Common use of Termination Consideration Clause in Contracts

Termination Consideration. (a) In the event that this Agreement is validly terminated by Parent pursuant to Section 10.2(a) and, at the time of any such termination, the Company is not permitted to terminate this Agreement pursuant to Section 10.2(b) (such termination, a “Parent Termination with Cause”), then the Company shall pay to Parent a termination fee in the amount equal to the lesser of (i) the Parent Reimbursable Termination Expenses multiplied by 1.5 or (ii) USD $5,000,000 (the “Cause Termination Fee”). The Cause Termination Fee shall be due within two (2) business Days of Parent having provided Company reasonable substantiation (copies of receipts or invoices, basis for calculation, etc.) of its calculation of the amount of Parent Reimbursable Termination Expenses. In the event that the Company cannot pay the Cause Termination Fee in cash within such period, Parent shall receive a convertible bond materially equivalent to the Company’s existing outstanding convertible bonds, but with an enhanced coupon rate of 12% per annum. (b) In the event of a Parent Termination with Cause, the Company Parties shall indemnify, and hold harmless each Parent Indemnified Person from and against any claim brought against any and all Losses suffered or incurred by such Parent Indemnified Person (regardless of whether or not such Losses relate to any third-party claims) that directly, or indirectly, arise out of, result from or are related to any (i) breach or violation of, or default in connection with, any pre-Closing covenant made by or to be performed by the Company in this Agreement or (ii) breach of, or inaccuracy in any Company Fundamental Representations. (c) In the event that this Agreement is validly terminated (i) by Parent pursuant to Section 10.2(c) and, at the time of any such termination, the Company is not permitted to terminate this Agreement pursuant to Section 10.2(b), or (ii) by Parent pursuant to Section 10.2(a)(ii) or by the Company pursuant to Section 10.2(d) and, within twelve (12) months of such termination, the Company enters into an Alternative Transaction, then the Company shall pay to Parent a termination fee in the amount equal to US $12,000,000 (the “Non-Cause Termination Fee”). In the event this Agreement is terminated pursuant to the foregoing clause (i), the Non-Cause Termination Fee shall be payable within two (2) Business Days after such termination and in the event this Agreement is terminated pursuant to the foregoing clause (ii), the Non-Cause Termination Fee shall be payable within two (2) Business Days after the Closing of such Alternative Transaction. In the event that the Company cannot pay the Non-Cause Termination Fee in cash when due and payable, Parent shall receive a convertible bond materially equivalent to the Company’s existing outstanding convertible bonds, but with an enhanced coupon rate of 12% per annum. (d) The Company and Parent acknowledge and agree that the agreements contained in this Section 10.4 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, none of the Company or Parent would enter into this Agreement; accordingly if the Company fails promptly to pay any amount due pursuant to this Section 10.4, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Cause Termination Fee or the Non-Cause Termination Fee, the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.4 from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made. All payments under this Section 10.4 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent.