Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee"). (ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto. (iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Practice Works Inc), Merger Agreement (Medical Dynamics Inc)
Termination Fee. (ia) Except as otherwise set forth in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses, whether or not the Transactions are consummated.
(b) In the event that that:
(1i) Parent an Acquisition Proposal shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed made to the Company or shall have been made directly to the Stockholders generally or any Person shall have publicly announced an intention to make an Acquisition Proposal and thereafter, (bA) within nine this Agreement is terminated (9I) months after such termination, by the Company shall enter or Parent pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii) or (II) by Parent pursuant to Section 9.1(c)(iii) and (B) the Company or the Company Subsidiary enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, recommends to its stockholders, or consummates a transaction contemplated by, any Acquisition Proposal (replacing “15%” in the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00definition thereof with “50%”) (within 12 months of the "Termination Fee").date this Agreement is terminated;
(ii) In this Agreement is terminated by Parent pursuant to Section 9.1(c)(i) or Section 9.1(c)(ii) (or by Parent or the event that Company pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii) or by Parent shall pursuant to Section 9.1(c)(iii) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.1.F.9.1(c)(i) or Section 9.1(c)(ii)); or
(iii) this Agreement is terminated by the Company pursuant to Section 9.1(d)(i); then, then in any such event under clause (i), (ii) or (iii) of this Section 9.3(b), the Company shall promptly reimburse pay to Parent, in cash at the time specified in the next sentence, a nonrefundable termination fee of $80 million (the “Termination Fee”). Any payment of the Termination Fee required to be made pursuant to (1) Section 9.3(b)(i) shall be made to Parent for Parent's costs and expenses within two Business Days of the occurrence of the applicable event described in connection with clause (B) of Section 9.3(b)(i); (2) Section 9.3(b)(ii) shall be made to Parent within two Business Days after termination of this Agreement by Parent as set forth in Section 9.3(b)(ii) and the transactions contemplated hereby ("Parent's Expenses"), 3) Section 9.3(b)(iii) shall be made to Parent immediately prior to and if, within nine (9) months of as a condition to such termination of this Agreement, Agreement by the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company as set forth in Section 9.3(b)(iii). All payments under this Section 9.3(b) shall be consummatedmade by wire transfer of immediately available funds to an account to be designated by Parent. For the avoidance of doubt, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds under this Section 9.3 shall be payable only once and not in duplication even though the amount of Parent's Expenses previously reimbursed by Company pursuant heretoTermination Fee may be payable under one or more provisions hereof.
(iiic) The Company acknowledges that the agreements contained in this Section 8.3.B. 9.3(b) are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these those agreements, Parent and Merger Sub would not enter into this Agreement; accordingly. Accordingly, if the Company fails to pay make payment of any amount payable under Section 9.3(b) within the applicable time period specified in Section 9.3(b) and Parent commences a timely manner the amounts due pursuant Proceeding to this Section 8.3.B. and, in order to obtain collect such payment, Parent makes a claim amount that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.Company, the Company shall pay to reimburse Parent for its costs reasonable fees and expenses (including reasonable attorneys' ’ fees and expenses) incurred in connection with such suit, together with Proceeding and shall pay interest on the amounts set forth in this Section 8.3.B. amount of the payment at the prime rate of interest as reported by SunTrust Bank, N.A. published in The Wall Street Journal in effect on the date such payment the amount was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company payable pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the CompanySection 9.3(b), directly or indirectly, with such interest to accrue beginning on the date such amount first was payable pursuant to Section 9.3(b) to the date of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypayment.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
Termination Fee. (ia) In NAL shall pay to FNFG, by wire transfer of immediately available funds, $60,000,000 (the “Termination Fee”) as follows:
(1) in the event that (1) Parent FNFG shall terminate this Agreement pursuant to Section 8.1.G. 8.01(c)(1)(A) or (B), NAL shall pay to FNFG the Termination Fee no later than the second business day following such termination; or
(2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent (A) FNFG shall terminate this Agreement pursuant to Section 8.1.F.8.01(b) or Section 8.01(c)(1)(C) or either of FNFG or NAL shall terminate this Agreement pursuant to Section 8.01(d), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with (B) at any time after the date of this Agreement and the transactions contemplated hereby ("Parent's Expenses")prior to such termination, a bona fide Acquisition Proposal with respect to NAL shall have been made public and not withdrawn or abandoned, and if, within nine (9C) months following the announcement of such termination Acquisition Proposal, NAL shall have breached any of its representations, warranties, covenants or agreements set forth in this Agreement, Company then NAL shall enter into pay to FNFG the Termination Fee (x) if such breach was other than one described in the succeeding clause (y) of this sentence, and only if an Acquisition Proposal with respect to NAL is consummated, or a definitive agreement is entered into by NAL with respect to any Company an Acquisition or any Company Proposal with respect to NAL, within 15 months from the date of such termination, no later than the fifth business day after such Acquisition involving Company shall be Proposal is consummated, then concurrently with or (y) if such breach was a knowing, intentional, willful or material breach of Sections 6.01, 6.02(a), 6.03(a), 6.06(a), 6.08 or 6.10, on the execution of a definitive agreement with respect tosecond business day immediately following such termination.
(b) In the event that NAL shall terminate this Agreement pursuant to Section 8.01(c)(2), or the consummation of, as applicable, such Company Acquisition, then Company FNFG shall pay to Parent an amount in cash equal to the amount by which NAL the Termination Fee exceeds by wire transfer of immediately available funds no later than the amount of Parent's Expenses previously reimbursed by Company pursuant heretosecond business day following such termination.
(iiic) The Company acknowledges NAL and FNFG acknowledge that the agreements contained in this Section 8.3.B. 8.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent neither party would not enter into this Agreement; accordingly, if . The amounts payable by NAL and FNFG pursuant to Section 8.03(a) and (b) hereof constitute liquidated damages and not a penalty and shall be the Company sole monetary remedy of such party in the event of termination of this Agreement on the bases specified in such section. In the event that either party fails to pay in a timely manner the when due any amounts due pursuant to payable under this Section 8.3.B. and8.03, in order to obtain then (1) such payment, Parent makes a claim that results in a judgment against party shall reimburse the Company other party for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its all costs and expenses (including attorneys' disbursements and reasonable fees and expensesof counsel) incurred in connection with the collection of such suitoverdue amount, together with and (2) such party shall pay to the other party interest on such overdue amount (for the amounts set forth period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in this Section 8.3.B. full) at a rate per annum equal to the prime rate of interest as reported by SunTrust Bank, N.A. published in effect The Wall Street Journal on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Newalliance Bancshares Inc), Merger Agreement (First Niagara Financial Group Inc)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y7.1(g), (a) at or then the Company shall pay Parent, prior to or concurrently with such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement is terminated by Parent pursuant to Section 8.1.F.7.1(e), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount within three Business Days of Parent's Expenses previously reimbursed by Company pursuant heretosuch termination.
(iii) The In the event that this Agreement is terminated by the Company acknowledges that pursuant to Section 7.1(b) (or by Parent pursuant to Section 7.1(b) in the agreements contained in event the Company is prohibited from terminating this Agreement pursuant to such Section 8.3.B. are 7.1(b)) and (A) an integral part Acquisition Proposal had been publicly announced prior to the occurrence of the events giving rise to the right to terminate pursuant to such section and which Acquisition Proposal shall not have been withdrawn and (B) within six months of such termination the Company consummates a transaction with respect to such Acquisition Proposal or the transactions contemplated by this Agreementsuch Acquisition Proposal are consummated, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., then the Company shall pay Parent, concurrently with the consummation of such Acquisition Proposal, the Termination Fee.
(iv) In the event that this Agreement is terminated by either Parent or the Company pursuant to Parent its costs Section 7.1(d) and expenses (including attorneys' fees and expensesA) in connection with such suit, together with interest on an Acquisition Proposal had been publicly announced prior to the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment occurrence of the fees described in this Section 8.3.B. events giving rise to the right to terminate pursuant to such section and which Acquisition Proposal shall not be in lieu have been withdrawn and (B) within six months of damages incurred in such termination the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than consummates a transaction with respect to such Acquisition Proposal or the transactions contemplated by this Agreement): (i) a mergersuch Acquisition Proposal are consummated, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving then the Company shall pay Parent, concurrently with the consummation of such Acquisition Proposal, the Termination Fee.
(v) In the event that this Agreement is terminated pursuant to which the shareholders of Section 7.1(a), Section 7.1(b), Section 7.1(c), Section 7.1(d), Section 7.1(h), Section 7.1(i), Section 7.1(j) or otherwise by either Parent or the Company immediately preceding such transaction hold less than fifty percent (50%) and, pursuant to the terms of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition this Section 7.2 no Termination Fee is payable by the Company to Parent as a result of assets representing in excess such termination, then Parent shall pay to the Company the Reverse Termination Fee within three Business Days of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companytermination.
Appears in 2 contracts
Sources: Merger Agreement (Medistem Inc.), Agreement and Plan of Merger (Intrexon Corp)
Termination Fee. (a) If this Agreement is terminated by the Company pursuant to Section 9.01(f), then the Company shall, concurrently with (and as a precondition to the effectiveness of) such termination, pay to Parent by wire transfer of same-day funds an amount equal to $9,350,000 (the “Termination Fee”).
(b) If this Agreement is terminated by Parent pursuant to Section 9.01(e), then the Company shall pay Parent the Termination Fee by wire transfer of same-day funds immediately, and in any event within three (3) Business Days, following such termination of this Agreement.
(c) If this Agreement is terminated by either Parent or the Company pursuant to Section 9.01(b)(i) or Section 9.01(b)(iii) or by Parent pursuant to Section 9.01(c), then:
(i) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, Except in the case of either (x) or (ya termination pursuant to Section 9.01(b)(i), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent, no later than the second (2nd) Business Day following termination by Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (concurrently with termination by the "Termination Fee").Company, all of the Expenses of Parent and Merger Sub; and
(ii) In If the event that Parent shall terminate this Agreement pursuant Company (and/or any Subsidiary thereof) (A) enters into any letter of intent, agreement in principle, acquisition agreement or other similar Contract (other than an Acceptable Confidentiality Agreement) relating to Section 8.1.F.any Takeover Proposal, then Company shall promptly reimburse Parent for Parent's costs and expenses (B) takes a neutral position, recommends, adopts or approves any Takeover Proposal, or proposes publicly or otherwise to recommend, adopt or approve any Takeover Proposal or resolve or agree to take any such action or (C) fails to recommend, in connection with this Agreement and a Solicitation/Recommendation Statement on Schedule 14D-9, against any Takeover Proposal subject to Regulation 14D under the transactions contemplated hereby Exchange Act, in each case within six ("Parent's Expenses"), and if, within nine (96) months following the date of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay Parent the Termination Fee (less Expenses previously paid pursuant to Parent its costs and expenses (including attorneys' fees and expensesSection 9.03(c)(i), if any) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate by wire transfer of interest as reported by SunTrust Bank, N.A. in effect same-day funds on the date of entry into any such payment was required to be made. Payment letter of the fees described intent, agreement in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreementprinciple, acquisition agreement or other similar Contract. For the purposes of this AgreementSection 9.03(c), "Company Acquisition" the term “Takeover Proposal” shall mean any of have the following transactions meaning assigned to such term in Article I except that all references to “twenty percent (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant 20%)” therein shall be deemed to which the shareholders of the Company immediately preceding such transaction hold less than be references to “fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company”.
Appears in 2 contracts
Sources: Merger Agreement (Easylink Services International Corp), Merger Agreement (Open Text Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. 9.1(c)(ii) or (2) this Agreement shall be terminated (x) by Parent or Merger Sub pursuant to Section 8.1.B. 9.1(d)(ii), then the Company shall (i) pay the Termination Fee and (ii) reimburse in its entirety the amount of the Initial Panthera Termination Fee and Parent’s payment to the Company of the other payments of the Panthera Termination Fee or (y) portions thereof, such amounts to be paid as directed in writing by Parent, at or prior to the time of termination in the case of a termination pursuant to Section 8.1.D. 9.1(c)(ii) or as promptly as possible (but in any event within two Business Days) following termination of this Agreement in the case of a termination pursuant to Section 9.1(d)(ii).
(b) In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company, Parent or Merger Sub pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) and, at any time after the date of this Agreement and prior to the Company Stockholder Meeting (in the case of a termination pursuant to Section 9.1(b)(iii)) or prior to the breach giving rise to the right of termination (in the case of a termination pursuant to Section 9.1(d)(i)), a bona fide, written Company Acquisition Proposal involving the purchase of not less than a majority of the outstanding voting securities of the Company shall have been publicly announced or publicly made known and, in the case of either (x) or (ytermination pursuant to Section 9.1(b)(iii), (a) not publicly withdrawn at or least two Business Days prior to such terminationthe Company Stockholder Meeting, there shall exist or have been proposed an Acquisition Proposal and (b) if within nine (9) twelve months after such termination, termination pursuant to Section 9.1(b)(iii) or Section 9.1(d)(i) the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of its Subsidiaries enters into a definitive agreement with respect to, or consummates, any Company Acquisition Proposal involving the consummation ofpurchase of not less than a majority of the outstanding voting securities of the Company, as applicablethen, on the date of such Company Acquisitionexecution or consummation, the Company shall pay the Termination Fee as directed in writing by Parent, less the amount of any Parent Expenses previously paid to Parent an by the Company pursuant to Section 9.2(c); provided, that the amount in cash equal of any previous reimbursement of Parent’s payment of the Panthera Termination Fee pursuant to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00Section 9.2(c) (shall not reduce the "amount of the Termination Fee")Fee paid to Parent.
(iic) In the event that Parent shall terminate this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 8.1.F., then 9.1(b)(iii) (or is terminated by the Company shall promptly reimburse Parent for Parent's costs and expenses in connection with pursuant to a different section of Section 9.1 at a time when this Agreement and was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the transactions contemplated hereby ("Parent's Expenses"Company, Parent or Merger Sub pursuant to a different section of Section 9.1 hereof at a time when this Agreement was terminable pursuant to Section 9.1(d)(i), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount under circumstances in cash equal to the amount by which the Termination Fee exceeds is not payable pursuant to this Section 9.2, then the Company shall (i) pay as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement, which, in any event, shall not be greater than $15,000,000 (“Parent Expenses”) as directed in writing by Parent, and (ii) as promptly as possible, reimburse in its entirety the amount of the Initial Panthera Termination Fee and Parent's Expenses previously reimbursed ’s payment to the Company of the other payments of the Panthera Termination Fee or portions thereof, such amounts to be paid as directed in writing by Parent at or prior to the time of termination; provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant heretoto Section 9.2(b) shall not relieve the Company of its obligations to pay the Parent Expenses and reimburse Parent of its payment of the Panthera Termination Fee pursuant to this Section 9.2(c); and provided, further, that the payment by the Company of Parent Expenses and reimbursement of Parent’s payment of the Panthera Termination Fee pursuant to this Section 9.2(c) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 9.2(b) except to the extent indicated in Section 9.2(b).
(iiid) The Company [Intentionally Omitted.]
(e) Any amount that becomes payable pursuant to Section 9.2(a), Section 9.2(b) or Section 9.2(c) shall be paid by wire transfer of immediately available funds to an account designated by the party entitled to receive such payment.
(f) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 8.3.B. 9.2 are an integral part of the transactions contemplated by this Agreement, and that, that without these agreementsagreements the Company, Parent and Merger Sub would not enter have entered into this Agreement; accordingly, if and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. If the Company fails to pay as directed in a timely manner the writing by Parent any amounts due to Parent or Merger Sub pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against 9.2 or within the Company for the amounts set forth time periods specified in this Section 8.3.B.9.2, the Company shall pay to Parent its the costs and expenses (including attorneys' reasonable legal fees and expenses) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the such unpaid amounts set forth in this Section 8.3.B. at the prime lending rate of interest prevailing during such period as reported by SunTrust Bankpublished in The Wall Street Journal, N.A. in effect calculated on a daily basis from the date such payment was amounts were required to be made. Payment paid until the date of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyactual payment.
Appears in 2 contracts
Sources: Merger Agreement (Community Health Systems Inc), Merger Agreement (Triad Hospitals Inc)
Termination Fee. (a) If, but only if, the Agreement is terminated:
(i) In by either the event that (1) Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. 8.1(b)(i) or (2Section 8.1(b)(iii) this Agreement shall be terminated or by Parent pursuant to Section 8.1(d)(i), in any such case if the Company (x) pursuant to Section 8.1.B. receives or has received an Acquisition Proposal, which proposal has been publicly announced after the date of this Agreement and (y) pursuant to Section 8.1.D. and, in the case of either within twelve (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (912) months of such the termination of this Agreement, Company shall enter into consummates a transaction regarding, or executes a binding or definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement which is later consummated with respect to, any Acquisition Proposal, then the Company shall pay, or cause to be paid, to Parent a fee equal to $2,500,000 (the “Termination Fee”) plus, if not previously paid pursuant to Section 8.3(a)(ii) below, the Expense Amount, by wire transfer of same day funds to an account designated by Parent, not later than the consummation ofof such transaction arising from any such Acquisition Proposal; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”;
(ii) by either the Company or Parent pursuant to Section 8.1(b)(iii), the Company shall pay, or cause to be paid, to Parent the Expense Amount (by wire transfer to an account designated by Parent) within two (2) Business Days of such termination; or
(iii) by the Company pursuant to Section 8.1(c)(ii) then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent as a condition to the effectiveness of such termination; or
(iv) by Parent pursuant to Section 8.1(d)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent, within two (2) Business Days of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that:
(i) any Termination Fee paid by the Company pursuant to Section 8.3(a) shall be Parent and Merger Sub’s sole and exclusive remedy with respect to the termination of this Agreement or any breach by the Company hereunder other than in the event of fraud or a willful breach;
(ii) under no circumstances shall the Company be required to pay the Termination Fee or Expense Amount, as applicable, such Company Acquisition, then Company shall pay earlier than one (1) full Business Day after receipt of appropriate wire transfer instructions from the party entitled to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.payment; and
(iii) The under no circumstances shall the Company be required to pay the Termination Fee or Expense Amount, as applicable, on more than one occasion.
(c) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Payment is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which it is payable for the efforts and thatresources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger and the other transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.3 and, in order to obtain such payment, Parent makes commences a claim suit that results in a judgment against the Company for the amounts payment of any amount set forth in this Section 8.3.B.8.3, the Company shall pay to Parent its the costs and expenses (including attorneys' fees and expenses) of Parent in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime annual rate of interest as reported by SunTrust Bank, N.A. in effect on five percent (5%) for the period from the date such payment was required to be made. Payment of made through the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in date such payment was actually received, or such lesser rate as is the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated maximum permitted by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyapplicable Law.
Appears in 2 contracts
Sources: Merger Agreement (RCS Capital Corp), Merger Agreement (Investors Capital Holdings LTD)
Termination Fee. (ia) In the event that that:
(i) (1) Parent this Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date] (provided, in the case of a termination by Parent, Company had the right to terminate this Agreement pursuant to Section 8.1.G. 8.1(b)(i) [End Date], or Company had the right to terminate this Agreement pursuant to Section 8.1(c)(i) [Parent Change in Recommendation] or Section 8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants]), (y) Section 8.1(b)(iii) [Parent No-Vote] or (z) Section 8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants], (2) Parent or any other Person shall have publicly disclosed or announced a Parent Alternative Proposal made on or after the date of this Agreement shall be terminated but prior to the Parent Meeting, and such Parent Alternative Proposal has not been publicly withdrawn (xA) in the case of clause (1)(x) above, prior to the End Date, (B) in the case of clause (1)(y) above, at least five (5) days prior to the date of the Parent Meeting, and (C) in the case of clause (1)(z) above, prior to a material breach that gives rise to Company’s termination right pursuant to Section 8.1.B. 8.1(c)(ii), and (3) within twelve (12) months of such termination, a Parent Alternative Proposal is consummated or a Parent Alternative Acquisition Agreement is entered into (y) pursuant which Parent Alternative Proposal is thereafter consummated); provided that, for purposes of this clause (3), the references to Section 8.1.D. “20%” in the definition of “Parent Alternative Proposal” shall be deemed to be references to “more than 50%” and, in the case of either clause (x1)(x), references in this clause (3) to “Parent Alternative Proposal” shall be with the same Person or Affiliate of such Person that made the Parent Alternative Proposal that was made and not publicly withdrawn as set forth in clause (2) or with any other Person that submitted a subsequent Parent Alternative Proposal in response to any then pending Parent Alternative Proposal referenced in clause (y2);
(ii) Company shall have terminated this Agreement pursuant to Section 8.1(c)(i) [Parent Change in Recommendation]; or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(iii)[Parent Superior Proposal]; then, Parent shall, (aA) at in the case of clause (i) above, upon the consummation of the Parent Alternative Proposal, pay Company (or prior to such terminationone or more of its designees) the Parent Termination Fee less any amount previously paid under Section 8.3(c); (B) in the case of clause (ii) above, there shall exist or have been proposed an Acquisition Proposal and within two (b2) within nine (9) months Business Days after such termination, pay Company shall enter (or one or more of its designees) the Parent Termination Fee; and (C) in the case of clause (iii) above, upon the entry into a definitive agreement Parent Alternative Acquisition Agreement, pay Company (or one or more of its designees) the Parent Termination Fee; in each case by wire transfer of immediately available funds to one or more accounts designated by Company; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Following receipt by Company (or one or more of its designees) of the Parent Termination Fee in accordance with this Section 8.3(a), Parent shall have no further liability with respect to any this Agreement or the transactions contemplated herein to Company Acquisition or its Subsidiaries or Affiliates or any Company Acquisition other Person, other than in respect of Willful Breach of this Agreement or Fraud. 116 (b) In the event that:
(i) (1) this Agreement shall be consummated, thenhave been terminated pursuant to (x) Section 8.1(b)(i) [End Date] (provided, in the case of (1)a termination by Company, promptly after such termination, or in Parent had the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay right to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F.8.1(b)(i) [End Date], then Company shall promptly reimburse or Parent for Parent's costs and expenses in connection with had the right to terminate this Agreement pursuant to Section 8.1(d)(ii) [Company Change in Recommendation] or Section 8.1(d)(i) [Company Breach of Reps and Warranties or Covenants]), (y) Section 8.1(b)(iv) [Company No-Vote] or (z) Section 8.1(d)(i) [Company Breach of Reps and Warranties or Covenants], (2) Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the transactions contemplated hereby date of this Agreement but prior to the Company Stockholder Approval Deadline, and such Company Alternative Proposal has not been publicly withdrawn ("A) in the case of clause (1)(x) above, prior to the End Date, (B) in the case of clause (1)(y) above, at least five (5) days prior to the date of the Company Stockholder Approval Deadline, and (C) in the case of clause (1)(z) above, prior to a material breach that gives rise to Parent's Expenses"’s termination right pursuant to Section 8.1(d)(i), and if, (3) within nine twelve (912) months of such termination termination, a Company Alternative Proposal is consummated or a Company Alternative Acquisition Agreement is entered into (which Company Alternative Proposal is thereafter consummated); provided that, for purposes of this Agreementclause (3), the references to “20%” in the definition of “Company Alternative Proposal” shall enter into be deemed to be references to “more than 50%” and, in the case of clause (1)(x), references in this clause (3) to “Company Alternative Proposal” shall be with the same Person or Affiliate of such Person that made the Company Alternative Proposal that was made and not publicly withdrawn as set forth in clause (2) or with any other Person that submitted a definitive agreement with respect subsequent Company Alternative Proposal in response to any then pending Company Acquisition or any Alternative Proposal referenced in clause (2);
(ii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(ii) [Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount Change in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.Recommendation]; or
(iii) The Company acknowledges that the agreements contained in shall have terminated this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due Agreement pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the 8.1(c)(iii) [Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.Superior Proposal];
Appears in 2 contracts
Sources: Merger Agreement (Trump Media & Technology Group Corp.), Merger Agreement (Trump Media & Technology Group Corp.)
Termination Fee. (a) If this Agreement is terminated (i) In the event that (1) by Parent shall terminate this Agreement pursuant to Section 8.1.G. 7.4(a) (Company Change in Recommendation) or (ii) by the Company pursuant to Section 7.3(b) (Termination for Superior Proposal), then the Company shall, within two (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, Business Days after such termination in the case of either clause (xi) or concurrently with such termination in the case of clause (yii), pay Parent a fee equal to $21,000,000 (the “Termination Fee”), by wire transfer of immediately available funds to an account designated by Parent.
(b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) (Outside Date) or by Parent pursuant to Section 7.4(b) (Company Breach) (solely as a result of the Company’s breach of any agreement or covenant to be performed or complied with by it under this Agreement) or otherwise terminated at a time when Parent could terminate pursuant to Section 7.2(a) (Outside Date) or Section 7.4(b) (Company Breach) (solely as a result of the Company’s breach of any agreement or covenant to be performed or complied with by it under this Agreement), (aii) at or prior to such terminationtermination referred to in clause (i) of this sentence, there but after the date of this Agreement, a Company Acquisition Proposal shall exist or have been proposed an Acquisition Proposal publicly made to the Company, shall have become publicly known or shall have been made directly to the Company’s stockholders (whether or not conditional), and, in each case, not publicly withdrawn, and (biii) within nine twelve (912) months after the date of such terminationtermination of this Agreement, the Company shall enter enters into a definitive agreement with respect to any Company Acquisition or Proposal and any such Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be Proposal is subsequently consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay the Termination Fee to Parent its costs and expenses (including attorneys' fees and expenses) in connection Parent, by wire transfer of immediately available funds to an account designated by Parent, concurrently with such suitconsummation, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bankapplicable; provided, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the that solely for purposes of this AgreementSection 7.5(b), "the term “Company Acquisition" Acquisition Proposal” shall mean any of have the following transactions meaning assigned to such term in Section 5.2(d), except that the references to “twenty percent (other than the transactions contemplated by this Agreement): (i20%) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant more” shall be deemed to which the shareholders of the Company immediately preceding such transaction hold less than be references to “fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by more”. In no event shall the Company of assets representing in excess of fifty percent (50%) of be required to pay the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
Termination Fee. (a) The parties agree that if this Agreement is terminated by Parent in accordance with Section 7.1(e) or by the Company in accordance with Section 7.1(f), then the Company shall pay (or cause to be paid) to Intermediate Parent (or its designee) prior to or concurrently with such termination, in the case of a termination by the Company, or within two (2) Business Days thereafter, in the case of a termination by Parent, a termination fee equal to eighteen million four hundred seventy-two thousand dollars ($18,472,000) (the “Termination Fee”); provided, however, that in the event the Termination Fee becomes payable as a result of the termination of this Agreement prior to the Window Period End Time (i) In the event that (1) by Parent shall terminate this Agreement pursuant to Section 8.1.G. 7.1(e) in response to a Change of Board Recommendation effected in compliance with Section 5.3(d) with respect to a Superior Proposal by a Qualified Bidder or (2ii) this Agreement shall be terminated (x) by the Company pursuant to Section 8.1.B. or (y7.1(f) pursuant with respect to Section 8.1.D. anda Superior Proposal by a Qualified Bidder, then, in the case of either of the immediately preceding clauses (xi) or (yii), “Termination Fee” means an amount equal to ten million dollars (a$10,000,000).
(b) at The parties agree that (i) if (A) this Agreement is terminated in accordance with Section 7.1(b) or 7.1(g) and, prior to the date of such termination, there shall exist or have been proposed an a bona fide Acquisition Proposal is (1) made public by the Company or any other Person and (b2) not withdrawn or (B) this Agreement is terminated in accordance with Section 7.1(d) and, prior to the date of completion of the Company Stockholders Meeting, a bona fide Acquisition Proposal is (1) made public by the Company or any other Person and (2) not withdrawn and (ii) within nine twelve (912) months after such termination, the Company shall enter (A) enters into a definitive agreement with respect to any Company such Acquisition or any Company Proposal, which Acquisition shall be Proposal is subsequently consummated, thenor (B) consummates any such Acquisition Proposal, in then the case of Company shall pay (1or cause to be paid) the Termination Fee to Intermediate Parent (or its designee), promptly after such termination, or in the case of no later than two (2), concurrently with the execution of a definitive agreement with respect to, or ) Business Days after the consummation ofof such transaction, as applicable. For the avoidance of doubt, such Company Acquisition, the Company shall not be obligated to pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement Fee with respect to any Company Acquisition or any Company Proposal unless such Acquisition involving Company Proposal is consummated. For purposes of this Section 7.3(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, except that the references to “20%” shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay deemed to Parent an amount in cash equal be references to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto“50%.”
(iiic) The Company acknowledges that the agreements agreement contained in this Section 8.3.B. are 7.3 is an integral part of this Agreement and that, without this Section 7.3, Merger Sub, Intermediate Parent and Parent would not have entered into this Agreement. Accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 7.3, the Company shall pay to Merger Sub all reasonable fees, costs and expenses of enforcement (including reasonable attorneys’ fees as well as reasonable expenses incurred in connection with any action initiated by Parent, Intermediate Parent or Merger Sub), together with interest on the amount of the Termination Fee at the prime lending rate as published in The Wall Street Journal, in effect on the date such payment is made.
(d) For the avoidance of doubt, in no event shall the Company be required to pay the Termination Fee on more than one (1) occasion.
(e) Subject to Parent’s and Merger Sub’s rights set forth in Section 8.14, if and to the extent the Termination Fee is required to be, and is in fact, paid by the Company pursuant to this Section 7.3, Intermediate Parent’s (or its designee’s) right to receive payment thereof shall be the sole and exclusive remedy of Parent, Intermediate Parent and Merger Sub against the Company, the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or affiliates (collectively, “Company Related Parties”) for any loss suffered as a result of the failure of the transactions contemplated by this Agreement, including the Merger, to be consummated or for a breach or failure to perform hereunder or otherwise, and thatupon payment of such amount, without these agreements, Parent would not enter into this Agreement; accordingly, if none of the Company fails Related Parties shall have any further liability or obligation relating to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach or arising out of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than Agreement or the transactions contemplated by this Agreement): , including the Merger (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving except that the Company shall also be obligated with respect to Section 7.3(c) and except that the applicable Company Related Parties shall remain obligated for, and Parent and Merger Sub may be entitled to remedies with respect to the provisions and agreements surviving such termination pursuant to which Section 7.2). For the shareholders avoidance of doubt, while Parent and Merger Sub may pursue, in the alternative, both a grant of specific performance in accordance with Section 8.14 and the payment of the Company immediately preceding such transaction hold less than fifty percent (50%) Termination Fee under Section 7.3, under no circumstances shall Parent and Merger Sub be permitted or entitled to receive both a grant of specific performance and the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
Termination Fee. (a) Except as otherwise set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement, the Mergers and the other transactions contemplated by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Mergers are consummated. Notwithstanding the foregoing, (i) Parent and the Company each shall pay 50% of all filing fees payable pursuant to the HSR Act or any additional Antitrust Laws, (ii) Parent shall pay the SEC filing fees associated with the S-4 Registration Statement and (iii) the Company shall pay all costs and expenses incurred in connection with the printing and mailing of the Proxy Statement/Prospectus.
(b) In the event that that:
(1i) Parent shall terminate this Agreement is terminated pursuant to Section 8.1.G. or 8.1(c);
(2ii) this Agreement is terminated pursuant to Section 8.1(f); or
(iii) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) or Section 8.1(g), (B) after the date of this Agreement and at or prior to the time of the termination of this Agreement, a Third Party shall have made, commenced or submitted, or publicly announced its intention to make, commence or submit, an Acquisition Proposal, and (C) the Company or any Subsidiary of the Company consummates an Acquisition Proposal within twelve (12) months after such termination or the Company or any Subsidiary of the Company enters into a definitive agreement within twelve (12) months after such termination to effect an Acquisition Proposal (provided that, for purposes of this Section 8.3(b)(iii), all percentages in the definition of Acquisition Proposal shall be terminated replaced with 50%), then the Company shall pay to Parent a fee in an amount equal to $7,500,000 (the “Termination Fee”) by wire transfer of immediately available federal funds, free of costs and charges, to an account designated in writing by Parent (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (ySection 8.3(b)(i), within two (a2) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months business days after such termination, Company shall enter (y) in the case of Section 8.3(b)(ii), concurrently with termination of this Agreement, and (z) in the case of Section 8.3(b)(iii), upon the earlier of the entry into a definitive agreement with respect to any Company an Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, Proposal or the consummation ofof an Acquisition Proposal. For the avoidance of doubt, as applicable, any payment made by the Company under this Section 8.3(b) shall be payable only once with respect to this Section 8.3(b) and not in duplication even though such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) payment may be payable under one or more provisions hereof. In the event that Parent shall terminate this Agreement receive full payment pursuant to this Section 8.1.F.8.3(b), then Company the receipt of the Termination Fee shall promptly reimburse Parent be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent's costs and expenses , Merger Sub, Merger LLC, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby ("Parent's Expenses")and the abandonment thereof) or any matter forming the basis for such termination, and ifnone of Parent, within nine (9) months Merger Sub, Merger LLC, any of such termination their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates for damages or any equitable relief arising out of or in connection with this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination.
(c) In the event that this Agreement is terminated by, (A) either Parent or the Company shall enter into pursuant to Section 8.1(b) as a definitive agreement result of any final and nonappealable Order with respect to any Company Acquisition the HSR Act or any other applicable Antitrust Laws, (B) either Parent or the Company Acquisition involving pursuant to Section 8.1(e) and at the time of such termination, any of the conditions set forth in Section 7.1(b), Section 7.1(c) or Section 7.1(d) in connection with any injunction, order, decree, ruling or other action related to the HSR Act or any other applicable Antitrust Laws shall not have been satisfied, or (C) the Company shall be consummatedpursuant to Section 8.1(h) due to a breach by Parent of its obligation to take a Divestiture Action under, and subject to the terms and conditions of, Section 6.1, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company Parent shall pay to Parent an amount in cash the Company a fee equal to $12,000,000 (the amount “Parent Termination Fee”) by which wire transfer of same-day funds on the second (2nd) business day following such termination. In the event that the Company shall receive full payment pursuant to this Section 8.3(c), the receipt of the Parent Termination Fee exceeds shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the amount Acquired Corporations or their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of the Acquired Corporations or any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against Parent's Expenses previously reimbursed , Merger Sub, Merger LLC or any of their respective Affiliates for damages or any equitable relief arising out of or in connection with this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination. For the avoidance of doubt, any payment made by Company pursuant hereto.Parent under this Section 8.3(c) shall be payable only once with respect to this Section 8.3(c) and not in duplication even though such payment may be payable under one or more provisions hereof
(iiid) The Company acknowledges and Parent acknowledge and agree that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent the Company, the Parent, Merger Sub and Merger LLC would not enter into this Agreement; accordingly, if . If the Company fails or Parent, as the case may be, shall fail to pay in a timely manner the amounts due pursuant Termination Fee or Parent Termination Fee when due, such fee shall also be deemed to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against include the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses incurred by the Company, Parent, Merger Sub and Merger LLC (including attorneys' fees and expensesexpenses of counsel) in connection with such suitthe collection under and enforcement of this Section 8.3, together with interest on such unpaid fee, commencing on the amounts set forth in this Section 8.3.B. date that such fee became due, at a rate equal to the prime rate of interest as reported by SunTrust Bank, N.A. published in the “Money Rates” section of The Wall Street Journal in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyfee became due.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Termination Fee. (a) If this Agreement is terminated by (i) In Acquirer or the event Company pursuant to Section 7.1(b) or Section 7.1(c) (to the extent such Order relates to the HSR Act), (ii) at the time of such termination, any of the conditions set forth in Section 6.1(b), Section 6.1(c) or Section 6.3(c) were not satisfied by the Company or waived by Acquirer and (iii) at the time of such termination, each of the other conditions in Section 6.1 and Section 6.3 was satisfied (other than conditions that by their nature are only to be satisfied at the Closing; provided that such conditions were then capable of being satisfied), then Acquirer shall pay, or cause to be paid, to the Company an amount equal to $30,000,000 (1the “Reverse Termination Fee”).
(b) Parent shall terminate Notwithstanding anything to the contrary in this Agreement, (i) if Acquirer fails to effect the Closing when required by Section 1.1(c), or otherwise breaches this Agreement (whether willfully, intentionally, unintentionally or otherwise), then (A) a decree or order of specific performance or an injunction or other equitable relief or (B) the termination of this Agreement pursuant to Section 8.1.G. or 7.1(e) and receipt of the Reverse Termination Fee (2) this Agreement which, for the avoidance of doubt, shall be terminated (xnot include any interest payments thereon) pursuant to the last sentence of Section 8.1.B. 7.3(d), shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise) of the Company (yand any other Person) against the Acquirer for any breach, cost, expense, loss or damage suffered as a result thereof or in connection therewith or related thereto. For the avoidance of doubt, nothing shall prohibit the Company from seeking an injunction, specific performance and/or other equitable relief pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")8.9.
(iic) In Upon proper payment of the event that Parent shall terminate this Agreement Reverse Termination Fee pursuant to Section 8.1.F.7.3(a) and in any case subject to Section 7.3(b), then Acquirer will not have any further liability or obligation to the Company shall promptly reimburse Parent for Parent's costs and expenses in connection with (or any other Person) relating to or arising out of this Agreement and or the transactions contemplated hereby Transactions ("Parent's Expenses"except that the Acquirer shall continue to be bound by any confidentiality or non-disclosure agreement). All proceedings or claims that may be based upon, and ifin respect of, within nine arise under or relate in any manner to (9i) months of such termination this Agreement, (ii) the negotiation, execution or performance of this Agreement, (iii) any breach of this Agreement and (iv) any failure of the Merger or the other Transactions contemplated hereby, may be made only against the Persons that are expressly identified as parties to this Agreement. For the avoidance of doubt, while the Company may pursue both a grant of specific performance in accordance with Section 8.9 and the payment of the Reverse Termination Fee under Section 7.3(a), under no circumstances shall enter into the Company be permitted or entitled to receive both a definitive agreement with respect grant of specific performance to cause the Closing to be consummated in any Company Acquisition case subject to the terms of Section 8.9 and all or any Company Acquisition involving Company shall be consummated, then concurrently with portion of the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Reverse Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoFee.
(iiid) The Company Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by Transactions, (ii) the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company in the circumstances in which the Reverse Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this AgreementAgreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision, and that, (iii) without these agreements, Parent the parties would not enter into this Agreement; accordingly. Accordingly, if (i) the Company Reverse Termination Fee is payable pursuant to Section 7.3(a), (ii) Acquirer fails to pay the Reverse Termination Fee in a timely manner the amounts due pursuant to this timeframe set forth in Section 8.3.B. and, 7.3(a) and (iii) in order to obtain such paymentthe Reverse Termination Fee, Parent makes the Company commences a claim suit that results in a judgment against the Company Acquirer for the amounts set forth in this Section 8.3.B.Reverse Termination Fee or any portion thereof, the Company Acquirer shall pay to Parent the Company its reasonable costs and expenses (including attorneys' fees and expenses’ fees) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Termination Fee. (i) In the event that (1) Parent shall terminate Notwithstanding any provision in this Agreement to the contrary, if:
(a) this Agreement is terminated by the Company pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y7.1(g), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in then the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) 600,000,000 (the "“Termination Fee").
(ii”) In concurrently with and as a condition to the event that Parent shall terminate effectiveness of the termination of this Agreement by the Company pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and 7.1(g);
(b) (i) after the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination date of this Agreement, any bona fide Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) shall enter into a have been publicly announced and not withdrawn prior to the Company Meeting and this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d) and (ii) concurrently with or within twelve (12) months after such termination, any definitive agreement providing for a Company Alternative Proposal (with respect each reference to any “20%” in the definition thereof replaced with “50%”) shall have been entered into by the Company Acquisition or any a Company Acquisition involving Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) shall be have been consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent the Termination Fee in cash (it being understood by the parties that in no event shall Parent be entitled to receive an amount exceeding the Termination Fee or to receive the Termination Fee on more than one occasion), upon the earlier of consummation of the Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) or the date on which the Company enters into the agreement providing for such Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”), as applicable;
(c) this Agreement is terminated by Parent pursuant to Section 7.1(h) and, at the time of the Company Change of Recommendation, a Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) had been made and not withdrawn, then the Company shall pay to Parent the Termination Fee in cash within two (2) Business Days of the date of such termination; provided that, in the event the Company pays the Termination Fee to Parent pursuant to this Section 7.2, the Company shall have no further liability to Parent or Merger Sub arising out of a termination of this Agreement; or
(d) this Agreement is terminated by Parent or the Company pursuant to either Section 7.1(b) or Section 7.1(c) (in the case of Section 7.1(c) to the extent arising in connection with any Regulatory Law) and, at the time of either such termination, all of the conditions to closing set forth in Sections 6.1 and 6.3 have been satisfied or waived in writing (or, if the Closing were to have taken place on the date of termination, such conditions would have been satisfied), other than the conditions set forth in Section 6.1(b)(if the injunction, restraint or prohibition relates to any Regulatory Law) or Section 6.1(c), then Parent shall pay to the Company an amount in cash equal to $750,000,000 (the amount by which the “Reverse Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
Fee”) within two (iii2) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity Business Days of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companytermination.
Appears in 2 contracts
Sources: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Rohm & Haas Co)
Termination Fee. The Company shall pay to CytRx a termination fee in an amount in cash equal to $1,500,000 (ithe “Termination Fee”) In in the event that (1i) Parent shall terminate the Company terminates this Agreement pursuant to Section 8.1.G. 8.01(e); (ii) CytRx terminates this Agreement pursuant to Sections 8.01(f) or (2g); (iii) CytRx terminates this Agreement shall be terminated (x) pursuant to Section 8.1.B. 8.01(c), provided that such termination is as a result of the Company’s breach of Section 6.03; or (yiv) CytRx or the Company terminates this Agreement pursuant to Section 8.1.D. and8.01(h), provided, in the case of either this clause (x) or (yiv), that (aA) at or after the date hereof and prior to such terminationthe Company Stockholders’ Meeting, there shall exist or have been proposed an Acquisition Proposal has been publicly announced and not withdrawn or abandoned at the time of termination, and (bB) within nine (9) months one year after such termination, the Company shall enter enters into a definitive agreement with respect to any Company or consummates such Acquisition or any Company Acquisition Proposal. Payment of the Termination Fee under this Section 8.02 shall be consummated, thenpaid by wire transfer of same-day funds to an account designated by CytRx, in the case event of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement payment pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and clause (i) above on the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months date of such termination of this Agreement, Company shall enter into a definitive agreement with respect in the event of payment pursuant to any Company Acquisition clauses (ii) or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that above within three business days following the agreements contained in this Section 8.3.B. are an integral part date of the transactions contemplated by termination of this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For payment pursuant to clause (iv) above, on the purposes of this Agreement, "Company Acquisition" shall mean any date of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition execution and delivery by the Company of assets representing the definitive agreement regarding such Acquisition Proposal. CytRx acknowledges and agrees that, notwithstanding anything to the contrary in excess of fifty percent (50%) of this Agreement or any document or instrument delivered in connection herewith, the aggregate fair market value of the Company's business immediately prior to such sale or rights set forth in clause (iii) of this Section 8.02 shall be the acquisition by sole and exclusive remedy of CytRx, Merger Subsidiary and their respective affiliates against the Company or its Subsidiaries or any person or group (including by way of a tender offer or an exchange offer or issuance by their respective affiliates with respect to the Company’s breach of Section 6.03 of this Agreement (excluding any willful breach of such provisions), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Innovive Pharmaceuticals, Inc.), Merger Agreement (Cytrx Corp)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement is terminated by (A) the Company pursuant to Section 8.1.G. 7.1(d)(ii) [Parent Adverse Recommendation Change] or Section 7.1(d)(iii) [Parent Material Breach of Non-Solicitation] or (2B) this Agreement Parent pursuant to Section 7.1(c)(iv) [Parent Superior Proposal], then Parent shall be terminated pay to the Company the Parent Termination Fee (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either clause (x) or (yA), as promptly as possible (abut in any event within three (3) at or prior to Business Days following such termination, there shall exist or have been proposed an Acquisition Proposal and (by) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of clause (1B), promptly after prior to or concurrently with such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement is terminated by (A) Parent pursuant to Section 8.1.F.7.1(c)(ii) [Company Adverse Recommendation Change] or Section 7.1(c)(iii) [Company Material Breach of Non-Solicitation] or (B) the Company pursuant to Section 7.1(d)(iv) [Company Superior Proposal], then the Company shall promptly reimburse pay to Parent for Parent's costs and expenses the Company Termination Fee (x) in connection with this Agreement and the transactions contemplated hereby case of clause ("Parent's Expenses"A), as promptly as possible (but in any event within three (3) Business Days) following such termination, and if(y) in the case of clause (B), within nine prior to or concurrently with such termination.
(9iii) months of such termination In the event that (A) prior to the Company Stockholders’ Meeting, an Acquisition Proposal with respect to the Company is publicly proposed or publicly disclosed after the date of this Agreement, (B) this Agreement is terminated by Parent or the Company shall enter into a definitive agreement pursuant to Section 7.1(b)(i) [Termination Date] or Section 7.1(b)(iii) [No Company Stockholder Approval] or by Parent pursuant to Section 7.1(c)(i) [Company Breach], and (C) concurrently with respect to or within twelve (12) months after any such termination described in clause (B), the Company Acquisition or any of the Company Acquisition involving Company shall be consummated, then concurrently with the execution of Subsidiaries enters into a definitive agreement with respect to, or the consummation ofotherwise consummates, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal any Acquisition Proposal with respect to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iiisubstituting fifty percent (50%) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts fifteen percent (15%) threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 8.3.B.7.3(b)(iii)), then the Company shall pay to Parent its costs and expenses the Company Termination Fee as promptly as possible (including attorneys' fees and expensesbut in any event within three (3) in connection Business Days) following the earlier of the entry into such definitive agreement or consummation of such Acquisition Proposal.
(iv) In the event that (A) prior to the Parent Stockholders’ Meeting, an Acquisition Proposal with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on respect to Parent is publicly proposed or publicly disclosed after the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated B) this Agreement is terminated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution Parent or similar transaction involving the Company pursuant to which Section 7.1(b)(i) [Termination Date] or Section 7.1(b)(iv) [No Parent Stockholder Approval] or by the shareholders Company pursuant to Section 7.1(d)(i) [Parent Breach], and (C) concurrently with or within twelve (12) months after any such termination described in clause (B), Parent or any of the Company immediately preceding such transaction hold less than Parent Subsidiaries enters into a definitive agreement with respect to, or otherwise consummates, any Acquisition Proposal with respect to Parent (substituting fifty percent (50%) for the fifteen percent (15%) threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 7.3(b)(iv)), then Parent shall pay to the Company the Parent Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the earlier of the aggregate equity interests in the surviving entry into such definitive agreement or resulting entity consummation of such transaction; Acquisition Proposal.
(iiv) a sale or other disposition In the event that this Agreement is terminated by either party pursuant to Section 7.1(b)(i) [Termination Date] and at the time of such termination, (A) the Company Stockholder Approval shall not have been obtained and (B) Parent would have been permitted to terminate this Agreement pursuant to Section 7.1(c)(ii) [Company Adverse Recommendation Change] or Section 7.1(c)(iii) [Company Material Breach of assets representing Non-Solicitation], then the Company shall pay to Parent the Company Termination Fee as promptly as possible (but in excess any event within three (3) Business Days) following such termination.
(vi) In the event that this Agreement is terminated by either party pursuant to Section 7.1(b)(i) [Termination Date] and at the time of fifty percent such termination, (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iiiA) the acquisition by Parent Stockholder Approval shall not have been obtained and (B) the Company would have been permitted to terminate this Agreement pursuant to Section 7.1(d)(ii) [Parent Adverse Recommendation Change] or Section 7.1(d)(iii) [Parent Material Breach of Non-Solicitation], then Parent shall pay to the Company the Parent Termination Fee as promptly as possible (but in any person or group event within three (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing 3) Business Days) following such termination.
(vii) As used in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Callon Petroleum Co), Merger Agreement (APA Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate If this Agreement is terminated by Parent pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y8.4(a), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in then the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent (by wire transfer of immediately available funds), within five Business Days after such termination, a fee in an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(iib) In the event that Parent shall terminate If this Agreement is terminated by the Company pursuant to Section 8.1.F.8.3(a), then the Company shall promptly reimburse pay to Parent for Parent's costs (by wire transfer of immediately available funds), prior to or simultaneously with such termination, the Termination Fee.
(c) If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c), then the Company shall pay to or as directed by Parent all of the fees and expenses (including all fees and expenses of counsel, accountants, financial advisors, and investment bankers) incurred in connection with this Agreement and the transactions contemplated hereby Transactions in an amount not to exceed $3,000,000 in the aggregate ("Parent's the “Parent Expenses"”), and ifby wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within nine (9) months of such prior to or substantially concurrently with the termination of this Agreement.
(d) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.2(a) or Section 8.2(c), (ii) after the date of this Agreement and prior to the time of the termination of this Agreement an Alternative Proposal shall have been publicly made, commenced, submitted or announced or made known to the Company shall enter into Board prior to this Agreement’s termination and (iii) the Company consummates a transaction with respect to such Alternative Proposal within 12 months after such termination, or signs a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be such Alternative Proposal within 12 months after such termination and such transaction is subsequently consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent, within two Business Days following such consummation, the Termination Fee (less the amount of any Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suitExpenses previously paid to Parent pursuant to Section 8.6(c), together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bankif any); provided that, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the solely for purposes of this AgreementSection 8.6(d), "Company Acquisition" all references to “fifteen percent (15%)” and “eighty-five percent (85%)” in the definition of Alternative Proposal shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant be deemed to which the shareholders of the Company immediately preceding such transaction hold less than be references to “fifty percent (50%).”
(e) of The parties acknowledge and agree that in no event shall the aggregate equity interests Company be obligated to pay the Termination Fee on more than one occasion.
(f) Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the surviving event that the Parent Expenses or resulting entity of such transaction; (ii) a sale or other disposition Termination Fee becomes payable and are paid by the Company of assets representing in excess of fifty percent (50%) of pursuant to this Section 8.6, the aggregate fair market value of Parent Expenses and Termination Fee, as the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company)case may be, directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyshall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Vail Resorts Inc), Merger Agreement (Peak Resorts Inc)
Termination Fee. (ia) In the event that that:
(1i) Parent an Acquisition Proposal shall terminate have been communicated to or otherwise made known to the shareholders, senior management or board of directors of Company, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal after the date of this Agreement,
(ii) thereafter this Agreement is terminated (A) by Parent or Company pursuant to Sections 8.1(b) (if the Requisite Shareholder Approval has not theretofore been obtained), (B) by Parent pursuant to Section 8.1.G. 8.1(e) or (2C) this Agreement shall be terminated (x) by Parent pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y8.1(g), and
(aiii) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and the date that is fifteen (b) within nine (915) months after the date of such terminationtermination Company consummates an Alternative Transaction or enters into any letter of intent or acquisition agreement or other similar agreement related to an Alternative Transaction, then Company shall enter into a definitive agreement with respect to any Company Acquisition on the earlier of the date an Alternative Transaction is consummated or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, letter executed or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation ofentered into, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash a fee equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) 2,600,000 (the "“Company Termination Fee")”) by wire transfer of immediately available funds.
(iib) In the event that Parent shall terminate this Agreement is terminated by Parent pursuant to Section 8.1.F.8.1(f), then Company shall, on the date of termination, pay Parent the Company Termination Fee by wire transfer of immediately available funds.
(c) In the event this Agreement is terminated by Company pursuant to Section 8.1(h), then Parent shall, on the date of such termination, pay Company a fee equal to $2,600,000 (the “Parent Termination Fee”) by wire transfer of immediately available funds.
(d) In event that the Company Termination Fee or the Parent Termination Fee is payable under this Section 8.3, the paying party shall promptly also reimburse Parent the non-paying party for Parent's costs all of its out-of-pocket fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses")herein, including fees and expenses of accountants, financial advisors and attorneys, and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal costs and expenses otherwise allocated to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company non-paying party pursuant heretoto Section 9.2.
(iiie) The Each of Company acknowledges and Parent acknowledge that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent the other party would not enter into this Agreement; accordingly, if the either Company or Parent fails promptly to pay in a timely manner the any amounts due pursuant to this Section 8.3.B. 8.3, and, in order to obtain such payment, Parent makes commences a claim suit that results in a judgment against the Company non-paying party for the amounts set forth in this Section 8.3.B.8.3, the Company non-paying party shall pay to Parent other party its costs and expenses (including reasonable attorneys' ’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. 8.3 from the date of termination of this Agreement at a rate per annum equal to the prime rate of interest as reported by SunTrust Bank, N.A. published in effect The Wall Street Journal on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companymade plus 300 basis points.
Appears in 2 contracts
Sources: Merger Agreement (SCBT Financial Corp), Merger Agreement (Savannah Bancorp Inc)
Termination Fee. (i) In the event that (1) Parent shall terminate If this Agreement is terminated by Parent pursuant to Section 8.1.G. 10.01(c)(i) or 10.01(c)(iii), then the Company shall pay to Parent in immediately available funds $26,757,615 (2the “Termination Fee”), within two Business Days after such termination.
(ii) If (A) this Agreement shall be is terminated (x) by Parent or the Company pursuant to Section 8.1.B. 10.01(b)(i) or (y) 10.01(b)(iii), or by Parent pursuant to Section 8.1.D. and10.01(c)(ii), (B) after the date of this Agreement and prior to such termination (in the case of either (x) or (ya termination pursuant to Section 10.01(b)(i)), prior to the Company Stockholder Meeting (ain the case of a termination pursuant to Section 10.01(b)(iii)) at or prior to the breach giving rise to Parent’s right to terminate under Section 10.01(c)(ii) (in the case of a termination pursuant to Section 10.01(c)(ii)), an Acquisition Proposal shall have been publicly announced or otherwise communicated to the Board of Directors of the Company or its stockholders and shall not have been withdrawn prior to such termination (in the case of a termination pursuant to Section 10.01(b)(i)), prior to the Company Stockholder Meeting (in the case of a termination pursuant to Section 10.01(b)(iii)) or prior to the breach giving rise to Parent’s right to terminate under Section 10.01(c)(ii) (in the case of a termination pursuant to Section 10.01(c)(ii)) and (C) within 12 months following the date of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter have entered into a definitive agreement with respect an Acquisition Proposal or recommended to any Company its stockholders an Acquisition Proposal or any Company an Acquisition Proposal shall have been consummated (provided that for purposes of this clause (C), each reference to “10%” in the definition of Acquisition Proposal shall be consummated, then, in the case of (1deemed to be a reference to “50%”), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection immediately available funds, concurrently with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment occurrence of the fees applicable event described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions clause (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the CompanyC), directly or indirectly, of beneficial ownership or a right the Termination Fee. In no event shall Parent be entitled to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of receive the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Equinix Inc), Merger Agreement (Switch & Data Facilities Company, Inc.)
Termination Fee. (i) In the event that (1) If Parent shall terminate terminates this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y8.1(a)(ii), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in then the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount promptly, but in no event later than two (2) business days after the date of such termination, a termination fee of US $61.0 million in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "“Termination Fee"”).
(ii) In If the event that Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"8.1(a)(iii), prior to and if, within nine (9) months as a condition to the effectiveness of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.termination, the Company shall pay to Parent its costs and expenses the Termination Fee.
(including attorneys' fees and expensesiii) in connection with such suit, together with interest on If (A) Parent or the amounts set forth in Company shall have terminated this Agreement pursuant to Section 8.3.B. at the prime rate of interest 8.1(a)(i)(2) as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment a result of the fees described in failure to satisfy the Minimum Condition, and (B) following the execution and delivery of this Section 8.3.B. shall Agreement and prior to the termination of this Agreement an Acquisition Proposal (whether or not be in lieu of damages incurred in a continuation or renewal of, or otherwise relating to, an Acquisition Proposal that was publicly announced or became publicly known prior to the event of breach execution and delivery of this Agreement. For ) shall have been publicly announced or shall have become publicly known and not publicly withdrawn, and (C) concurrently with, or within twelve (12) months following such termination, a Third Party Acquisition Event occurs, then, the purposes Company shall pay to Parent promptly, but in no event later than the date of consummation of such Third Party Acquisition Event, the Termination Fee.
(iv) If (A) Parent shall have terminated this Agreement pursuant to Section 8.1(a)(i)(1) as a result of a breach of a covenant or agreement of the Company under this Agreement or an intentional breach of a representation or warranty of the Company under this Agreement, and (B) following the execution and delivery of this Agreement and prior to the breach forming the basis for such termination, an Acquisition Proposal (whether or not a continuation or renewal of, or otherwise relating to, an Acquisition Proposal that was known to the Company prior to the execution and delivery of this Agreement) is known to the Company, "and (C) concurrently with, or within twelve (12) months following such termination, a Third Party Acquisition Event occurs, then, the Company Acquisition" shall mean any of the following transactions (other pay to Parent promptly, but in no event later than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders date of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity consummation of such transaction; (ii) a sale or other disposition by Third Party Acquisition Event, the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Redback Networks Inc), Agreement and Plan of Merger (Ericsson Lm Telephone Co)
Termination Fee. (i) In the event that (1a) Parent shall terminate or Purchaser terminates this Agreement pursuant to Section 8.1.G. 8.1(f)(i) (other than as a result of a Change of Recommendation related to an Intervening Event), (b) the Company terminates this Agreement pursuant to Section 8.1(e)(i) or (2c) (i) this Agreement shall be is terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x8.1(d) or (ySection 8.1(f)(ii), (aii) at any Person shall have publicly disclosed or shall have made known to the Company’s Board of Directors a bona fide Acquisition Proposal after the date hereof and prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (biii) within nine twelve (912) months after of such termination, termination the Company shall enter have entered into a definitive agreement with respect to any Company an Acquisition Proposal or any Company consummated an Acquisition Proposal (provided that for purposes of this clause (iii) the references to “20%” in the definition of “Acquisition Proposal” shall be consummateddeemed to be references to “50%”), thenthen in each case, the Company shall pay, or cause to be paid, to Parent, concurrently with the time of termination in the case of (1a termination pursuant to Section 8.1(e)(i), as promptly after such termination, or as is reasonably practicable (but in no event later than two (2) Business Days) in the case of (2), a termination pursuant to Section 8.1(f)(i) or concurrently with the execution consummation of a definitive agreement with respect tothe Acquisition Proposal referred to in subclause (c)(iii) of this Section 8.3, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash (the “Termination Fee”) equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) 20,819,000. In the event that Parent shall terminate this Agreement is terminated by (i) Parent or Purchaser pursuant to Section 8.1.F.8.1(f)(i)(A) as a result of a Change of Recommendation related to an Intervening Event pursuant to Section 6.7(e)(ii) or (ii) the Company or Parent pursuant to Section 8.1(d) and prior to the Stockholders Meeting the Company’s Board of Directors has made a Change of Recommendation related to an Intervening Event pursuant to Section 6.7(e)(ii), then the Company shall pay, or cause to be paid, to Parent as promptly reimburse Parent for Parent's costs as is reasonably practicable (but in no event later than two (2) Business Days) an amount (the “Intervening Event Termination Fee”) equal to $32,030,000. Except with respect to any fraud or willful and expenses in connection with material breach of this Agreement and by the transactions contemplated hereby ("Company, Parent's Expenses")’s receipt of full payment of the Termination Fee or Intervening Event Termination Fee pursuant to this Section 8.3 shall be the exclusive remedy of Parent or Purchaser against the Company or any of its stockholders, and ifpartners, within nine (9) months members, affiliates, directors, officers or agents for any loss suffered as a result of such breach of this Agreement by the Company or the failure of the Merger to be consummated upon termination of this Agreement; provided, Company however, that nothing in this Section 8.3 shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with limit the execution rights of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company and Purchaser under Section 9.11. Each party hereto acknowledges that the agreements contained in this Section 8.3.B. 8.3 and in Section 8.4 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent the other parties hereto would not enter into this Agreement; Agreement; accordingly, if the Company a party fails promptly to pay in a timely manner the any amounts due pursuant to this Section 8.3.B. 8.3 or 8.4, and, in order to obtain such payment, Parent makes the other party commences a claim suit that results in a judgment against the Company such party for the amounts set forth in this Section 8.3.B.8.3 or 8.4, the Company as applicable, such party shall pay to Parent other party its costs and expenses (including reasonable attorneys' ’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in this due pursuant to the applicable provisions of Section 8.3.B. 8.3 or 8.4, as applicable, from the date such payment was required to be made until the date of payment at the prime lending rate of interest as reported by SunTrust Bank, N.A. published in The Wall Street Journal in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Akorn Inc), Merger Agreement (Hi Tech Pharmacal Co Inc)
Termination Fee. Notwithstanding any provision in this Agreement to the contrary:
(a) If (i) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. or 8.1(g), (2ii) this Agreement shall be is terminated (x) by Parent pursuant to Section 8.1.B. 8.1(h) or (yiii) pursuant to Section 8.1.D. andat any time after the date of this Agreement, (A) a Company Alternative Proposal is publicly proposed or disclosed by the Person or group making such Company Alternative Proposal (or, in the case of either a termination pursuant to Section 8.1(b) or Section 8.1(f), is publicly proposed or disclosed or otherwise communicated to the Board of Directors of the Company) prior to and not irrevocably withdrawn at the time of the Company Meeting or resubmitted within three months after the date of the Company Meeting, and (B) this Agreement is terminated (x) by Parent or the Company pursuant to Section 8.1(b) (ybut only if at such time Parent would not be prohibited from terminating this Agreement by application of the proviso of Section 8.1(b)), (ay) at by Parent or the Company pursuant to Section 8.1(d), or (z) by Parent pursuant to Section 8.1(f), and (C) prior to such terminationthe first anniversary of the termination of this Agreement, there any definitive agreement providing for a Qualifying Transaction shall exist or have been proposed an Acquisition entered into (irrespective of whether such agreement was entered into with the same Person or group who made the Company Alternative Proposal and referred to in clause (bA) within nine (9above), then in any such event described in Section 8.3(a)(i), Section 8.3(a)(ii) months after such terminationor Section 8.3(a)(iii), the Company shall enter into pay to Parent a definitive agreement with respect fee of $18,330,425 (the “Termination Fee”) in cash by wire transfer in immediately available funds, such payment to any Company Acquisition or any Company Acquisition shall be consummated, then, made in the case of (1)) Section 8.3(a)(i) as a condition to the termination of this Agreement, promptly after such termination, or in the case of (2), concurrently with ) Section 8.3(a)(ii) within two Business Days following the termination of this Agreement and (3) Section 8.3(a)(iii) within two Business Days following the execution of a any definitive agreement in respect of a Qualifying Transaction and less any amounts previously paid to Parent by the Company pursuant to Section 8.3(b), if any. It is understood and agreed that in no event shall the Company be required to pay the Termination Fee on more than one occasion. After payment of the Termination Fee is made, the Company shall have no further liability to Parent or Merger Sub with respect to, to this Agreement or the consummation transactions contemplated hereby, including the Merger (provided that nothing herein shall release any party from liability for intentional breach of this Agreement or for fraud or as provided in the Confidentiality Agreement).
(b) If this Agreement is terminated by Parent pursuant to Section 8.1(f) (other than for a termination in respect of the breach of a representation or warranty occurring after (and not as of) the date of this Agreement based on facts, events or circumstances occurring after (and not as applicableof or prior to) the date of this Agreement), such Company Acquisition, the Company shall pay to Parent an amount equal to the sum of the Transaction Expenses actually incurred by Parent at or prior to the termination of this Agreement for which Parent has not theretofore been reimbursed by the Company in cash equal to Two Hundred Fifty Thousand and No/100 Dollars by wire transfer in immediately available funds ($250,000.00) (the "Termination Fee").
(ii) In the event provided that Parent nothing herein shall terminate release any party from liability for intentional breach of this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and or fraud or under the transactions contemplated hereby ("Parent's Expenses"Confidentiality Agreement), such payment to be made following such termination and if, within nine (9) months two Business Days following delivery to the Company of notice of demand for such payment accompanied by reasonable supporting documentation of such termination Transaction Expenses. For purposes of this Agreement, Company shall enter into a definitive agreement with respect “Transaction Expenses” means all reasonable and documented out-of-pocket expenses, fees and costs (including all reasonable and documented out-of-pocket fees and expenses of counsel, accountants, investment bankers, experts and consultants and all filing fees paid to any Company Acquisition Governmental Authority) incurred by Parent or any Company Acquisition involving Company shall be consummated, then concurrently on its behalf in connection with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay related to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, including the Merger, including in connection with Parent’s due diligence investigation and thatthe authorization, without these agreementsnegotiation, Parent would not enter into execution and performance of this AgreementAgreement and the transactions contemplated hereby, including the Merger; accordinglyprovided, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. andhowever, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall not have to pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing Transaction Expenses in excess of fifty percent (50%) of $2.0 million in the aggregate fair market value of (the Company's business immediately prior “Transaction Expense Cap”) (which Transaction Expense Cap shall be increased if Parent receives a Request for Additional Information pursuant to such sale or the HSR Act (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company“Second Request”), directly or indirectlybut only to the extent Parent incurs additional Transaction Expenses from and after the date of such Second Request; provided, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of however, that the voting power of the then outstanding shares of capital stock of the CompanyTransaction Expense Cap shall not exceed $5.0 million).
Appears in 2 contracts
Sources: Merger Agreement (FGX International Holdings LTD), Merger Agreement (Essilor International /Fi)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement is terminated by Parent pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y8.1(c)(ii), the Company shall pay or cause to be paid to or as directed by Parent a fee equal to 3.75% of the aggregate equity value of the Transaction as of the date hereof (a) at the “Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), substantially concurrently with the execution termination of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")this Agreement.
(ii) In the event that Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.F.8.1(d)(ii), then the Company shall promptly reimburse pay or cause to be paid to or as directed by Parent for the Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent's costs , prior to or substantially concurrent with the termination of this Agreement.
(iii) In the event that (A) (x) this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(b)(iii), (y) this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(a), Section 8.1(b)(i) or Section 8.1(b)(ii) without the Company Shareholder Approval having been obtained (and expenses all other conditions set forth in connection with Section 7.2 and Section 7.3 have been satisfied or were capable of being satisfied prior to such termination) or (z) this Agreement is terminated by Parent pursuant to Section 8.1(c)(i) as a result of the Company’s fraud or willful and material breach of any provision of this Agreement and without the transactions contemplated hereby Company Shareholder Approval having been obtained ("Parent's Expenses"and all other conditions set forth in Section 7.2 have been satisfied or were capable of being satisfied prior to such termination), and if, (B) an Acquisition Proposal shall have been made known to senior management of the Company or shall have been publicly announced or shall have become publicly known and shall not have been publicly withdrawn by a date that is at least fifteen (15) Business Days prior to the Company Shareholder Meeting and (C) within nine twelve (912) months of such the termination of this Agreement, the Company shall enter enters into a definitive agreement or consummates a transaction with respect to any Company an Acquisition Proposal (whether or any Company not the same Acquisition involving Company shall be consummatedProposal as that referred to in clause (B) hereof), then concurrently with the execution Company shall, on the earlier of a the date it enters into such definitive agreement with respect toand the date of consummation of such transaction, pay or the consummation of, cause to be paid to or as applicable, such Company Acquisition, then Company shall pay to directed by Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges ; provided, that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this AgreementSection 8.3(d)(iii), "Company Acquisition" all references in the definition of Acquisition Proposal to “25%” shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant instead refer to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (“50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company”.
Appears in 2 contracts
Sources: Merger Agreement (Numerex Corp /Pa/), Merger Agreement (Sierra Wireless Inc)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. 8.1(d)(ii), then, prior to or concurrently with, and as a condition to the termination of this Agreement, the Company shall pay or cause to be paid to Parent (or its designees) an amount in cash equal to $113,000,000 (the “Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by Parent.
(b) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii) or Section 8.1(c)(iii), then the Company shall promptly, but in no event later than two (2) Business Days after the date of such termination, pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(c) In the event that this Agreement shall be terminated is terminated:
(xi) by Parent or the Company pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x8.1(b)(i) or (y), (aSection 8.1(c)(i) at and an Acquisition Proposal was publicly proposed or announced by any Person after the date of this Agreement and prior to such termination, there shall exist ; or
(ii) by Parent or have been proposed the Company pursuant to Section 8.1(b)(iii) and an Acquisition Proposal was publicly proposed or announced by any Person after the date of this Agreement and (b) within nine (9) months after prior to such termination; and
(iii) in any such event, (A) the Company shall enter enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly Proposal within 12 months after such termination, or in the case termination of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then or (B) the Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and consummates any Acquisition Proposal within 12 months after the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter then, on the date of entering into a such definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with (in the execution case of a definitive agreement with respect toClause (A)), or consummating such Acquisition Proposal (in the consummation ofcase of Clause (B)), as applicable, such Company Acquisition, then the Company shall pay or cause to be paid to Parent an amount in cash equal to the amount by which (or its designees) the Termination Fee exceeds by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(c), each reference to “20%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%.”
(d) The parties agree and understand that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement, if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided, however, that the foregoing shall not relieve the Company from liability to Parent for any Willful and Material Breach of this Agreement by the Company. In addition, notwithstanding anything to the contrary in this Agreement, if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent receives the Termination Fee under this Section 8.3, the amount of Parent's Expenses previously reimbursed such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company pursuant hereto.
(iii) to Parent or Merger Sub in respect of any such breaches of this Agreement. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, Parent the parties would not enter into this Agreement; accordingly, if and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay in a timely manner the amounts when due any amount payable pursuant to this Section 8.3.B. and8.3, in order to obtain such payment, Parent makes a claim that results in a judgment against then (i) the Company will reimburse Parent for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its all reasonable costs and expenses (including attorneys' reasonable legal fees and expenses) incurred in connection with any action taken to collect such suitpayment and in connection with the enforcement by Parent of its rights under Section 8.3, together with and (ii) the Company will pay to Parent interest on the amounts set forth overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in this Section 8.3.B. full) at a rate per annum equal to the “prime rate of interest rate” (as reported by SunTrust Bank, N.A. published in The Wall Street Journal) in effect on the date such payment overdue amount was originally required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypaid.
Appears in 2 contracts
Sources: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate after the date of this Agreement a bona fide Acquisition Proposal shall have been made known to the Company Board or shall have been made directly to the Company Shareholders generally or any person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to the Company and (i) (A) thereafter this Agreement is terminated by either Party pursuant to Section 8.1.G. 10.1(b) without the requisite vote of the Company Shareholders having been obtained or (2B) thereafter this Agreement shall be is terminated (x) by Buyer pursuant to Section 8.1.B. 10.1(b) or (y) pursuant to Section 8.1.D. 10.1(d), and, in the case of either (x) or (y)case, (aii) at or prior to the date that is twelve (12) months after the date of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement or consummates a transaction with respect to any an Acquisition Proposal (whether or not the same Acquisition Proposal as that referred to above), then the Company Acquisition or any Company Acquisition shall be consummatedshall, thenon the date of consummation of such transaction pay Buyer, by wire transfer of same day funds, a fee equal to $17,000,000 (the “Termination Fee”); provided, that for purposes of this Section 11.2, all references in the case definition of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company Acquisition Proposal to “25%” shall pay instead refer to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")“50%”.
(iib) In the event that Parent shall terminate this Agreement is terminated by Buyer pursuant to Section 8.1.F.10.1(e), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay Buyer, by wire transfer of same day funds, the Termination Fee as promptly as reasonably practicable after the date of termination (and in any event, within three (3) business days thereafter).
(c) Notwithstanding anything to Parent an the contrary herein, but without limiting the right of either Party to recover liabilities or damages arising out of the other Party’s willful and material breach of any provision of the Agreement, the maximum aggregate amount of fees, expenses or other amounts payable by the Company in cash respect of any failure to consummate the Merger shall be equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoFee.
(iiid) The Each of Buyer and the Company acknowledges that the agreements contained in this Section 8.3.B. 11.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent the other Party would not enter into this Agreement; accordingly, if . If the Company fails to pay in a timely manner the amounts due payable pursuant to this Section 8.3.B. and11.2, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., then the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on such overdue amounts (for the amounts set forth period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in this Section 8.3.B. full) at a rate per annum equal to the “prime rate of interest rate” (as reported announced by SunTrust Bank, N.A. JPMorgan Chase & Co. or any successor thereto) in effect on the date on which such payment was required to be made. Payment made for the period commencing as of the fees described in this Section 8.3.B. shall not date that such overdue amount was originally required to be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypaid.
Appears in 2 contracts
Sources: Merger Agreement (Associated Banc-Corp), Merger Agreement (Bank Mutual Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement is terminated by Parent pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to 9.3(a), Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x9.3(b) or (ySection 9.3(c), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash a termination fee equal to Two Hundred Fifty Thousand and No/100 Dollars the sum of (i) either (A) $250,000.00271,204, in the event the Price Reduction Trigger has not occurred prior to the time at which the Termination Fee becomes due hereunder, or (B) $250,458, in the event the Price Reduction Trigger has occurred prior to the time at which the Termination Fee becomes due hereunder, plus (ii) all of Parent’s documented, out-of-pocket expenses (collectively, the "“Termination Fee")”) by wire transfer of same day funds within one (1) Business Day following the date of such termination of this Agreement, to the account designated by Parent.
(b) If (i) after the Agreement Date and prior to the date of the termination of this Agreement contemplated by clause (ii) In below, an Acquisition Proposal shall have become publicly known or otherwise communicated to the event that Parent shall terminate Company Stockholders and not withdrawn, (ii) thereafter, this Agreement is terminated by Parent pursuant to Section 8.1.F.9.1(b)(i), then Company shall promptly reimburse unless the failure to effect the Merger Closing prior to the End Date is primarily due to a breach by Parent for Parent's costs and expenses of any of its representations, warranties, covenants or agreements set forth in connection with this Agreement and or any of the transactions contemplated hereby ("Parent's Expenses")other Deal Agreements, and if, (iii) within nine six (96) months of such termination of this Agreement, the Company shall enter enters into a definitive agreement with respect to providing for any Company Acquisition transaction contemplated by, or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of otherwise consummates a definitive agreement transaction with respect to, or the consummation ofany Acquisition Proposal referred to in clause (i) above, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. andthen, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.case, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest the Termination Fee by wire transfer of same day funds on the amounts date such transaction is consummated, to the account designated by Parent (provided that for purposes of this Section 9.5(b) the references to “15%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”).
(c) In the event this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b)(i) and, prior to such termination, both (x) the Minimum Tender Condition shall not have been satisfied, and (y) holders of a majority of the Company Common Stock shall not have approved the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting, in each case, unless the failure to close by the End Date is primarily due to a breach by Parent of any of its representations, warranties, covenants or agreements set forth in this Section 8.3.B. at Agreement or any of the prime rate other Deal Agreements, then the Company shall pay to Parent the Termination Fee by wire transfer of interest as reported by SunTrust Bank, N.A. in effect on same day funds within one (1) Business Day following the date of such payment was required termination of this Agreement to the account designated by Parent.
(d) For the avoidance of doubt, in no event shall the Company be obligated to pay, or cause to be made. Payment paid, the Termination Fee on more than one occasion.
(e) Except as explicitly set forth in any other Deal Agreements, Parent’s right to receive payment of the fees Termination Fee pursuant to Section 9.5(a), Section 9.5(b), or Section 9.5(c) shall be the sole and exclusive remedy of Parent and its Affiliates against the Company or any of its former, current or future directors, officers, employees, agents, equityholders, representatives, Affiliates or assignees (collectively, “Company Related Persons”) or any other Person in connection with the termination of this Agreement in the circumstance described in this Section 8.3.B. 9.5 and upon payment or tender of such amount, none of the Company, any of its Company Related Persons, nor any other Person shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes have any further liability or obligation relating to or arising out of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than Deal Agreements or the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution hereby or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companythereby.
Appears in 2 contracts
Sources: Merger Agreement (Everest Merger Sub, Inc.), Merger Agreement (Sport Chalet Inc)
Termination Fee. (a) If, but only if, the Agreement is terminated by: (i) In (x) either Parent or the event that (1) Parent shall terminate this Agreement Company pursuant to Section 8.1.G. 7.1(b)(i) or (2Section 7.1(b)(iii) this Agreement shall be terminated (x) or by Parent pursuant to Section 8.1.B. or 7.1(d)(i), and (y) (A) the Company receives or has received a Competing Proposal from a Third Party after the date hereof which Competing Proposal is publicly disclosed or any Third Party shall have publicly announced an intention to make a Competing Proposal or a Competing Proposal shall have otherwise become known to the Company or the Company Board, and in each case such Competing Proposal was not publicly withdrawn at least five (5) Business Days prior to the Termination Date, in respect of a termination pursuant to Section 8.1.D. and, in the case of either (x7.1(b)(i) or (ySection 7.1(b)(iii), respectively, or at least five (a5) at or Business Days prior to such termination, there shall exist or have been proposed an Acquisition Proposal the date of termination of the Agreement in respect of a termination pursuant to Section 7.1(d)(i) and (bB) within nine twelve (912) months after such terminationof the termination of this Agreement, the Company shall enter or its subsidiaries or Affiliated Entities enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation ofconsummates, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses a transaction in connection with this Agreement and a Competing Proposal (regardless of whether such Competing Proposal is the transactions contemplated hereby same one referred to in clause ("Parent's Expenses"A) above), then the Company shall pay, or cause to be paid, to Parent (or such person who may be designated by Parent) an amount equal to $47,000,000 (the “Termination Fee”) not later than the second (2nd) Business Day following the earlier to occur of the entry into a definitive agreement concerning a Competing Proposal or the date of the consummation of a transaction arising from such Competing Proposal; provided, however, that for purposes of this Section 7.3(a)(i), the references to “fifteen percent (15%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)” and a Competing Proposal shall not be deemed to have been “publicly withdrawn” by any Third Party if, within nine (9) 12 months of such termination the relevant termination, the Company or any of this Agreement, Company its subsidiaries or Affiliated Entities shall enter have entered into a definitive agreement with respect to any Company Acquisition a Competing Proposal or shall have consummated a Competing Proposal made by or on behalf of such Third Party or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreementits Affiliates; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.or
Appears in 2 contracts
Sources: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. 9.1(c)(ii), the Company shall pay the Company Termination Fee (less the amount of Parent Expenses previously or (2) this Agreement shall be terminated (x) simultaneously paid to Parent pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y9.4(c), (aif any) at or to Parent prior to such termination, there shall exist termination by wire transfer of same day funds to one or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")more accounts designated by Parent.
(ii) In the event that Parent shall terminate this Agreement is terminated by Parent pursuant to Section 8.1.F.9.1(d)(ii), then the Company shall promptly reimburse pay the Company Termination Fee (less the amount of Parent for Expenses previously or simultaneously paid to Parent pursuant to Section 9.4(c), if any) to the Parent promptly, but in any event within five (5) Business Days after the date of such termination, by wire transfer of same day funds to one or more accounts designated by Parent's costs .
(iii) In the event that (A) this Agreement is terminated by either Parent or the Company pursuant to Section 9.1(b)(i) or Section 9.1(b)(ii)(B) or by Parent pursuant to Section 9.1(d)(i) (other than as a result of a breach arising out of facts or circumstances in existence on or prior to the date of this Agreement), (B) at or prior to the time of such termination an Acquisition Proposal or Inquiry shall have been announced, commenced or publicly disclosed or submitted or made known to the Company Board, and expenses in connection with (C) at any time after the execution of this Agreement and prior to the transactions contemplated hereby expiration of the twelfth ("Parent's Expenses"), and if, within nine (912th) months of such month after the termination of this Agreement, the Company consummates any transaction contemplated by an Acquisition Proposal (solely for this use, all references in the definition of Acquisition Proposal to “twenty percent (20%)” shall enter be replaced with “thirty-five percent (35%)”) or enters into a definitive agreement with respect to any Company Alternative Acquisition Agreement or any Company letter of intent, agreement in principle or other similar agreement related to an Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect toProposal, or the consummation ofCompany Board shall have recommended an Acquisition Proposal (solely for this use, as applicable, such all references in the definition of Acquisition Proposal to “twenty percent (20%)” shall be replaced with “thirty-five percent (35%)”) to the Company AcquisitionStockholders, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. andshall, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required transaction or any other alternative transaction is consummated, any such agreement or letter is executed or agreement is entered into, or any such recommendation is made, respectively, whichever is earlier, pay the Company Termination Fee (less the amount of Parent Expenses previously or simultaneously paid to Parent pursuant to Section 9.4(c), if any) to Parent by wire transfer of same day funds to one or more accounts designated by Parent.
(iv) For the avoidance of doubt, in no event shall the Company be obligated to pay, or cause to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreementpaid, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant Termination Fee on more than one occasion. Parent shall have right to which assign the shareholders of right to receive the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests Termination Fee to one or more Persons in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyits sole discretion.
Appears in 2 contracts
Sources: Merger Agreement (Solutia Inc), Merger Agreement (Southwall Technologies Inc /De/)
Termination Fee. (ia) In the event The Parties agree that (1) Parent shall terminate if this Agreement pursuant is terminated by Parent in accordance with Section 7.1(e) or by the Company in accordance with Section 7.1(f), then the Company shall pay (or cause to Section 8.1.G. be paid) to Parent (or (2its designee) this Agreement shall be terminated (x) pursuant prior to Section 8.1.B. or (y) pursuant to Section 8.1.D. andconcurrently with such termination, in the case of either a termination by the Company, or within two (x2) Business Days thereafter, in the case of a termination by Parent, a termination fee equal to $11,600,000 (the “Company Termination Fee”).
(b) The Parties agree that (i) if this Agreement is terminated in accordance with Section 7.1(b), Section 7.1(d) or (y)Section 7.1(j) and, (a) at or prior to the date of such termination, there shall exist or have been proposed an a Company Acquisition Proposal is (A) made to the Company, the Company Board or any committee thereof (or in the case of termination pursuant to Section 7.1(d), made public by the Company or any other Person) and (bB) not withdrawn (publicly in the case of termination pursuant to Section 7.1(d)), and (ii) within nine twelve (912) months after such termination, termination (A) the Company shall enter enters into a definitive agreement with respect to any Company Acquisition Proposal or (B) any Company Acquisition Proposal is consummated, then the Company shall pay (or cause to be paid) the Company Termination Fee to Parent (or its designee), prior to or concurrently therewith. For purposes of this Section 7.3(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, except that the references to “20% or more” shall be consummateddeemed to be references to “more than 50%.”
(c) The Parties agree that if this Agreement is terminated by the Company in accordance with Section 7.1(i) or by Parent in accordance with Section 7.1(g), thenthen Parent shall pay (or cause to be paid) to the Company (or its designee) prior to or concurrently with such termination, in the case of a termination by Parent, or within two (12) Business Days thereafter, in the case of a termination by the Company, a termination fee equal to $11,600,000 (the “Parent Termination Fee”).
(d) The Parties agree that (i) if this Agreement is terminated in accordance with Section 7.1(b), promptly after Section 7.1(h) or Section 7.1(k) and, prior to the date of such termination, a Parent Acquisition Proposal is (A) made to Parent, the Parent Board or any committee thereof (or in the case of (2termination pursuant to Section 7.1(h), concurrently with made public by Parent or any other Person) and (B) not withdrawn (publicly in the execution case of a definitive agreement with respect totermination pursuant to Section 7.1(h)), or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby within twelve ("Parent's Expenses"), and if, within nine (912) months of after such termination of this Agreement, Company shall enter (A) Parent enters into a definitive agreement with respect to any Company Parent Acquisition Proposal or (B) any Company Parent Acquisition involving Company shall be Proposal is consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company Parent shall pay (or cause to be paid) the Parent an amount in cash equal Termination Fee to the amount by which Company (or its designee), prior to or concurrently therewith. For purposes of this Section 7.3(d), the Termination Fee exceeds term “Parent Acquisition Proposal” shall have the amount of Parent's Expenses previously reimbursed by Company pursuant heretomeaning assigned to such term in Section 8.4, except that the references to “20% or more” shall be deemed to be references to “more than 50%.”
(iiie) The Company acknowledges Company, Parent, Merger Sub I, and Merger Sub II acknowledge that the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreementsthis Section 7.3, Parent the Company, Parent, Merger Sub I, and Merger Sub II would not enter have entered into this Agreement; accordingly. Accordingly, if the Company or Parent fails to promptly pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.3, the Company or Parent, as applicable, shall pay to Parent its the non-breaching Party all reasonable fees, costs and expenses of enforcement (including reasonable attorneys' ’ fees and expenses) as well as reasonable expenses incurred in connection with any Proceeding initiated by such suitnon-breaching Party), together with interest on the amounts set forth in this Section 8.3.B. amount of the Company Termination Fee or the Parent Termination Fee, as applicable, at the prime lending rate of interest as reported by SunTrust Bankpublished in The Wall Street Journal, N.A. in effect on the date such payment was is made.
(f) For the avoidance of doubt, (i) in no event shall Parent or the Company be required to be made. Payment pay the Parent Termination Fee or Company Termination Fee, as applicable, on more than one (1) occasion, (ii) while Parent, Merger Sub I, and Merger Sub II may pursue, in the alternative and at their sole discretion, both a grant of specific performance in accordance with Section 8.14 and the payment of the fees described Company Termination Fee under Section 7.3, under no circumstances shall Parent, Merger Sub I, and Merger Sub II be permitted or entitled to receive both a grant of specific performance and the Company Termination Fee and (iii) while the Company may pursue, in this the alternative and at its sole discretion, both a grant of specific performance in accordance with Section 8.3.B. 8.14 and the payment of the Parent Termination Fee under Section 7.3, under no circumstances shall not the Company be in lieu permitted or entitled to receive both a grant of damages incurred specific performance and the Parent Termination Fee. The payment by the Company of the Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b), shall be the sole and exclusive remedy of Parent, Merger Sub I, Merger Sub II and their respective affiliates and Representatives in the event of termination of this Agreement under circumstances requiring the payment of a Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b); provided that no such payment shall relieve the Company of any liability or damages to Parent, Merger Sub I, or Merger Sub II resulting from its material breach of this AgreementSection 5.3, Willful Breach or Fraud. For the purposes of this Agreement, "Company Acquisition" shall mean any The payment by Parent of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company Parent Termination Fee pursuant to which Section 7.3(c) or Section 7.3(d), shall be the shareholders sole and exclusive remedy of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests and its affiliates and Representatives in the surviving event of termination of this Agreement under circumstances requiring the payment of a Parent Termination Fee pursuant to Section 7.3(c) or resulting entity Section 7.3(d); provided that no such payment shall relieve Parent, Merger Sub I, or Merger Sub II of such transaction; (ii) a sale any liability or other disposition by damages to the Company resulting from its material breach of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale Section 5.4, Willful Breach or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyFraud.
Appears in 2 contracts
Sources: Merger Agreement (Marine Products Corp), Merger Agreement (MasterCraft Boat Holdings, Inc.)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect If this Agreement is terminated pursuant to any Company Acquisition or any Company Acquisition shall be consummatedof the following provisions, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash a fee equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) 200,000,000 (the "Termination Fee")., which Termination Fee shall be Parent's sole remedy in respect of termination of this Agreement except in the case of any willful breach of this Agreement by the Company:
(i) Sections 8.1(c)(ii) or (iii);
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby 8.1(d)(ii);
("Parent's Expenses"iii) Section 8.1(b)(iii), and if, within nine provided that (9A) months of such termination after the date of this Agreement, any Person makes a Takeover Proposal or amends or reasserts a Takeover Proposal made prior to the date of this Agreement and such Takeover Proposal becomes publicly known prior to the Company Stockholders Meeting (and such Takeover Proposal shall enter not have been withdrawn at the time of the Company Stockholders Meeting), and (B) within twelve months after the date of such termination, the Company enters into a definitive agreement with respect to any Company Acquisition consummate, or any Company Acquisition involving Company consummates, the transactions contemplated by a Takeover Proposal; and provided, further, that, solely for purposes of this Section 8.3(a)(iii), the term "Takeover Proposal" shall have the meaning ascribed thereto in Section 6.5(e), except that all references to 15% shall be consummatedchanged to 40%; or
(iv) Section 8.1(c)(i), then concurrently with the execution provided, that such termination is based on a material breach of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoSection 6.2.
(iiib) If the Company is required to pay Parent a Termination Fee, such Termination Fee shall be payable immediately prior to termination of this Agreement in the event of termination by the Company, and not later than one Business Day after the receipt by the Company of a notice of termination from Parent in the event of termination by Parent, in each case by wire transfer of immediately available funds to an account designated by Parent (except that, in the case of termination pursuant to Section 8.1(b)(iii), such payment shall be made on the date of the first to occur of the events referred to in clause (B) of Section 8.3(a)(iii)).
(c) The Company acknowledges parties each agree that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions transaction contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay in a timely manner the any amounts due pursuant to under this Section 8.3.B. 8.3 and, in order to obtain such payment, Parent makes commences a claim suit that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.such amounts, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on such amounts from the date payment of such amounts set forth in this Section 8.3.B. were due to the date of actual payment at the prime rate of interest as reported by SunTrust BankCitibank, N.A. in effect on the date such payment was required to be made. Payment due, together with the costs and expenses of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group Parent (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing reasonable legal fees and expenses) in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyconnection with such suit.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Verizon Communications Inc), Merger Agreement (Mci Inc)
Termination Fee. (ia) In the event that this Agreement is terminated:
(1) (A) by (1) Parent shall terminate this Agreement or the Company pursuant to Section 8.1.G. 7.1(b)(iii) or Section 7.1(b)(i) (in the case of Section 7.1(b)(i), only if at such time the Company has failed to hold the Company Stockholders Meeting and Parent is not in breach of its obligations under Section 5.4) or (2) this Agreement shall be terminated (x) Parent pursuant to Section 8.1.B. or 7.1(c)(i), (yB) pursuant a bona fide Takeover Proposal (excluding the Takeover Proposal by Valeant that was publicly announced on March 29, 2011, but including any revised Takeover Proposal at a higher price from Valeant after the date hereof) shall have been publicly disclosed after the date hereof and not clearly withdrawn in good faith prior to Section 8.1.D. and, the Company Stockholders Meeting (in the case of either (x) or (ytermination pursuant to Section 7.1(b)(iii)), prior to the termination date (ain the case of termination pursuant to Section 7.1(b)(i)) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal the breach giving rise to the right of termination (in the case of termination pursuant to Section 7.1(c)(i)) and (bC) within nine (9) 12 months after such terminationof the date this Agreement is terminated, the Company shall enter or any of its Subsidiaries enters into a definitive agreement with respect to any Company Acquisition Takeover Proposal or consummates the transactions contemplated by any Company Acquisition Takeover Proposal (provided that for purposes of this clause (C), the references to “20%” in the definition of Takeover Proposal shall be consummated, then, in the case of (1deemed to be references to “50%”), promptly after such termination, or in then the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")Fee on the date of entry into such agreement or, if earlier, consummation of such Takeover Proposal.
(ii2) In the event that by Parent shall terminate this Agreement pursuant to Section 8.1.F.7.1(c)(ii), Section 7.1(c)(iii), Section 7.1(c)(iv) or Section 7.1(c)(v), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds within two (2) Business Days of such termination.
(3) by the Company pursuant to Section 7.1(d)(ii), then the Company shall pay to Parent the Termination Fee prior to or concurrently with such termination.
(b) Notwithstanding the foregoing, in no event shall the Company be required to pay the fee referred to in this Section 7.3(a) on more than one occasion. Notwithstanding anything to the contrary in this Agreement, the parties agree that the payment of the Termination Fee shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement and the Transactions in the event any such payment becomes due and payable and is paid, and, upon payment of the Termination Fee, the Company (and the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives) shall have no further liability to Parent and Merger Sub under this Agreement; provided, however, that the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of Section 5.2 or Section 5.3; provided, further, that the aggregate amount of damages determined by a court to be payable by the Company pursuant to the foregoing proviso shall be reduced by the amount of Parent's Expenses previously reimbursed by Company any Termination Fee payable to Parent pursuant heretothis Section 7.3.
(iiic) The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this AgreementAgreement and constitute liquidated damages and not a penalty, and that, without these agreements, Parent the parties would not enter have entered into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due . Any amount that becomes payable pursuant to this Section 8.3.B. and, 7.3(a) shall be paid by wire transfer of immediately available funds to an account designated by Parent in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the writing and shall be reduced by any amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment deducted or withheld therefrom under applicable Law in respect of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTaxes.
Appears in 2 contracts
Sources: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Cephalon Inc)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement is to be terminated by the Company pursuant to Section 8.1.G. 8.1(d), then the Company shall pay to Parent a termination fee of $5.0 million in cash (the “Termination Fee”), which Termination Fee shall be paid concurrently with such termination, payable by wire transfer of same-day funds.
(b) In the event that this Agreement is terminated by Parent either pursuant to (i) Section 8.1(c)(i) based on a willful breach by the Company of its representations, warranties, covenants or agreements set forth in this Agreement or (2ii) Section 8.1(c)(ii), the Company shall pay to Parent the Termination Fee within two business days of such termination, payable by wire transfer of same-day funds; provided, however, that the amount of the Termination Fee due under this Section 8.3(b) shall be reduced by the amount of Expenses (as hereinafter defined), if any, paid to Parent or Merger Sub under Section 8.3(d) of this Agreement.
(c) In the event this Agreement shall be is terminated by (xi) Parent pursuant to Section 8.1.B. 8.1(b)(i) or (yii) Parent or the Company pursuant to Section 8.1.D. 8.1(b)(iii) and, in the case of either (xi) or (yii), (aA) at or after the date of this Agreement but prior to the date of such termination, there termination an Alternative Proposal or a request or communication reasonably likely to lead to an Alternative Proposal shall exist or have been proposed made known to the Company (or any director or officer of the Company) or shall have been made directly to its shareholders generally or any Person shall have publicly announced an Acquisition interest in making or an intention (whether or not conditional) to make an Alternative Proposal and (bB) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement Company Acquisition Agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect toan Alternative Proposal, or the consummation oftransaction contemplated by an Alternative Proposal is consummated, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (within twelve months of the "Termination Fee").
(ii) In the event that Parent shall terminate date this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.is so terminated, the Company shall pay to Parent its costs the Termination Fee concurrently with (and as a condition to) the event under clause (B), payable by wire transfer of same-day funds; provided, however, that the amount of the Termination Fee due under this Section 8.3(c) shall be reduced by the amount of Expenses (as hereinafter defined), if any, paid to Parent or Merger Sub under Section 8.3(d) of this Agreement.
(d) In the event that this Agreement is terminated by Parent pursuant to (i) Section 8.1(b)(i), (ii) Section 8.1(b)(ii) (other than due to a Restraint that was issued in connection with Antitrust Law), (iii) Section 8.1(b)(iii) or (iv) Section 8.1(c)(i), the Company shall pay to Parent all of the Expenses (as hereinafter defined) of Parent and Merger Sub within two business days of such termination, payable by wire transfer of same-day funds. Parent shall not claim a termination and right of payment of the Expenses if it has been paid the Termination Fee. As used herein, “Expenses” shall mean all reasonable out-of-pocket fees and expenses (including attorneys' all fees and expensesexpenses of counsel, accountants, consultants and other experts engaged by Parent or Merger Sub) incurred by Parent or Merger Sub in connection with such suitor related to the authorization, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bankpreparation, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach negotiation, execution and performance of this Agreement. For Agreement and any other matters related to the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyMerger.
Appears in 2 contracts
Sources: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
Termination Fee. (a) The Company shall pay to Parent the amount of $15,000,000 in cash (the “Termination Fee”) in the event that this Agreement is terminated:
(i) In the event that (1) by Parent shall terminate this Agreement pursuant to Section 8.1.G. or 8.1(d)(i);
(2ii) this Agreement shall be terminated (x) (A) by either Parent or the Company pursuant to Section 8.1.B. 8.1(b)(ii) or Section 8.1(b)(iii), or (B) by Parent pursuant to Section 8.1(d)(ii), Section 8.1(d)(iii) or Section 8.1(d)(iv), (y) an Alternative Proposal shall have been made to the Company Board, the Company or any of the Company Subsidiaries or any holders of Shares or any Person shall have publicly announced an intention (whether or not conditional) to make an Alternative Proposal with respect to the Company or any of the Company Subsidiaries after the date of this Agreement but prior to such termination (and such Alternative Proposal or publicly announced intention shall not have been publicly and unconditionally withdrawn (A) with respect to any termination pursuant to Section 8.1.D. and8.1(b)(ii), in at least ten (10) Business Days prior to the case Outside Date, (B) with respect to any termination pursuant to Section 8.1(b)(iii), at least five (5) Business Days prior to the date of either the Stockholders’ Meeting, including any postponement or adjournment thereof and (xC) with respect to any termination pursuant to Section 8.1(d)(ii), Section 8.1(d)(iii) or (ySection 8.1(d)(iv), at least ten (a10) at or Business Days prior to such termination; provided, there however, that no such Alternative Proposal or publicly announced intention shall exist or have been proposed an Acquisition Proposal be deemed to be publicly and unconditionally withdrawn for purposes of this Section 8.3(a)(ii) if, within twelve (b) within nine (912) months after of any such termination, the Company shall enter or any of the Company Subsidiaries enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive binding written agreement with respect to, or shall have consummated, or shall have approved or recommended to the consummation ofholders of Shares, as applicableany Alternative Proposal with any Person (or its Affiliates) that made an Alternative Proposal or publicly announced an intention (whether or not conditional) to make an Alternative Proposal prior to such termination) and (z) within twelve (12) months of any such termination, such (1) the Company Acquisitionor any of the Company Subsidiaries shall have entered into a binding written agreement with respect to, or shall have consummated, or shall have approved or recommended to the holders of Shares, an Alternative Proposal or (2) there shall have been consummated an Alternative Proposal (substituting in each instance “50%” for “20%” in the definition of Alternative Proposal); or
(iii) by the Company shall pay pursuant to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee"Section 8.1(c)(i).
(b) The Company shall pay Parent the Termination Fee, by wire transfer of same day funds, (i) in the case of Section 8.3(a)(i), no later than two (2) Business Days after the date of such termination, (ii) in the case of Section 8.3(a)(ii), on or prior to the first date on which the Company takes any such action referred to in clause (z) of Section 8.3(a)(ii) with respect to an Alternative Proposal and (iii) in the case of Section 8.3(a)(iii), prior to or concurrently with, and as a condition to, such termination. In addition, (x) in the event that Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.F.8.1(c)(i), then by the Company or Parent pursuant to Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(d), the Company shall promptly reimburse (and in any event within two (2) Business Days) after such termination, or (y) in the event that this Agreement was terminated by the Company or Parent for Parent's costs pursuant to Section 8.1(b)(ii) and expenses the Termination Fee becomes payable pursuant to Section 8.3(a)(ii), the Company shall simultaneously with the payment of the Termination Fee, pay Parent all of the documented out-of-pocket expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby up to a maximum amount of $3,000,000, by wire transfer of same day funds ("Parent's Expenses"such amount, the “Expense Payment”). Except to the extent required by applicable Law, and if, within nine (9) months of such termination the Company shall not withhold any withholding taxes from any payment made pursuant to this Section 8.3. Notwithstanding any provision of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal Agreement to the amount by which contrary, Parent and Merger Sub agree that payment of the Termination Fee exceeds and any subsequent obligation of the amount Company to pay the Expense Payment pursuant to this Section 8.3(b), if such payments are payable and actually paid, shall be the sole and exclusive remedy for monetary damages of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) Parent and Merger Sub under this Agreement. Under no circumstances shall the Termination Fee or the Expense Payment be payable more than once. The Company acknowledges that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay in a timely manner the amounts amount due pursuant to this Section 8.3.B. 8.3, and, in order to obtain such payment, Parent makes or Merger Sub commences a claim suit that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.such payment or any portion of such payment, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys' fees and expenses’ fees) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. amount of the payment at the prime rate of interest as reported by SunTrust Bank, Citibank N.A. in effect on the date such payment was required to be made. Payment made through the date of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypayment.
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Graphics Inc /Tx/), Merger Agreement (RR Donnelley & Sons Co)
Termination Fee. (a) If, but only if, the Agreement is terminated:
(i) In by either the event that (1) Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. 8.1(b)(i) or (2Section 8.1(b)(iii) this Agreement shall be terminated (x) or by Parent pursuant to Section 8.1.B. or 8.1(d)(i) and (yA) pursuant to Section 8.1.D. and, in the case of either (x) or (ya termination pursuant to Section 8.1(b)(i), (a) at or the Parent Stockholder Approval shall have been obtained and the Company Stockholder Approval shall not have been obtained prior to such termination, there shall exist and (B) the Company (x) receives or have been proposed an has received a Company Acquisition Proposal after the date of this Agreement, which proposal has been publicly announced and (by) within nine twelve (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (912) months of such the termination of this Agreement, Company shall enter into consummates a transaction regarding, or executes a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement which is later consummated with respect to, a Company Acquisition Proposal, then the Company shall pay, or cause to be paid, to Parent a fee equal to $175,000,000 (the “Termination Fee”) plus, if not previously paid pursuant to the proviso below, the Expense Amount, by wire transfer of same day funds to an account designated by Parent, not later than the consummation of, as applicable, of such transaction arising from such Company AcquisitionAcquisition Proposal; provided, then however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Company Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”; and provided, further, that in the event that the Agreement is terminated by either the Company or Parent pursuant to Section 8.1(b)(iii), the Company shall pay pay, or cause to be paid, to Parent the Expense Amount (by wire transfer to an amount in cash equal to the amount account designated by which Parent) within two (2) Business Days of such termination rather than when the Termination Fee exceeds becomes payable to Parent (if ever); or
(ii) by either the amount of Parent's Expenses previously reimbursed Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iv) or by the Company pursuant hereto.to Section 8.1(c) and (A) in the case of a termination pursuant to Section 8.1(b)(i), the Company Stockholder Approval shall have been obtained and the Parent Stockholder Approval shall not have been obtained prior to such termination, and (B) Parent (x) receives or has received a bona fide Parent Acquisition Proposal, which proposal has been publicly announced and (y) within twelve (12) months of the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, a Parent Acquisition Proposal, then Parent shall pay, or cause to be paid, to the Company the Termination Fee plus, if not previously paid pursuant to the proviso below, the Expense Amount, by wire transfer of same day funds to an account designated by the Company, not later than the consummation of such transaction arising from such Parent Acquisition Proposal; provided, however, that in the event that the Agreement is terminated by either the Company or Parent pursuant to Section 8.1(b)(iv), Parent shall pay, or cause to be paid, to the Company the Expense Amount (by wire transfer to an account designated by the Company) within two (2) Business Days of such termination rather than when the Termination Fee becomes payable to the Company (if ever); or
(iii) The by Parent pursuant to Section 8.1(d)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent, within two (2) Business Days of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that:
(i) under no circumstances shall the Company or Parent be required to pay the Termination Fee earlier than one (1) full Business Day after receipt of appropriate wire transfer instructions from the party entitled to payment; and
(ii) under no circumstances shall the Company or Parent be required to pay the Termination Fee on more than one occasion.
(c) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable for the efforts and thatresources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.3 and, in order to obtain such payment, Parent makes either the Company or Parent, as the case may be, commences a claim suit that results in a judgment against the Company other party for the amounts payment of any amount set forth in this Section 8.3.B.8.3, the Company such paying party shall pay to Parent the other party its costs and expenses (including attorneys' fees and expenses) Expenses in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime annual rate of interest as reported by SunTrust Bank, N.A. in effect on ten percent (10%) for the period from the date such payment was required to be mademade through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(i) If one party to this Agreement (the “Termination Fee Payor”) is required to pay another party to this Agreement (the “Termination Fee Payee”) a Termination Payment, such Termination Payment shall be paid into escrow on the date such payment is required to be paid by the Termination Fee Payor pursuant to this Agreement by wire transfer of immediately available funds to an escrow account designated in accordance with this Section 8.3(d). In the event that the Termination Fee Payor is obligated to pay the Termination Fee Payee the Termination Payment, the amount payable to the Termination Fee Payee in any tax year of the Termination Fee Payee shall not exceed the lesser of (i) the Termination Payment of the fees Termination Fee Payee, and (ii) the sum of (A) the maximum amount that can be paid to the Termination Fee Payee without causing the Termination Fee Payee to fail to meet the requirements of Section 856(c)(2) and (3) of the Code for the relevant tax year, determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Termination Fee Payee’s independent accountants, plus (B) in the event the Termination Fee Payee receives either (x) a letter from the Termination Fee Payee’s counsel indicating that the Termination Fee Payee has received a ruling from the IRS as described below in this Section 8.3(d) or (y) an opinion from the Termination Fee Payee’s outside counsel as described below in this Section 8.3(d), an amount equal to the excess of the Termination Payment less the amount payable under clause (A) above.
(ii) To secure the Termination Fee Payor’s obligation to pay these amounts, the Termination Fee Payor shall deposit into escrow an amount in cash equal to the Termination Payment with an escrow agent selected by the Termination Fee Payor on such terms (subject to this Section 8.3(d)) as shall be mutually agreed upon by the Termination Fee Payor, the Termination Fee Payee and the escrow agent. The payment or deposit into escrow of the Termination Payment pursuant to this Section 8.3(d) shall be made at the time the Termination Fee Payor is obligated to pay the Termination Fee Payee such amount pursuant to Section 8.3 by wire transfer. The escrow agreement shall provide that the Termination Payment in escrow or any portion thereof shall not be released to the Termination Fee Payee unless the escrow agent receives any one or combination of the following: (i) a letter from the Termination Fee Payee’s independent accountants indicating the maximum amount that can be paid by the escrow agent to the Termination Fee Payee without causing the Termination Fee Payee to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, in which case the escrow agent shall release such amount to the Termination Fee Payee, or (ii) a letter from the Termination Fee Payee’s counsel indicating that (A) the Termination Fee Payee received a ruling from the IRS holding that the receipt by the Termination Fee Payee of the Termination Payment would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code or (B) the Termination Fee Payee’s outside counsel has rendered a legal opinion to the effect that the receipt by the Termination Fee Payee of the Termination Payment would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release the remainder of the Termination Payment to the Termination Fee Payee. The Termination Fee Payor agrees to amend this Section 8.3(d) at the reasonable request of the Termination Fee Payee in order to (i) maximize the portion of the Termination Payment that may be distributed to the Termination Fee Payee hereunder without causing the Termination Fee Payee to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve the Termination Fee Payee’s chances of securing a favorable ruling described in this Section 8.3.B. 8.3(d) or (iii) assist the Termination Fee Payee in obtaining a favorable legal opinion from its outside counsel as described in this Section 8.3(d). Any amount of the Termination Payment that remains unpaid as of the end of a taxable year shall not be in lieu paid as soon as possible during the following taxable year, subject to the foregoing limitations of damages incurred in this Section 8.3(d), provided that the event obligation of breach the Termination Fee Payor to pay the unpaid portion of the Termination Payment shall terminate on the December 31 following the date which is four years from the date of this Agreement. .
(e) For the purposes of this Agreement, ": “Parent Acquisition Proposal” shall have the same meaning as “Company Acquisition" shall mean Acquisition Proposal with the word “Parent” replacing the words “the Company and/or any of the following transactions (other than Company Subsidiaries” mutatis mutandis; provided, however, that for purposes of the transactions contemplated by this Agreement): definition of Parent Acquisition Proposal, (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the reference to “twenty percent (20%)” in the definition of Company pursuant Acquisition Proposal shall be deemed to which the shareholders of the Company immediately preceding such transaction hold less than be reference to “fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; )” and (ii) a sale or other disposition by transactions in which Parent is the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyacquiring party shall not be included.
Appears in 2 contracts
Sources: Merger Agreement (Nationwide Health Properties Inc), Merger Agreement (Ventas Inc)
Termination Fee. (i) In the event that (1) Parent shall terminate If this Agreement is terminated by Parent pursuant to Section 8.1.G. 10.01(c)(i) or (2) this Agreement shall be terminated (x) Section 10.01(c)(ii), or by the Company pursuant to Section 8.1.B. 10.01(d)(i), then the Company shall pay to Parent Holdco in immediately available funds $54,900,000 (the “Termination Fee”) in order to compensate Parent Holdco for the loss of opportunity or (y) pursuant to Section 8.1.D. rights under this Agreement and expenses incurred in furtherance of the transactions contemplated by this Agreement by Parent Holdco after the date hereof. Such payment shall be made, in the case of a termination by Parent, within one Business Day after such termination and, in the case of either a termination by the Company, immediately before and as a condition to such termination (xprovided that Parent has provided wire instructions with respect to such payment and otherwise promptly following receipt of such wire instructions).
(ii) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 10.01(b)(i) or (ySection 10.01(b)(iii), (aB) at or after the date of this Agreement and prior to such termination, there shall exist or have been proposed an Acquisition Proposal shall have been publicly announced and not publicly and unconditionally withdrawn at least five (5) Business Days prior to (x) the date of termination, in the case of a termination pursuant to Section 10.01(b)(i) or (y) the Company Stockholder Meeting, in the case of a termination pursuant to Section 10.01(b)(iii), (C) in the case of a termination pursuant to Section 10.01(b)(i), at the time of such termination the condition set forth in Section 9.01(a) shall not have been satisfied, and (bD) within nine (9) months after following the date of such termination, the Company shall enter have entered into a definitive agreement with respect to any Company or recommended to its stockholders an Acquisition Proposal or any Company an Acquisition Proposal shall have been consummated (provided that for purposes of this clause (ii), each reference to “15%” in the definition of Acquisition Proposal shall be consummated, then, in the case of (1deemed to be a reference to “50%”), promptly after such termination, or in then the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount Holdco in cash equal immediately available funds, concurrently with the occurrence of the applicable event described in clause (D), the Termination Fee in order to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (compensate Parent Holdco for the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with loss of opportunity or rights under this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount expenses incurred in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part furtherance of the transactions contemplated by this Agreement, and that, without these agreements, Agreement by Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on Holdco after the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or hereof.
(iii) For the acquisition by any person avoidance of doubt, in no event shall the Company be obligated to pay, or group cause to be paid, the Termination Fee on more than one (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%1) of the voting power of the then outstanding shares of capital stock of the Companyoccasion.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Termination Fee. (a) If, but only if, this Agreement is terminated:
(i) In by either the event that (1) Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. 8.1(b)(i) or (2Section 8.1(b)(iii) this Agreement shall be terminated or by Parent pursuant to Section 8.1(d)(i) and the Company (x) pursuant to Section 8.1.B. receives or has received a Company Acquisition Proposal after the date of this Agreement, which proposal has been publicly announced (y) pursuant to Section 8.1.D. and, and in the case of either (xa termination pursuant to Section 8.1(b)(iii), such Company Acquisition Proposal shall not have been publicly withdrawn prior to the Company Stockholders Meeting) or and (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine twelve (912) months after such terminationof the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, a Company Acquisition Proposal, then the Company shall enter pay, or cause to be paid, to Parent a fee equal to $38,000,000 (the “Termination Fee”) by wire transfer of same day funds to an account designated by Parent, no later than two (2) Business Days after the earlier of entering into a definitive agreement with respect to any a Company Acquisition or any Proposal and the consummation of such Company Acquisition Proposal; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Company Acquisition Proposal shall be consummated, then, in the case of deemed to be references to “fifty percent (150%), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").”;
(ii) In by either the event that Company or Parent shall terminate this Agreement pursuant to Section 8.1.F.8.1(b)(iii), then the Company shall promptly reimburse pay, or cause to be paid, to Parent for the aggregate amount of all Expenses incurred by Parent's costs , Merger Sub I, Merger Sub II, the Partnership and expenses their respective Affiliates in connection with this Agreement and the transactions contemplated hereby hereby, provided that such amount shall not exceed $3,000,000 ("Parent's Expenses"the “Expense Amount”), and if, by wire transfer of same day funds to an account designated by Parent within nine two (92) months Business Days of such termination termination; or
(iii) by the Company pursuant to Section 8.1(c)(ii) or Parent pursuant to Section 8.1(d)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee by wire transfer of same day funds to an account designated by Parent within two (2) Business Days of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that:
(i) under no circumstance shall the Company shall enter into a definitive agreement with respect be required to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with pay both the execution of a definitive agreement with respect toTermination Fee and the Expense Amount, or be required to pay the consummation ofTermination Fee or the Expense Amount, as applicable, such Company Acquisition, then on more than one occasion; and
(ii) the Company shall not be required to pay to Parent an under any circumstance any amount in cash equal to the amount by which excess of the Termination Fee exceeds or the amount Expense Amount, as applicable, subject to the provisions of Parent's Expenses previously reimbursed by Company pursuant heretoSection 8.2 and Section 8.3(c).
(iiic) The Company Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Payment is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and thatresources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.3 and, in order to obtain such payment, Parent makes commences a claim suit that results in a judgment against the Company for the amounts payment of any amount set forth in this Section 8.3.B.8.3, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) Expenses in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime annual rate of interest as reported by SunTrust Bank, N.A. in effect on five percent (5%) for the period from the date such payment was required to be made. Payment of made through the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in date such payment was actually received, or such lesser rate as is the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions maximum permitted by applicable Law.
(other than the transactions contemplated by this Agreement): d) (i) If the Company is required to pay to Parent a mergerTermination Payment, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving such Termination Payment shall be paid into escrow on the date such payment is required to be paid by the Company pursuant to which this Agreement by wire transfer of immediately available funds to an escrow account designated in accordance with this Section 8.3(d). In the shareholders of event that the Company immediately preceding such transaction hold less than fifty percent is obligated to pay to Parent the Termination Payment, the amount payable to Parent in any tax year of Parent shall not exceed the lesser of (50%i) the Termination Payment and (ii) the sum of (A) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Section 856(c)(2) and (3) of the aggregate equity interests in Code for the surviving or resulting entity relevant tax year, determined as if the payment of such transaction; (iiamount did not constitute income described in Sections 856(c)(2) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%856(c)(3) of the aggregate fair market value Code (“Qualifying Income”) and Parent has $2,000,000 of income from unknown sources during such year which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income) (the “Maximum Amount”), in each case, as determined by Parent’s independent accountants, plus (B) in the event Parent receives either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS as described below in this Section 8.3(d) or (y) an opinion from Parent’s outside counsel as described below in this Section 8.3(d), an amount equal to the excess of the Company's business immediately prior to such sale or Termination Payment less the amount payable under clause (iiiA) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyabove.
Appears in 2 contracts
Sources: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (SmartStop Self Storage, Inc.)
Termination Fee. (i) In the event that (1A) Parent shall terminate or the Company terminates this Agreement pursuant to Section 8.1.G. 8.1(b)(i) or (2Section 8.1(b)(iii) or Parent terminates this Agreement shall be terminated (x) pursuant to Section 8.1.B. or 8.1(c)(iii) and (yB) pursuant to Section 8.1.D. and, in after the case date of either (x) or (y), (a) at or this Agreement and prior to such termination, there a Competing Proposal shall exist or have been proposed an Acquisition Proposal communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within twelve (b) within nine (912) months after of such termination, the Company shall enter enters into a definitive agreement with respect providing for, or recommends to any Company Acquisition its stockholders, a Competing Proposal or any Company Acquisition shall be a Competing Proposal is consummated, then, in the either such case of within three (1), promptly 3) business days after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, of the applicable Competing Proposal the Company shall pay to Parent an amount (or a Parent Subsidiary designated by Parent) a fee of $4,711,000 in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "“Termination Fee"”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.2(h)(i), except that all references to “20%” therein shall be deemed to be “50%” and all references to “80%” therein shall be deemed to be “50%”.
(ii) In If the event that Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"8.1(d)(i), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.termination, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expensesor a Parent Subsidiary designated by Parent) in connection with such suit, together with interest on the amounts set forth in Termination Fee.
(iii) If Parent terminates this Agreement pursuant to Section 8.3.B. at the prime rate of interest as reported 8.1(c)(i) or Section 8.1(c)(ii) (or this Agreement is terminated by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution Parent or similar transaction involving the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii), in each case, following any time at which the shareholders of Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)), within three (3) business day after such termination, the Company immediately shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding such transaction hold less than fifty percent clauses (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; i), (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or indirectlybecome due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, of beneficial ownership or a right in no event shall the Company be obligated to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of pay the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Indivior PLC), Merger Agreement (Indivior PLC)
Termination Fee. (ia) In the event that that:
(1i) Parent shall terminate this Agreement is terminated by the Company or Parent pursuant to Section 8.1.G. 7.01(b)(iii) (failure to receive the Company Stockholder Approval) or Section 7.01(c)(i) (2failure to comply with Company representations and covenants); provided that (A) a Takeover Proposal shall have been publicly made, proposed or communicated by a third party after the date of this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (ya termination pursuant to Section 7.01(c)(i), (amade known to the Company) at or and not withdrawn prior to such terminationthe date of the Company Stockholders’ Meeting or the breach of this Agreement, there shall exist or have been proposed an Acquisition Proposal as applicable, and (bB) within nine twelve (912) months after such terminationthe date this Agreement is terminated, the Company shall enter or any of its Subsidiaries consummates a Takeover Proposal or enters into a definitive agreement with respect to any Company Acquisition a Takeover Proposal (whether or any Company Acquisition not with the Person or Persons that made the Takeover Proposal referred to in clause (A)) and consummates such Takeover Proposal described in this clause (B); provided, however, that, (1) for purposes of clauses (A) and (B) of this Section 7.03(a)(i), the references to “twenty percent (20%)” in the definition of Takeover Proposal shall be consummateddeemed to be references to “fifty percent (50%)”, then(2) with respect to a termination pursuant to Section 7.01(c)(i) (failure to comply with Company representations and covenants), such failure resulted from a Willful Breach by the Company and (3) if the purchase price and implied valuation of the Company provided for in such Takeover Proposal described in this clause (B) is less than that in the case of Takeover Proposal described in clause (1A), promptly after such termination, then no Company Termination Fee shall be payable under this Section 7.03(a)(i) unless the Takeover Proposal in this clause (B) is with one or more of the Persons that made the Takeover Proposal described in the case clause (A) or one or more of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").their Affiliates; or
(ii) In the event that Parent shall terminate this Agreement is terminated (A) by Parent pursuant to Section 8.1.F.7.01(c)(ii) (Adverse Recommendation Change) or (B) by the Company pursuant to Section 7.01(d)(ii) (entry into a Company Acquisition Agreement); then, then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby any such event under clause ("Parent's Expenses"), and if, within nine i) or (9ii) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.03(a), the Company shall pay or cause to be paid the Company Termination Fee to Parent or its costs and expenses designee by wire transfer of same-day funds so long as Parent has provided the Company with wire instructions for such payment (including attorneys' fees and expensesx) in connection the case of Section 7.03(a)(ii)(A), within two (2) Business Days after such termination, (y) in the case of Section 7.03(a)(ii)(B), substantially simultaneously with such suittermination (and in any event, together with interest on not later than the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Banknext Business Day, N.A. in effect on provided that such termination will not be effective until the date of such payment was payment), or (z) in the case of Section 7.03(a)(i), within two (2) Business Days after the consummation of the Takeover Proposal referred to in clause (B) thereof; it being understood that in no event shall the Company be required to pay or cause to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving paid the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less Termination Fee on more than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyone occasion.
Appears in 2 contracts
Sources: Merger Agreement (Western Union CO), Merger Agreement (International Money Express, Inc.)
Termination Fee. (ia) In the event that that:
(1i) Parent (A) an Alternative Proposal shall terminate have been made to the Company on or after the date hereof, or shall have been made directly to its shareholders generally on or after the date hereof, or any person shall have publicly announced on or after the date hereof an intention (whether or not conditional or withdrawn) to make an Alternative Proposal and thereafter, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1.G. 7.1(b)(i) or (2) this Agreement shall be terminated (x) 7.1(b)(iii), or by Parent pursuant to Section 8.1.B. or (y7.1(d)(i) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (bC) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal within twelve (12) months of the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").date this Agreement is terminated;
(ii) In (A) no Alternative Proposal is made to the event that Parent Company after the date hereof, or made directly to its shareholders generally after the date hereof, and no person shall terminate have publicly announced, after the date hereof, an intention (whether or not conditional or withdrawn) to make an Alternative Proposal, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"7.1(b)(i) or 7.1(b)(iii), or by Parent pursuant to 7.1(d)(i) and if, within nine (9C) months of such termination of this Agreement, the Company shall enter enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or consummates, a transaction within twelve (12) months of the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent date this Agreement is terminated with any person who made or whose Affiliate made an amount in cash equal Alternative Proposal prior to the amount by which date hereof to the Termination Fee exceeds Company or directly to its shareholders or who publicly announced prior to the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.date hereof an intention to make an Alternative Proposal;
(iii) The this Agreement is terminated by the Company acknowledges that the agreements contained pursuant to Section 7.1(c)(ii); or
(iv) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or pursuant to Section 7.1(d)(iii); then in any such event under clause (i), (ii), (iii) or (iv) or of this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.2(a), the Company shall pay to Parent its costs and expenses a termination fee of $19,027,627 in cash (including attorneys' fees and expenses) the “Company Termination Fee”), it being understood that in connection with such suit, together with interest on no event shall the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was Company be required to be made. Payment of pay the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in Company Termination Fee on more than one occasion.
(b) In the event of breach of that this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated Agreement is terminated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of Section 7.1(c)(i), 7.1(c)(iii) or 7.1(c)(iv), then Parent shall pay to the Company immediately preceding such transaction hold less than fifty percent a termination fee of $29,900,556 in cash (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company“Parent Termination Fee”), directly or indirectly, of beneficial ownership or a right it being understood that in no event shall the Parent be required to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of pay the voting power of the then outstanding shares of capital stock of the CompanyParent Termination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Termination Fee. (i) In the event that If (1x) Parent shall terminate (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y7.1(b), (aB) at or prior to the time of such termination, there termination a Company Acquisition Proposal shall exist or have been proposed an Acquisition Proposal disclosed, announced, commenced, submitted or made, and (bC) within nine (9) 12 months after such termination, termination the Company shall enter enters into a definitive agreement with respect to any related to, or consummates, a Company Acquisition Transaction with any Person, or any Company Acquisition shall be consummated(y) this Agreement is terminated by Parent pursuant to Section 7.1(d), then, in the case of each of (1x) and (y), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount Parent, in cash equal at the applicable time specified in the next two sentences, a nonrefundable fee in the amount of $2,000,000 (in addition to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee"any payment required to be made pursuant to Section 7.3(a).
(ii) , if any). In the event that Parent shall terminate case of termination of this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"7.1(b), and if, within nine (9) months the fee referred to in the previous sentence shall be paid by the Company upon the execution of such definitive agreement. In the case of termination of this AgreementAgreement by Parent pursuant to Section 7.1(d), Company shall enter into a definitive agreement with respect the fee referred to any Company Acquisition or any Company Acquisition involving Company in the first sentence of this Section 7.3(b)(i) shall be consummated, then concurrently with paid by the execution of a definitive agreement with respect to, or the consummation of, as applicable, Company within two (2) business days after such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretotermination.
(iiiii) The Company acknowledges that the agreements contained in this Section 8.3.B. 7.3(b) are an integral part of the transactions transaction contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.3(b), the Company shall pay to Parent its costs and expenses (including attorneys' fees fee and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. 7.3(b) at the prime rate of interest as reported by SunTrust BankCitibank, N.A. in effect on the date such payment was required to be made. Payment of the fees and expenses described in this Section 8.3.B. 7.3 shall not be in lieu of damages incurred in the event of willful breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Datron Systems Inc/De), Merger Agreement (Titan Corp)
Termination Fee. (i) In the event that (1) Parent shall terminate If this Agreement is terminated pursuant to Section 8.1.G. 7.1(c) or (2) this Agreement shall be terminated (x) 7.1(d), pursuant to Section 8.1.B. 7.1(e) as a result of a willful breach by the Company, or (y) pursuant to Section 8.1.D. and, in the case of either (x7.1(e) or (y7.1(f) as a result of the withdrawal or modification of the Financial Advisor's fairness opinion referred to in Section 3.1(m), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, then the Company shall enter into a definitive agreement (provided that neither Parent nor Sub is then in material breach of its obligations under this Agreement) promptly pay to the Parent in cash an amount equal to the aggregate out-of-pocket costs and reasonable expenses of Parent and Sub in connection with respect this Agreement and the transactions contemplated hereby, up to an aggregate amount not to exceed $750,000, including, without limitation, commitment, appraisal and other fees relating to the Financing and the reasonable fees and disbursements of accountants, attorneys and investment bankers, whether retained by Parent or by any other person (collectively, "Expenses").
(ii) In addition to any Company Acquisition required payment of Expenses, if this Agreement is terminated pursuant to Section 7.1(c) or any Company Acquisition shall be consummated, then, in the case of (17.1(d), promptly after such termination, or in the case of (2), concurrently with the execution pursuant to Section 7.1(e) as a result of a definitive agreement with respect towillful breach by the Company, or then the consummation of, as applicable, such Company Acquisition, Company shall (provided that neither Parent nor Sub is then in material breach of its obligations under this Agreement) promptly pay to Parent an amount the sum of $1,500,000 in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(iiiii) In The sum of the event that Expenses and the Termination Fee, if any, shall be referred to herein as the "Termination Amount." The rights of Parent to receive the Termination Amount shall terminate be in lieu of any damages remedy or claim by Parent or Sub against the Company for termination of this Agreement pursuant to Section 8.1.F.7.1(c) or 7.1(d), then Section 7.1(e) in the event of a willful breach by the Company shall promptly reimburse Parent for Parentor pursuant to Section 7.1(f) as a result of the Company's costs and expenses reliance on the condition set forth in connection with Section 6.3(d).
(iv) Notwithstanding the provisions of Section 7.2(b)(ii) above, if this Agreement is terminated pursuant to Section 7.1(f) as a result of the Company's reliance on the condition set forth in Section 6.3(d) at a time when Parent is ready, willing and able (other than as a result of an inability to consummate the Financing solely because of the withdrawal of the Financial Advisor's fairness opinion referred to in Section 3.1(m)) to proceed with the transactions contemplated hereby ("Parent's Expenses")but for the withdrawal of such fairness opinion, and ifwithin one year after such termination, within nine (9) months of such termination of this Agreement, the Company shall enter enters into an agreement relating to an Acquisition Proposal with a definitive agreement with respect to any Company Acquisition person other than Parent or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect toSub or their Affiliates and Associates, or the consummation of, as applicable, such Company Acquisition, then Company shall pay Company's Board of Directors recommends or resolves to Parent an amount in cash equal recommend to the amount by which Company's stockholders approval and acceptance of such an Acquisition Proposal, then, upon the Termination Fee exceeds entry into such agreement or the amount making of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.recommendation or resolution, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Bertuccis Inc), Merger Agreement (Bertuccis Inc)
Termination Fee. Any provision in this Agreement to the contrary notwithstanding,
(ia) In the event that that:
(i) after the date of this Agreement, (A) any Alternative Proposal (substituting fifty percent (50%) for the fifteen percent (15%) threshold set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”) is publicly proposed or publicly disclosed prior to, and not withdrawn prior to the time of, the Company Meeting, (B) this Agreement is validly terminated by Parent or the Company pursuant to (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. 7.1(d) or (2) this Agreement shall be terminated Section 7.1(b) (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either this clause (B)(2), so long as (x) prior to the time such Alternative Proposal was first publicly proposed or publicly disclosed Parent shall not have delivered a notice to the Company in accordance with Section 7.1(f) or Section 5.11 citing a failure of a condition to the obligation of Parent and Merger Subsidiary to consummate the Merger set forth in Section 6.3(a)(i) and (y), (a) at or prior to the time of such termination, there the condition set forth in Section 6.1(a) shall exist or not have been proposed an Acquisition Proposal satisfied but all other conditions to the obligations of the parties to consummate the Merger set forth in Sections 6.1, 6.2(a) and 6.2(b) have been satisfied) and (bC) concurrently with or within nine twelve (912) months after such termination, the Company shall enter have entered into a definitive agreement with respect to any a Qualifying Transaction or consummated the transactions contemplated by a Qualifying Transaction;
(ii) Parent shall have validly terminated this Agreement pursuant to Section 7.1(g) or 7.1(h); or
(iii) the Company Acquisition or any Company Acquisition shall be consummatedhave validly terminated this Agreement pursuant to Section 7.1(i), then, in any such event, the Company shall pay to Parent (or, at Parent’s direction, an Affiliate of Parent) a fee of twenty-three million eight hundred thousand dollars ($23,800,000) in cash (the “Termination Fee”), by wire transfer of same day funds to one or more accounts designated by Parent, such payment to be made, in the case of a termination referenced in clause (1)i) above, promptly after such terminationupon consummation of the Qualifying Transaction, or in the case of clause (2)ii) above, within three (3) Business Days of such termination or, in the case of clause (iii) above, in advance of or substantially concurrently with the execution termination by the Company pursuant to Section 7.1(i); it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. The foregoing notwithstanding, the “Termination Fee” shall be eleven million nine hundred thousand dollars ($11,900,000) in cash solely in the event that this Agreement is terminated by the Company prior to the thirtieth (30th) day after the Solicitation Period End-Date pursuant to Section 7.1(i) to enter into a Qualifying Transaction with an Excluded Party. Following receipt by Parent of a definitive agreement the Termination Fee in accordance with this Section 7.3, the Company shall have no further liability with respect to, to this Agreement or the consummation of, as applicable, such Company Acquisition, Company shall pay transactions contemplated hereby to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")or Merger Sub.
(b) The parties agree and understand that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion and (ii) In in no event shall Parent be entitled, pursuant to this Section 7.3, to receive an amount greater than the event that Parent shall terminate Termination Fee. Anything to the contrary in this Agreement notwithstanding, except in the case of fraud, (A) if Parent receives the Termination Fee from the Company pursuant to this Section 8.1.F.7.3, then such payment shall be the sole and exclusive remedy of the receiving party against the paying party and its Subsidiaries and their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the paying party, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby and (B) if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement and thereafter Parent receives the Termination Fee pursuant to this Section 7.3, the amount of such Termination Fee shall be reduced by the aggregate amount of such payments made by the party paying the Termination Fee in respect of any such breaches. The parties acknowledge that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated hereby, that, without these agreements, the parties would not enter into this Agreement and that any amounts payable pursuant to this Section 7.3 do not constitute a penalty. Accordingly, if any party fails to promptly reimburse Parent for Parent's pay any amount due pursuant to this Section 7.3, such party shall also pay any costs and expenses (including reasonable legal fees and expenses) incurred by the party entitled to such payment in connection with a legal action to enforce this Agreement that results in a judgment for such amount against the party failing to promptly pay such amount. Any amount not paid when due pursuant to this Section 7.3 shall bear interest from the date such amount is due until the date paid at a rate equal to the prime rate as published in The Wall Street Journal, Eastern Edition in effect on the date of such payment.
(c) If the circumstances described in both Section 7.3(a)(i)(A) and Section 7.3(a)(i)(B) shall have occurred, but the Termination Fee, as of the time Parent requests reimbursement pursuant to this Section 7.3(c), shall not have become payable (as a result of the non-occurrence of events described in 7.3(a)(i)(C)), the Company shall reimburse Parent and its Affiliates (by wire transfer of immediately available funds), no later than two (2) Business Days after submission of reasonable documentation thereof, for 100% of their reasonable out-of-pocket fees and expenses (including reasonable fees and expenses of their counsel) up to $5,000,000 actually incurred by any of them in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with including the execution of a definitive agreement with respect to, or the consummation arrangement of, as applicableobtaining the commitment to provide or obtaining any financing for such transactions; provided that, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which extent that the Termination Fee exceeds becomes payable to Parent pursuant to Section 7.3(a)(i), the amount of Parent's Expenses previously reimbursed such Termination Fee shall be reduced by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part aggregate amount of the transactions contemplated any fees and expenses actually paid to Parent and its Affiliates by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and7.3(c), in order and following the payment of the Termination Fee, as so reduced, if applicable, to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.Parent, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in have no further obligation under this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company7.3(c), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Metals Usa Holdings Corp.)
Termination Fee. (a) Except as otherwise set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement, the Mergers and the other transactions contemplated by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Mergers are consummated. Notwithstanding the foregoing, (i) Parent and the Company each shall pay 50% of all filing fees payable pursuant to the HSR Act or any additional Antitrust Laws, (ii) Parent shall pay the SEC filing fees associated with the S-4 Registration Statement and (iii) the Company shall pay all costs and expenses incurred in connection with the printing and mailing of the Proxy Statement/Prospectus.
(b) In the event that that:
(1i) Parent shall terminate this Agreement is terminated pursuant to Section 8.1.G. or 8.1(c);
(2ii) this Agreement is terminated pursuant to Section 8.1(f); or
(iii) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) or Section 8.1(g), (B) after the date of this Agreement and at or prior to the time of the termination of this Agreement, a Third Party shall have made, commenced or submitted, or publicly announced its intention to make, commence or submit, an Acquisition Proposal, and (C) the Company or any Subsidiary of the Company consummates an Acquisition Proposal within twelve (12) months after such termination or the Company or any Subsidiary of the Company enters into a definitive agreement within twelve (12) months after such termination to effect an Acquisition Proposal (provided that, for purposes of this Section 8.3(b)(iii), all percentages in the definition of Acquisition Proposal shall be terminated replaced with 50%), then the Company shall pay to Parent a fee in an amount equal to $10,000,0000 (the “Termination Fee”) by wire transfer of immediately available federal funds, free of costs and charges, to an account designated in writing by Parent (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (ySection 8.3(b)(i), within two (a2) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months business days after such termination, Company shall enter (y) in the case of Section 8.3(b)(ii), concurrently with termination of this Agreement, and (z) in the case of Section 8.3(b)(iii), upon the earlier of the entry into a definitive agreement with respect to any Company an Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, Proposal or the consummation ofof an Acquisition Proposal. For the avoidance of doubt, as applicable, any payment made by the Company under this Section 8.3(b) shall be payable only once with respect to this Section 8.3(b) and not in duplication even though such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")payment may be payable under one or more provisions hereof.
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iiic) The Company acknowledges and agrees that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent Parent, Merger Sub and Merger LLC would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., . If the Company shall fail to pay the Termination Fee when due, such fee shall also be deemed to Parent its include the costs and expenses incurred by Parent, Merger Sub and Merger LLC (including attorneys' fees and expensesexpenses of counsel) in connection with such suitthe collection under and enforcement of this Section 8.3, together with interest on such unpaid fee, commencing on the amounts set forth in this Section 8.3.B. date that such fee became due, at a rate equal to the prime rate of interest as reported by SunTrust Bank, N.A. published in the “Money Rates” section of The Wall Street Journal in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyfee became due.
Appears in 2 contracts
Sources: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate If this Agreement is terminated by Parent or the Company pursuant to Section 8.1.G. 9.01(c) or (2Section 9.01(d) this Agreement shall be terminated (x) or by Parent pursuant to Section 8.1.B. 9.01(e)(ii) or Section 9.01(e)(iii), and (yA) pursuant at or prior to Section 8.1.D. andthe time of such termination a Company Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made or, in the case of either (xa termination pursuant to Section 9.01(c), Section 9.01(e)(ii) or (ySection 9.01(e)(iii), shall have been received by the Company or any of its Representatives; and (aB) at or prior to within 12 months after the date of any such termination, there the Company or any of its Affiliates shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter entered into a definitive agreement with respect to any Company Acquisition Proposal or any Company Acquisition Proposal is consummated (regardless of whether it is the same Company Acquisition Proposal), then the Company shall pay, or cause to be paid, to Parent, in cash at the earlier of such time as such agreement is entered into or such transaction is consummated, a non-refundable fee in the amount of the Company Termination Fee; provided, however, for purposes of clause (B) above, all references to “15% or more” in the definition of Company Acquisition Proposal shall be consummateddeemed to be references to “more than 50%”.
(b) If this Agreement is terminated by: (i) Parent pursuant to Section 9.01(e)(i); (ii) by the Company pursuant to Section 9.01(f); or (iii) unless the Company Shareholder Approval was received prior to such termination, thenby the Company pursuant to Section 9.01(c) and the Company Board or any committee thereof made a Company Adverse Recommendation Change; then in each case, the Company shall pay, or cause to be paid, to Parent a non-refundable fee in the amount of the Company Termination Fee. In the case of termination of this Agreement in the manner set forth in clauses (i) or (iii) of this Section 9.03(b), the Company Termination Fee shall be paid by or on behalf of the Company within two (2) Business Days after such termination; and in the case of termination of this Agreement in the manner set forth in clause (1B) of this Section 9.03(b), promptly after the Company Termination Fee shall be paid by the Company immediately prior to or concurrently with such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(c) If this Agreement is terminated (i) by the Company pursuant to Section 9.01(k) or (ii) In by the event that Company or Parent shall terminate this pursuant to Section 9.01(i) as a result of the termination of the Investment Agreement pursuant to Section 8.1.F.10.01(d) thereof if, following the date hereof, an Infiniti Adverse Recommendation Change is made under the Investment Agreement and remains in effect until the time of the Infiniti Stockholders’ Meeting or (iii) by the Company or Parent pursuant to Section 9.01(i) as a result of the termination of the Investment Agreement pursuant to Section 10.01(e), then Company Parent and Infiniti, severally and jointly, shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect topay, or the consummation ofcause to be paid, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds Company a non-refundable fee in the amount of Parent's Expenses previously reimbursed the Parent Termination Fee. The Parent Termination Fee shall be paid by Company pursuant heretoor on behalf of Parent and Infiniti within one (1) Business Day after such termination.
(iiid) The Each of Parent, Infiniti and the Company acknowledges and agrees that (i) the agreements contained in this Section 8.3.B. 9.03 are an integral part of the transactions contemplated by this AgreementTransactions, and that, (ii) without these agreements, Parent Parent, Infiniti, Holdco, Merger Sub and the Company would not enter have entered into this Agreement; accordinglyAgreement and (iii) any amount payable pursuant to this Section 9.03 is not a penalty, if but rather is liquidated damages in a reasonable amount that will compensate Parent, Infiniti, Holdco and Merger Sub, in the case of Section 9.03(a) and Section 9.03(b), or the Company, in the case of Section 9.03(c), in the circumstances in which such amount is payable. The Parties acknowledge and agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion and in no event shall Parent or Infiniti be required to pay the Parent Termination Fee on more than one occasion. If the Company fails to pay in a timely manner the amounts when due pursuant to any amount payable under this Section 8.3.B. and9.03, in order to obtain such payment, Parent makes a claim that results in a judgment against then: (A) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the amounts set forth in collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.3.B., 9.03 incurred in connection with defending such Proceeding to collect such fees); and (B) the Company shall pay to Parent its interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to 300 basis points over the “prime rate” (as reported by Bloomberg L.P. on the date such overdue amount was originally required to be paid). If neither Parent nor Infiniti pays when due any amount payable under this Section 9.03, then: (x) Parent and Infiniti, severally and jointly, shall reimburse the Company for all costs and expenses (including attorneys' fees and expensesdisbursements of counsel) incurred in connection with the collection of such suitoverdue amount and the enforcement by the Company of its rights under this Section 9.03 incurred in connection with defending such Proceeding to collect such fees); and (y) Parent and Infiniti, together with severally and jointly, shall pay to the Company interest on such overdue amount (for the amounts set forth in this Section 8.3.B. at period commencing as of the prime rate of interest as reported by SunTrust Bank, N.A. in effect date such overdue amount was originally required to be paid and ending on the date such payment overdue amount is actually paid to the Company in full) at a rate per annum equal to 300 basis points over the “prime rate” (as reported by Bloomberg L.P. on the date such overdue amount was originally required to be made. Payment of paid).
(e) Notwithstanding anything to the fees described contrary contained in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any except in the case of the following transactions a Willful Breach (other than the transactions contemplated by this Agreement): and subject to Section 9.03(d)), (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving if this Agreement is terminated under circumstances where the Company Termination Fee would be payable pursuant to which this Section 9.03, the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition indefeasible payment by the Company of assets representing the Company Termination Fee in excess accordance with this Agreement shall be the sole and exclusive remedy of fifty percent Parent and its Related Persons against the Company and its Representatives and Affiliates for (50%A) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company)loss suffered, directly or indirectly, of beneficial ownership or as a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) result of the voting power failure of the then outstanding shares Merger to be consummated, (B) the termination of capital stock this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, (ii) in no event will Parent, Infiniti, Holdco or Merger Sub seek to recover any other money damages or seek any other remedy (including any remedy for specific performance, except solely in compliance with Section 10.11) based on a claim in law or equity with respect to (A) any loss suffered, directly or indirectly, as a result of the Companyfailure of the Merger to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and (iii) upon payment of the Company Termination Fee in accordance with this Section 9.03, neither the Company nor any of its Affiliates or Representatives shall have any further liability or obligation to Parent, Infiniti, Holdco or Merger Sub relating to or arising out of this Agreement.
(f) Notwithstanding anything to the contrary contained in this Agreement, except in the case of a Willful Breach (and subject to Section 9.03(d)), (i) if this Agreement is terminated under circumstances where the Parent Termination Fee would be payable pursuant to this Section 9.03, the indefeasible payment by Parent of the Parent Termination Fee in accordance with this Agreement shall be the sole and exclusive remedy of the Company and its Related Persons against Parent, Infiniti, Holdco and Merger Sub and their respective Representatives and Affiliates for (A) any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, (ii) in no event will the Company seek to recover any other money damages or seek any other remedy (including any remedy for specific performance, except solely in compliance with Section 10.11) based on a claim in law or equity with respect to (A) any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and (iii) upon payment of the Parent Termination Fee in accordance with this Section 9.03, none of Parent, Infiniti, Holdco or Merger Sub or any of their respective Affiliates or Representatives shall have any further liability or obligation to the Company relating to or arising out of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Id Systems Inc), Merger Agreement (Pointer Telocation LTD)
Termination Fee. (i) In If this Agreement is terminated by the event that (1Company pursuant to Section 8.1(d) at a time when Parent shall would be permitted to terminate this Agreement pursuant to Section 8.1.G. 8.1(g)(ii) or by Parent pursuant to Section 8.1(g)(ii) and (2A) at any time on or after the date of this Agreement and prior to such termination an Acquisition Proposal shall be terminated have been made to the Company Board of Directors or the Company or publicly announced or publicly known and, in either case, not withdrawn at the time of the Company Stockholders Meeting, and (B) within twelve (12) months after the date of such termination, (x) pursuant to Section 8.1.B. the Company enters into a definitive agreement providing for an Acquisition Proposal or (y) pursuant to Section 8.1.D. andany Acquisition Proposal is consummated, then the Company shall pay Parent a fee of $150,000,000 in cash (the case “Termination Fee”) within two (2) Business Days following either of either the events set forth in clauses (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")above occurring.
(ii) In the event that If Parent shall terminate terminates this Agreement pursuant to Section 8.1.F.8.1(g)(i), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby within two ("Parent's Expenses"), and if, within nine (92) months of Business Days after such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.termination, the Company shall pay to Parent its costs the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 8.1(j), substantially concurrently with or prior to (and expenses as a condition to) such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(including attorneys' fees iv) If the Company or Parent terminates this Agreement pursuant to Section 8.1(e) during a time which Parent is entitled to terminate this Agreement pursuant to Section 8.1(g)(i), the Company shall pay or cause to be paid to Parent the Termination Fee.
(v) If this Agreement is terminated by Parent pursuant to Section 8.1(d) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(h)(ii) or by the Company pursuant to Section 8.1(h)(ii) and expenses(A) at any time on or after the date of this Agreement and prior to such termination a Parent Acquisition Proposal shall have been made to the Parent Board of Directors or Parent or publicly announced or publicly known and, in either case, not withdrawn at the time of the Parent Shareholders Meeting, and (B) within twelve (12) months after the date of such termination, (x) Parent enters into a definitive agreement providing for a Parent Acquisition Proposal or (y) any Parent Acquisition Proposal is consummated, then Parent shall pay the Company a fee of $300,000,000 in cash (the “Parent Termination Fee”) within two (2) Business Days following either of the events set forth in clauses (x) or (y) above occurring.
(vi) If Company terminates this Agreement pursuant to Section 8.1(h)(i), then within two (2) Business Days after such termination, Parent shall pay to the Company the Parent Termination Fee.
(vii) If Parent terminates this Agreement pursuant to Section 8.1(k), substantially concurrently with or prior to (and as a condition to) such termination, Parent shall pay or cause to be paid to the Company the Parent Termination Fee.
(viii) If the Company or Parent terminates this Agreement pursuant to Section 8.1(f) during a time which the Company is entitled to terminate this Agreement pursuant to Section 8.1(h)(i), Parent shall pay or cause to be paid to the Company the Parent Termination Fee.
(ix) In the event any amount is payable by the Company or Parent pursuant to the preceding clauses (i) through (viii), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by the Party to whom such amount is owed. Such Party shall promptly provide wire transfer instructions in writing to the other Party upon request (and in any event with sufficient time to allow the other Party to pay or cause to be paid to the first Party any Termination Fee or Parent Termination Fee, as applicable, payable hereunder within the time periods required by this Section 8.2(b)). For the avoidance of doubt, in no event shall the Company or Parent be obligated to pay the Termination Fee, Parent Termination Fee, Company Expenses or Parent Expenses, as applicable, on more than one occasion.
(x) Solely for purposes of Section 8.2(b)(i) and Section 8.2(b)(v), the term “Acquisition Proposal” and “Parent Acquisition Proposal” shall have the meaning assigned to such term in Annex A, except that all references to “twenty-five percent (25%)” therein shall be deemed to be references to “fifty percent (50%).”
(xi) If this Agreement is terminated (i) by Parent or the Company pursuant to Section 8.1(d) at a time when all the conditions set forth in Section 7.3 have been satisfied or waived and at a time when Parent is entitled to terminate this Agreement pursuant to Section 8.1(c), (ii) by Parent pursuant to Section 8.1(c) or (iii) by Parent or the Company pursuant to Section 8.1(e) and in the case of clause (i), (ii) or (iii) a Termination Fee is not otherwise payable by the Company pursuant to this Section 8.2(b) in connection with such suittermination, together then the Company shall promptly, but in no event later than one (1) Business Day after delivery to the Company of a notice of demand for payment for all expenses of Parent or Merger Sub incurred in connection with interest on the amounts set forth in Transactions, pay Parent an amount equal to the Parent Expenses. Any amount paid pursuant to this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to 8.2(b)(xi) may be made. Payment of the fees described in deducted from any amount that is subsequently paid under Section 8.2(b)(i).
(xii) If this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): Agreement is terminated (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution by Parent or similar transaction involving the Company pursuant to which Section 8.1(d) at a time when all the shareholders of conditions set forth in Section 7.2 have been satisfied or waived and at a time when the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; is entitled to terminate this Agreement pursuant to Section 8.1(b), (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%pursuant to Section 8.1(b) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) by the acquisition Company or Parent pursuant to Section 8.1(f) and in the case of clause (i), (ii) or (iii) a Parent Termination Fee is not otherwise payable by any person or group Parent pursuant to this Section 8.2(b) in connection with such termination, then Parent shall promptly, but in no event later than one (including by way 1) Business Day after delivery to Parent of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, notice of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) demand for payment for all expenses of the voting power of Company incurred in connection with the then outstanding shares of capital stock of Transactions, pay the CompanyCompany an amount equal to the Company Expenses. Any amount paid pursuant to this Section 8.2(b)(xii) may be deducted from any amount that is subsequently paid under Section 8.2(b)(v).
Appears in 2 contracts
Sources: Merger Agreement (Encana Corp), Merger Agreement (Newfield Exploration Co /De/)
Termination Fee. Notwithstanding any provision in this Agreement to the contrary:
(a) If (i) In prior to the event that termination of this Agreement, any Alternative Proposal (1substituting 80% for the 25% threshold set forth in the definition of “Alternative Proposal”) Parent shall terminate (a “Qualifying Transaction”) is publicly proposed or publicly disclosed prior to, and not withdrawn at or prior to, the Cut-Off Date, (ii) this Agreement is terminated by Parent pursuant to Section 8.1.G. or (27.1(d) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (biii) concurrently with or within nine twelve (912) months after such termination, Company shall enter into a any definitive agreement providing for such Qualifying Transaction will have been entered into with respect to any Company Acquisition the Person or group of Persons who proposed such Qualifying Transaction that was existing at the Cut-Off Date, or any Company Acquisition Affiliate thereof, and in any instance such Qualifying Transaction shall be have been consummated, thenthen the Company will pay to Parent a fee of $62,804,683 (the “Termination Fee”) less the amount of Parent Expenses payable pursuant to this Section 7.2, if any, in cash, substantially concurrently with the case consummation of such Qualifying Transaction.
(1), promptly b) If (i) this Agreement is terminated by the Company pursuant to Section 7.1(g) and (ii) concurrently with or within twelve (12) months after such termination, or in any definitive agreement providing for the case consummation of (2), concurrently a Qualifying Transaction will have been entered into with the execution Person or group of Persons who made the Superior Proposal that was existing at the time of such termination, or any Affiliate thereof, and in any instance such Qualifying Transaction shall have been consummated, then the Company will pay to Parent a fee of:
(i) $35,888,391 (less the amount of Parent Expenses, if any, paid pursuant to this Section 7.2) if such termination results from the Company’s consummation of a definitive agreement Qualifying Transaction that was in response to an Alternative Proposal first received by the Company during the Go-Shop Period or was otherwise consummated with respect toan Excluded Party; and
(ii) $62,804,683 (less the amount of Parent Expenses, if any, paid pursuant to this Section 7.2) if such termination results from the Company’s consummation of a Qualifying Transaction that was in response to an Alternative Proposal not received by the Company during the Go-Shop Period and that was not otherwise consummated with an Excluded Party (the amount set forth in clauses (i) or the consummation of(ii) above, as applicable, such the “Change of Recommendation Termination Fee”). If this Agreement is terminated pursuant to Section 7.1(d) or a Termination Fee is otherwise payable, the Company Acquisition, Company shall will pay within five (5) Business Days following termination as directed by Parent up to $6,000,000 in reasonable and documented out-of-pocket fees and expenses incurred by Parent an amount in cash equal and Merger Sub and their respective Affiliates and Representatives related to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) the transactions contemplated by this Agreement (the "Termination Fee"“Parent Expenses”).
(iic) In consideration of the event that payment by the Company of the Termination Fee, the Change of Recommendation Termination Fee or the Parent shall terminate Expenses, if and solely to the extent permitted by this Section 7.2, Parent and Merger Sub unconditionally and irrevocably agree to (and will cause their respective Affiliates and each of the foregoing’s respective Representatives to) not exercise, and waive, any and all claims and rights it or they may have against the Company and its direct and indirect stockholders relating to or arising out of this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and or the transactions contemplated hereby ("Parent's Expenses")and the Company’s Subsidiaries and its and their respective directors, officers, employees, stockholders and if, within nine (9Representatives) months of such termination of will have no further liability to Parent or Merger Sub under this Agreement, Company shall enter into a definitive agreement Agreement or with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this AgreementAgreement to Parent or its stockholders or Merger Sub, and thatwith such payment to be made substantially concurrently with the consummation of such Qualifying Transaction. Any such payment will be net of any amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, without these agreementslocal or foreign Tax Law.
(d) Notwithstanding any provision of this Agreement to the contrary, Parent would not enter into this Agreement; accordingly(i) the right of specific performance, if and solely to the extent permitted by Section 8.6, or (ii) the ability of Parent to receive the Termination Fee or the Change of Recommendation Termination Fee or the Parent Expenses from the Company, if and solely to the extent permitted by this Section 7.2, will be the sole and exclusive remedies (whether at Law, in equity, in contract, in tort or otherwise) of Parent and Merger Sub and any other Person against the Company fails to pay (or the Company’s Affiliates or its and their respective directors, officers, employees, stockholders and Representatives) for any breach, liability, cost, expense, loss or damage suffered as a result thereof or in a timely manner the amounts due pursuant connection with or related to this Section 8.3.B. Agreement or the transactions contemplated hereby, and, in order the event the Termination Fee or the Change of Recommendation Termination Fee or the Parent Expenses are due and payable, if and solely to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in extent permitted by this Section 8.3.B.7.2, upon payment thereof, the Company shall pay (and the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives) will have no further liability or obligation to Parent, Merger Sub, their respective Affiliates or any of the foregoing’s respective directors, officers, employees, stockholders or Representatives. Notwithstanding any provision of this Agreement to the contrary, under no circumstances will Parent its costs and expenses or Merger Sub together be permitted or entitled to receive (including attorneys' fees and expensesA) in connection with such suitboth a grant of specific performance, together with interest on the amounts set forth in this Section 8.3.B. at one hand, and the prime rate Termination Fee or the Change of interest as reported by SunTrust BankRecommendation Termination Fee or the Parent Expenses, N.A. in effect on the date other hand, (B) the Change of Recommendation Termination Fee and the Termination Fee or (C) more than one Change of Recommendation Termination Fee or more than one Termination Fee. The Parties acknowledge and agree that in no event will Parent or Merger Sub seek to recover any money damages other than the Termination Fee or the Change of Recommendation Termination Fee or the Parent Expenses (and such payment was Change of Recommendation Termination Fee, Termination Fee or Parent Expenses will be payable if and solely to the extent it is required to be made. Payment of the fees described in paid under this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company7.2), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Termination Fee. (a) If, but only if, the Agreement is terminated:
(i) In by either the event that (1) Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. 8.1(b)(i) or (2Section 8.1(b)(iii) this Agreement shall be terminated (x) or by Parent pursuant to Section 8.1.B. or 8.1(d)(i) and (yA) pursuant to Section 8.1.D. and, in the case of either (x) or (ya termination pursuant to Section 8.1(b)(i), (a) at or the Parent Stockholder Approval shall have been obtained and the Company Stockholder Approval shall not have been obtained prior to such termination, there shall exist (B) in any such case the Company (x) receives or have been proposed an has received a Company Acquisition Proposal after the date of this Agreement, which proposal has been publicly announced and (by) within nine twelve (912) months after of the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, a Company Acquisition Proposal, and (C) in the case of termination pursuant to Section 8.1(b)(iii), such Company Acquisition Proposal has been withdrawn prior to the date of the Company Stockholder Meeting (or any adjournment thereof), then the Company shall pay, or cause to be paid, to Parent a fee equal to $51,000,000 (the “Termination Fee”) plus, if not previously paid pursuant to Section 8.3(a)(ii) below, the Expense Amount, by wire transfer of same day funds to an account designated by Parent, not later than the consummation of such transaction arising from such Company Acquisition Proposal; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Company Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”;
(ii) by either the Company or Parent pursuant to Section 8.1(b)(iii), the Company shall pay, or cause to be paid, to Parent the Expense Amount (by wire transfer to an account designated by Parent) within two (2) Business Days of such termination; or
(iii) by either the Company or Parent pursuant to Section 8.1(b)(iv), then Parent shall pay, or cause to be paid, to the Company shall enter the Expense Amount (by wire transfer to an account designated by the Company) within two (2) Business Days of such termination; or
(iv) by either the Company or Parent pursuant to Section 8.1(b)(iii), and the Company receives or has received a Company Acquisition Proposal after the date of this Agreement, which proposal has been publicly announced and not withdrawn prior to the date of the Company Stockholder Meeting and the Company Board did not make an Adverse Recommendation Change, if the Company subsequently enters into a an acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement or other similar definitive agreement with respect to any a Company Acquisition or any Company Acquisition shall be consummated, then, in the case of Proposal within twelve (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (912) months of such the termination of this Agreement, the Company shall enter pay, or cause to be paid, to Parent the Termination Fee plus, if not previously paid pursuant to Section 8.3(a)(ii) above, the Expense Amount, by wire transfer of same day funds to an account designated by Parent, within two (2) Business Days of entering into a any such definitive agreement with respect agreement; provided, however, that for purposes of this Section 8.3(a)(iv), the references to any “twenty percent (20%)” in the definition of Company Acquisition or any Proposal shall be deemed to be references to “fifty percent (50%)”; or
(v) by the Company Acquisition involving pursuant to Section 8.1(c)(ii) then the Company shall pay, or cause to be consummatedpaid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent as a condition to the effectiveness of such termination; or
(vi) by Parent pursuant to Section 8.1(d)(ii) , then concurrently the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the execution Expense Amount, by wire transfer of a definitive agreement with respect tosame day funds to an account designated by Parent, within two (2) Business Days of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that:
(i) under no circumstances shall the Company or Parent be required to pay the consummation ofTermination Fee or Expense Amount, as applicable, such earlier than one (1) full Business Day after receipt of appropriate wire transfer instructions from the party entitled to payment; and
(ii) under no circumstances shall the Company Acquisition, then Company shall or Parent be required to pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoor Expense Amount, as applicable, on more than one occasion.
