal which is subsequently consummated, then Parent shall pay the Parent Termination Fee, less any amount of Company Expenses previously paid by Parent, concurrently with such consummation; provided that, that solely for purposes of this Section 8.2(f)(iii7.6(b), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2(d), except that the references to “twenty (20%) and Section 8.2(f)(iv) below, all percentages in the definition thereof or more” shall be deemed to be equal references to “fifty percent (50%) with respect or more”. In no event shall Parent be required to pay the Parent shall have been publicly announced and not withdrawn, and Termination Fee or the Company Expenses on more than one occasion.
(Cc) Parent enters into a definitive agreement providing for a Competing Transaction with respect to If this Agreement is terminated by Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made Company pursuant to Section 8.2(c); or 7.2(c) (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(bParent Stockholder Approval), and (B) at any time after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to then Parent shall have been publicly announced and not publicly and bona fide withdrawnpay to the Company, and by wire transfer of immediately available funds, a fee equal to $10,000,000 (Cthe “Company Expenses”) as promptly as practicable (and, in any event, within two (2) Business Days following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed to the failure of the Effective Time to occur on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced by the amount of any payments made pursuant to Section 8.2(c).
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Parent Termination Fee. Parent shall pay to the Company a termination fee of $40.0 million (the “Parent Termination Fee”) in immediately available funds in the event that this Agreement is terminated as follows: (i) if If (A) the Company or Parent shall terminate terminates this Agreement pursuant to Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b8.1(c) or (y) either party shall terminate this Agreement pursuant to Section 8.1(h)(ii8.1(h), and (B) at any time after the date of this Agreement and before the termination of this Agreement or the vote on this Agreement at the a Parent Stockholders’ Meeting, respectively, an Acquisition Competing Proposal (provided that, for purposes of this Section 8.2(f)(iii) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced disclosed and not withdrawnpublicly, irrevocably withdrawn prior to the date of the Parent Special Meeting, and (CC)(1) any Parent Competing Proposal is consummated within twelve (12) months of such termination or (2) Parent enters into a definitive agreement providing for a Parent Competing Transaction with respect to Proposal within twelve (12) months of such termination and such Parent or a Competing Transaction with respect to Parent Proposal is otherwise consummated, within one (1) business day after the date any such Parent Competing Proposal is consummated Parent shall pay a fee of $1,175,000,000 in either case, within twelve months following cash (the termination “Parent Termination Fee”). Solely for purposes of this Agreement; providedSection 8.2(c)(i), howeverthe term “Parent Competing Proposal” shall have the meaning assigned to such term in Section 9.5, except that any such termination fee payable pursuant all references to this clause (iii) “20%” therein shall be reduced by deemed to be references to “50%”.
(ii) If the amount of any payments made pursuant to Section 8.2(c); or (iv) if (A) either party shall terminate Company terminates this Agreement pursuant to Section 8.1(b8.1(e), and within three (B3) at any time business days after the date of this Agreement and before the termination of this Agreement, an Acquisition Proposal with respect to Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached pay or cause to be paid to the Company the Parent Termination Fee.
(and not cured after notice thereofiii) any of its covenants If either Parent or agreements set forth in the Company terminates this Agreement in any material respectpursuant to Section 8.1(h), which breach within three (3) business days after such termination Parent shall have materially contributed pay or cause to be paid to the failure Company $335,000,000. To the extent a Parent Termination Fee becomes payable, any payment previously made pursuant to this Section 8.2(c)(iii) shall be credited against such obligation of Parent to pay the Effective Time to occur on or before Parent Termination Fee.
(iv) In the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent event any amount is otherwise consummated, in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause the preceding clauses (ivi), (ii) or (iii), such amount shall be reduced paid by wire transfer of immediately available funds to an account designated in writing by the amount Company. For the avoidance of any payments made pursuant doubt, in no event shall Parent be obligated to Section 8.2(c)pay the Parent Termination Fee on more than one occasion.
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Parent Termination Fee. (a) In the event that this Agreement is terminated by Parent, pursuant to Section 8.2(a), then Parent shall shall, concurrently with and as a condition to the effectiveness of the termination, pay to the Company a termination fee of $40.0 million 10,000,000 (the “Parent Termination Fee”) by wire transfer of same day funds to an account specified in immediately available funds in writing by the Company.
(b) In the event that (i) a Takeover Proposal shall have been made (and not subsequently withdrawn) to Parent or any of its Subsidiaries or any Person shall have publicly announced (and not subsequently withdrawn) a bona fide intention (whether or not conditional) to make a Takeover Proposal with respect to Parent or any of its Subsidiaries, (ii) thereafter this Agreement is terminated as follows: (i) if Parent shall terminate this Agreement pursuant to (x) Section 8.1(e); (ii) if the Company shall terminate this Agreement pursuant to Section 8.1(d); (iii) if (A)(x) the Company shall terminate this Agreement pursuant to Section 8.1(g) as a result of Parent’s breach of Section 6.2(b8.1(c) or (y) Section 8.2(b) if, at such time, the only condition or conditions set forth in Article 7 that have not been satisfied (other than those conditions by their nature are to be satisfied at Closing) are either party shall terminate this Agreement pursuant or both of the failure to Section 8.1(h)(ii), have received the Parent Stockholder Approval and the failure to close the Parent Equity Offering and (Biii) at within nine (9) months after any time such termination referred to in clause (ii) above, Parent enters into a definitive contract with respect to, or consummates the transactions contemplated by, any Takeover Proposal (regardless of whether such Takeover Proposal is (w) made before or after the date of this Agreement and before the termination of this Agreement or (z) is the vote on this Agreement at same Takeover Proposal referred to in clause (i) above), (iv) thereafter the Parent Stockholders’ Meeting, respectively, an Acquisition transactions contemplated by such Takeover Proposal are consummated and (provided that, for purposes of this Section 8.2(f)(iiiv) and Section 8.2(f)(iv) below, all percentages in the definition thereof shall be deemed to be equal to 50%) with respect to Parent shall have been publicly announced and not withdrawn, and (C) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent or a Competing Transaction with respect to Parent is otherwise consummated, in either case, within twelve months following the case of termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iii) shall be reduced by the amount of any payments made pursuant to Section 8.2(c); 8.2(b) or (iv) if (A) either party shall terminate this Agreement pursuant to Section 8.1(b8.3(b), and (B) at any time after the Parent Stockholder Approval shall not have been obtained, then Parent shall, on the date of this Agreement and before consummation of the termination of this Agreementtransactions described in such Takeover Proposal, an Acquisition Proposal with respect to pay the Parent shall have been publicly announced and not publicly and bona fide withdrawn, and (C) following the existence of such Acquisition Proposal and prior to any such termination, Parent shall have intentionally breached (and not cured after notice thereof) any of its covenants or agreements set forth in this Agreement in any material respect, which breach shall have materially contributed Termination Fee to the failure Company, by wire transfer of the Effective Time same day funds to occur on or before the termination of this Agreement, and (D) Parent enters into a definitive agreement providing for a Competing Transaction with respect to Parent which or a Competing Transaction with respect to Parent is otherwise consummated, an account specified in either case, within twelve months following the termination of this Agreement; provided, however, that any such termination fee payable pursuant to this clause (iv) shall be reduced writing by the amount of any payments made pursuant to Section 8.2(c)Company.
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