(iiic) The Company Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Payment is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable for the efforts and thatresources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.3 and, in order to obtain such payment, Parent makes either the Company or Parent, as the case may be, commences a claim suit that results in a judgment against the Company other party for the amounts payment of any amount set forth in this Section 8.3.B.8.3, the Company such paying party shall pay to Parent the other party its costs and expenses (including attorneys' fees and expenses) Expenses in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime annual rate of interest as reported by SunTrust Bank, N.A. in effect on five percent (5%) for the period from the date such payment was required to be mademade through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
(i) If one party to this Agreement (the “Termination Fee Payor”) is required to pay another party to this Agreement (the “Termination Fee Payee”) a Termination Payment, such Termination Payment shall be paid into escrow on the date such payment is required to be paid by the Termination Fee Payor pursuant to this Agreement by wire transfer of immediately available funds to an escrow account designated in accordance with this Section 8.3(d). In the event that the Termination Fee Payor is obligated to pay the Termination Fee Payee the Termination Payment, the amount payable to the Termination Fee Payee in any tax year of the Termination Fee Payee shall not exceed the lesser of (i) the Termination Payment of the fees Termination Fee Payee, and (ii) the sum of (A) the maximum amount that can be paid to the Termination Fee Payee without causing the Termination Fee Payee to fail to meet the requirements of Section 856(c)(2) and (3) of the Code for the relevant tax year, determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”) and the Termination Fee Payee has $1,000,000 of income from unknown sources during such year which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in each case, as determined by the Termination Fee Payee’s independent accountants, plus (B) in the event the Termination Fee Payee receives either (x) a letter from the Termination Fee Payee’s counsel indicating that the Termination Fee Payee has received a ruling from the IRS as described below in this Section 8.3(d) or (y) an opinion from the Termination Fee Payee’s outside counsel as described below in this Section 8.3(d), an amount equal to the excess of the Termination Payment less the amount payable under clause (A) above.
(ii) To secure the Termination Fee Payor’s obligation to pay these amounts, the Termination Fee Payor shall deposit into escrow an amount in cash equal to the Termination Payment with an escrow agent selected by the Termination Fee Payor on such terms (subject to this Section 8.3(d)) as shall be mutually agreed upon by the Termination Fee Payor, the Termination Fee Payee and the escrow agent. The payment or deposit into escrow of the Termination Payment pursuant to this Section 8.3(d) shall be made at the time the Termination Fee Payor is obligated to pay the Termination Fee Payee such amount pursuant to Section 8.3 by wire transfer. The escrow agreement shall provide that the Termination Payment in escrow or any portion thereof shall not be released to the Termination Fee Payee unless the escrow agent receives any one or combination of the following: (i) a letter from the Termination Fee Payee’s independent accountants indicating the maximum amount that can be paid by the escrow agent to the Termination Fee Payee without causing the Termination Fee Payee to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income and the Termination Fee Payee has $1,000,000 of income from unknown sources during such year which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in which case the escrow agent shall release such amount to the Termination Fee Payee, or (ii) a letter from the Termination Fee Payee’s counsel indicating that (A) the Termination Fee Payee received a ruling from the IRS holding that the receipt by the Termination Fee Payee of the Termination Payment would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code or (B) the Termination Fee Payee’s outside counsel has rendered a legal opinion to the effect that the receipt by the Termination Fee Payee of the Termination Payment should either constitute Qualifying Income or should be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agent shall release the remainder of the Termination Payment to the Termination Fee Payee. The Termination Fee Payor agrees to amend this Section 8.3(d) at the reasonable request of the Termination Fee Payee in order to (i) maximize the portion of the Termination Payment that may be distributed to the Termination Fee Payee hereunder without causing the Termination Fee Payee to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve the Termination Fee Payee’s chances of securing a favorable ruling described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i8.3(d) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) assist the acquisition by any person or group (including by way Termination Fee Payee in obtaining a favorable legal opinion from its outside counsel as described in this Section 8.3(d). Any amount of the Termination Payment that remains unpaid as of the end of a tender offer or an exchange offer or issuance by taxable year shall be paid as soon as possible during the Companyfollowing taxable year, subject to the foregoing limitations of this Section 8.3(d), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) provided that the obligation of the voting power Termination Fee Payor to pay the unpaid portion of the then outstanding shares Termination Payment shall terminate on the December 31 following the date which is five (5) years from the date of capital stock of the Companythis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Realty Income Corp), Merger Agreement (American Realty Capital Trust, Inc.)
Termination Fee. (ia) In the event that that:
(1i) Parent (A) a Takeover Proposal shall terminate have been made known to the Company or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal and thereafter, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x7.1(b)(i) or (ySection 7.1(b)(iii), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (bC) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement with respect to any Company Acquisition or consummates a transaction contemplated by such Takeover Proposal or any other Takeover Proposal within twelve (12) months of the date this Agreement is terminated;
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(i) and the Company’s breach or failure triggering such termination shall have been a material and willful breach of, or failure to comply with, the Company’s obligations under Section 5.1 or 5.3;
(iii) (A) a Takeover Proposal shall have been made known to the Company Acquisition or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal and thereafter, (B) this Agreement is terminated by Parent pursuant to Section 7.1(c)(i) in circumstances not covered by Section 7.3(a)(ii), and the Company’s breach or failure triggering such termination shall have been willful, and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by such Takeover Proposal or any other Takeover Proposal within twelve (12) months of the date this Agreement is terminated;
(iv) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii); or
(v) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); then in any such event under clause (i), (ii), (iii), (iv) or (v) of this Section 7.3(a), the Company shall pay to Parent a termination fee of thirty-one million dollars ($31,000,000) in cash (the “Termination Fee”).
(b) Any payment required to be made pursuant to Sections 7.3(a)(i) or 7.3(a)(iii) shall be consummated, then, in made to Parent promptly following the case earlier of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal (and in any event not later than two (2) business days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to Section 7.3(a)(iv) shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(c)(ii) (and in any event not later than two (2) business days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to Section 7.3(a)(ii) shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(c)(i) in the circumstances described in Section 7.3(a)(ii) (and in any event not later than two (2) business days after delivery to the Company of notice of demand for payment). All such payments shall be made by wire transfer of immediately available funds to an account to be designated by Parent’ and any payment required to be made pursuant to Section 7.3(a)(v) shall be made to Parent prior to, and as applicablea condition precedent to the effectiveness of, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (termination by the "Termination Fee")Company.
(iic) In the event that Parent the Company shall terminate this Agreement fail to pay the Termination Fee required pursuant to this Section 8.1.F.7.3 when due, then such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by PNC Bank in the City of Pittsburgh from time to time during such period, as such bank’s Prime Lending Rate plus 5%. In addition, if the Company shall promptly reimburse fail to pay such fee when due, the Company shall also pay to Parent for all of Parent's ’s costs and expenses (including attorneys’ fees) in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of efforts to collect such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) fee. The Company acknowledges that the agreements contained in Termination Fee and the other provisions of this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent would not enter into this Agreement. The parties acknowledge and agree that in the event of a breach of this Agreement, the payment of the Termination Fee shall not constitute the exclusive remedy available to Parent, and that Parent shall be entitled to the remedies set forth in Section 8.8, including injunction and specific performance, and all additional and other remedies available at law or in equity to which Parent may be entitled; accordinglyprovided, if however, that, in the event that the Termination Fee becomes payable and is paid by the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and7.3, in order the Termination Fee shall be Parent’s, Merger Sub’s and Merger Sub 2’s sole and exclusive remedy under this Agreement.
(d) Notwithstanding anything to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.contrary contained herein, the Company shall pay be obligated, subject to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in terms of this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank7.3, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypay only one Termination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Ladish Co Inc), Merger Agreement (Allegheny Technologies Inc)
Termination Fee. (a) If (i) In the event Company (A) receives an Alternative Proposal after the date of this Agreement and prior to the termination of this Agreement that has been communicated to senior management of the Company or the Company Board or that has been publicly disclosed and has not been terminated or withdrawn, (B) this Agreement is thereafter terminated by the Company or Parent pursuant to Section 8.1(b)(ii), or by Parent pursuant to Sections 8.1(e)(i) or 8.1(e)(ii), and (C) within one (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in year from the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months date of such termination of this Agreement, the Company consummates such Alternative Proposal; provided, that, for purposes of this Section 8.3(a)(i), “Alternative Proposal” shall enter into a definitive agreement with respect have the meaning ascribed in Section 1.1 except that references to any Company Acquisition or any Company Acquisition involving Company “20%” shall be consummated, then concurrently with replaced by “50%”; (ii) the execution of a definitive agreement with respect toCompany terminates this Agreement pursuant to Section 8.1(c), or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in Parent terminates this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due Agreement pursuant to this Section 8.3.B. and8.1(e)(iv) or Section 8.1(f), in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., then the Company shall pay to Parent its costs the amount of $4,000,000 in cash (the “Termination Fee”) pursuant to Section 8.3(b) below.
(b) The Company shall pay the Termination Fee to Parent, by wire transfer of same day funds, at or prior to the time of termination, in the case of such termination by the Company, or as promptly as practicable (and expenses in any event within two (including attorneys' fees and expenses2) Business Days of receipt of Parent’s termination notice pursuant to Section 8.2), in connection with the case of such suittermination by Parent. Except to the extent required by applicable Law, together with interest on the amounts set forth in Company shall not withhold any withholding Taxes from any payment made pursuant to this Section 8.3.B. at 8.3. Notwithstanding any provision of this Agreement to the prime rate contrary, Parent and Purchaser agree that (i) payment of interest as reported by SunTrust Bankthe Termination Fee, N.A. in effect on the date if such payment was required to is payable and actually paid, shall be made. Payment the sole and exclusive remedy of Parent and Purchaser against the Company, any of the fees described Company Subsidiaries or any of the Company’s and the Company Subsidiaries’ respective former, current or future Representatives, stockholders or Affiliates for monetary damages and (ii) none of the Company, any of the Company Subsidiaries or any of the Company’s and the Company Subsidiaries’ respective former, current or future Representatives, stockholders or Affiliates shall have any liability or obligation, in any such case (clause (i) or (ii)) relating to, arising out of or with respect to this Section 8.3.B. shall not be Agreement or any of the Transactions (whether relating to, arising out of or with respect to any matter(s) forming the basis for such termination or otherwise), in lieu of damages incurred each case, other than in the event of breach fraud or willful misconduct. Without limitation of this Agreement. For the purposes foregoing, none of this AgreementParent, "Company Acquisition" Purchaser, any of their respective Affiliates or any other Person shall mean be entitled to bring or maintain any proceeding, claim, suit or action against, or seek damages from, the Company, any of the following transactions (Company Subsidiaries or any other than the transactions contemplated by this Agreement): Person referred to in clause (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by above, in contravention of the preceding sentence. Under no circumstances shall the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee be payable more than once.
Appears in 2 contracts
Sources: Merger Agreement (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)
Termination Fee. (a) If this Agreement is terminated (i) In by Parent pursuant to Section 7.1(g), (ii) by the event that Company pursuant to Section 7.1(b) and, at the time of such termination, (1A) the Company Shareholder Approval shall not have been obtained and (B) Parent shall would have been permitted to terminate this Agreement pursuant to Section 8.1.G. or 7.1(g), (2iii) this Agreement shall be terminated (x) by the Company pursuant to Section 8.1.B. 7.1(h), or (yiv) by Parent or the Company pursuant to Section 8.1.D. and7.1(b) or Section 7.1(d) or by Parent pursuant to Section 7.1(f), and in the case of either any termination pursuant to this clause (x) or (yiv), (aA) a Takeover Proposal shall have been publicly announced or shall have become publicly known and (B) at any time on or prior to the twelve-month anniversary of such termination, there shall exist termination the Company or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter any of its Subsidiaries enters into a definitive agreement with respect to any Company Acquisition Takeover Proposal or the transactions contemplated by any Company Acquisition shall be Takeover Proposal are consummated, thenthe Company shall pay Parent the Termination Fee, by wire transfer (to an account designated by Parent) in immediately available funds (1) in the case of clause (i), within two business days of such termination, in the case of clauses (1), promptly after ii) and (iii) prior to or concurrently with such termination, or and in the case of clause (2), concurrently with iv) upon the execution earlier of a entering into such definitive agreement with respect to, to a Takeover Proposal or the consummation ofof the transactions contemplated by a Takeover Proposal. “Termination Fee” shall mean a cash amount equal to $50,000,000. Notwithstanding anything to the contrary in this Agreement, as applicableif the Termination Fee shall become due and payable in accordance with this Section 7.3(a), from and after such Company Acquisitiontermination and payment of the Termination Fee pursuant to and in accordance with this Section 7.3(a), the Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent have no further liability of any kind for Parent's costs and expenses any reason in connection with this Agreement and or the transactions termination contemplated hereby ("Parent's Expenses"other than as provided under this Section 7.3(a), except in the case of fraud or intentional and if, within nine (9) months of such termination material breach by the Company of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with . Each of the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which parties hereto acknowledges that the Termination Fee exceeds is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the amount circumstances in which such Termination Fee is due and payable and which do not involve fraud or intentional and material breach, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part consummation of the transactions contemplated by this Agreementhereby, and that, without these agreements, which amount would otherwise be impossible to calculate with precision. In no event shall Parent would not enter into this Agreement; accordingly, if the Company fails be entitled to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such more than one payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this AgreementTermination Fee. For the Solely for purposes of this AgreementSection 7.3, "Company Acquisition" “Takeover Proposal” shall mean any of have the following transactions (other than the transactions contemplated by this Agreement): (i) a mergermeaning ascribed thereto in Section 8.15(xxv), consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant except that all references to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (15% shall be changed to 50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Alcoa Inc.), Merger Agreement (Rti International Metals Inc)
Termination Fee. (ia) In the event that (1) Parent shall terminate If Purchaser terminates this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x9.1(e) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate Seller terminates this Agreement pursuant to Section 8.1.F.9.1(h), then Company Seller shall promptly reimburse Parent for Parent's costs and expenses pay to Purchaser, by wire transfer of immediately available funds to an account designated in connection with this Agreement and writing by Purchaser, a fee of $875,000 (the transactions contemplated hereby “Termination Fee”) ("Parent's Expenses"i) in the case of a termination pursuant to Section 9.1(e), and if, within nine two (92) months Business Days after the date of such termination and (ii) in the case of a termination pursuant to Section 9.1(h), concurrently with such termination.
(b) If (i) after the date of this Agreement, Company shall enter an Acquisition Proposal is made, proposed or communicated to the Seller Board or becomes publicly known; (ii) thereafter this Agreement is terminated by either Seller or Purchaser pursuant to Sections 9.1(b) or 9.1(d), or by Purchaser pursuant to Section 9.1(g); and (iii) within twelve (12) months after such termination (A) any transaction included within the definition of an Acquisition Proposal is consummated or (B) Seller enters into a definitive agreement with respect to providing for the consummation of any Company transaction within the definition of Acquisition or any Company Acquisition involving Company shall be consummatedProposal, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company Seller shall pay to Parent Purchaser, by wire transfer of immediately available funds to an amount account designated in cash equal to the amount writing by which Purchaser, the Termination Fee exceeds within two (2) Business Days of the amount first to occur of Parent's Expenses previously reimbursed by Company pursuant hereto(1) consummation of such transaction or (2) execution of such definitive agreement; provided that, solely for purposes of this Section 9.2(b), the term “Acquisition Proposal” shall have the meaning ascribed thereto in this Agreement, except that all references to 20% shall be changed to 50%.
(iiic) The Company Notwithstanding anything herein to the contrary, Purchaser’s right to receive a Termination Fee pursuant to this Section 9.2 under circumstances under which Purchaser is entitled to receive the Termination Fee shall be the sole and exclusive remedy of Purchaser or any of its Affiliates against Seller or its Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Termination Fee to Purchaser, Seller and its Representatives shall have no liability or obligation relating to or arising out of the failure to consummate the Contemplated Transactions. Purchaser agrees that in no event shall Seller be obligated to pay the Termination Fee on more than one occasion.
(d) Each of the parties hereto acknowledges that the agreements contained in this Section 8.3.B. 9.2 are an integral part of the transactions contemplated by this Agreement, and thatthat the Termination Fee is not a penalty, without these agreementsbut rather is a reasonable amount that will compensate Purchaser in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Contemplated Transactions, Parent each of which amounts would not enter into this Agreement; accordinglyotherwise be impossible to calculate with precision. In addition, if the Company Seller fails to pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. and9.2(a) or Section 9.2(b), in order to obtain such paymentas applicable, Parent makes a claim that results in a judgment against the Company then Seller shall reimburse Purchaser for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its all reasonable costs and expenses (including attorneys' disbursements and fees and expensesof counsel) incurred in the collection of such overdue amount, including in connection with such suitany related actions, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Banklitigation, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyproceeding commenced.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Communications Systems Inc), Securities Purchase Agreement (Lantronix Inc)
Termination Fee. (i) In the event that (1x) Parent shall terminate this Agreement is validly terminated pursuant to Section 8.1.G. 7.01(c) or (2d) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) (A) prior to the obtaining of the Company Stockholder approval, an Acquisition Proposal has been publicly proposed and not publicly withdrawn by any person (other than Parent Group or any of their respective affiliates), (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.1.D. and, in 7.01(b)(iii) (but only if the case of either (x) or (y), (a) at or Stockholders’ Meeting has not been held prior to such termination, there shall exist time) or have been proposed an Acquisition Proposal Section 7.01(b)(i) and (bC) within nine any person (9other than Parent Group or any of their respective affiliates) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such terminationconsummate, or in the case of (2)consummate, concurrently an Acquisition Proposal with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars within twelve ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (912) months of such following the termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent, by wire transfer of same day funds, a termination fee of US$50,000,000 (the “Termination Fee”) on the date such person and the Company enter into such definitive agreement or, if earlier, consummate an Acquisition Proposal, as applicable; provided, however, that, subject to Section 7.02(b)(ii) below, the Company shall have no liability under this Agreement in the event that the Company pays Parent an amount in cash equal to the amount by which the Termination Fee exceeds Fee; provided further, however, that for the amount purpose of Parent's Expenses previously reimbursed by Company pursuant heretothis Section 7.02(b)(i)(y)(C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02, except that references to “more than 20%” shall be deemed to be references to “more than 50%.”
(iiiii) The Company acknowledges that the agreements contained in this Section 8.3.B. 7.02 are an integral part of the transactions contemplated by this Agreement, that the damages resulting from the termination of this Agreement under circumstances where a Termination Fee is payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Section 7.02(b)(i) are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty, and that, without these agreements, Parent Group would not enter into this Agreement; accordingly, if the Company fails to promptly pay in a timely manner the amounts due pursuant to this Section 8.3.B. Termination Fee, and, in order to obtain such payment, payments Parent makes Group commences a claim that suit which results in a judgment against the Company for the amounts set forth in this Section 8.3.B.Termination Fee, the Company shall pay to Parent Group its costs and expenses (including attorneys' fees and expensesreasonable attorney’s fees) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Northwestern Corp), Merger Agreement (Northwestern Corp)
Termination Fee. (ia) In the event that (1) Parent shall If Purchaser exercises its right to terminate this Agreement pursuant under Section 7.1(f) or the Company exercises its right to Section 8.1.G. or (2) terminate this Agreement shall be terminated (x) pursuant to under Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y7.1(g), the Company shall pay to Purchaser on demand $400,000 (a) at or prior the “Company Termination Fee”), payable in same-day funds, to such terminationreimburse Purchaser for its time, there shall exist or have been proposed an Acquisition Proposal expense, opportunity costs and other costs and damages associated with pursuing the Offer and the Merger.
(b) If within nine (9) twelve months after such terminationtermination of this Agreement under Section 7.1(d), the Company shall enter into any agreement relating to a definitive agreement Company Takeover Proposal with respect to any a Person other than Purchaser, Merger Sub or one of their Affiliates or a Company Acquisition Takeover Proposal with a Person other than Purchaser, Merger Sub or any Company Acquisition shall be one of their Affiliates is consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect immediately prior to, and as a condition of, entering into such agreement or the consummation ofof such transaction, as applicablethe case may be, such Company Acquisition, the Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (Purchaser upon demand the "Termination Fee", payable in same-day funds, to reimburse Purchaser for its time, expense, opportunity costs and other costs and damages associated with pursuing the Offer and the Merger; provided that no such amount shall be payable if the Termination Fee shall have been paid in accordance with Section 7.3(a) of this Agreement. For purposes of this Section 7.3(b), a “Company Takeover Proposal” shall have the meaning set forth in Section 4.8 hereof, except that references to “20%” in such definition shall be replaced by “66-2/3%.”
(iic) In the event that Parent shall terminate If this Agreement is terminated pursuant to Section 8.1.F.7.1(d), then the Company shall pay, as promptly reimburse Parent for Parent's costs as possible (but in any event within one business day) following receipt of an invoice therefor, all documented, out-of-pocket fees and expenses (including reasonable legal fees and expenses) incurred by Parent and its affiliates on or prior to the termination of this Agreement in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and thatincluding, without these agreementsbut not limited to the Offer (“Parent Expenses”), as directed by Parent would not enter into this Agreementin writing, up to a maximum of $200,000; accordinglyprovided, if however, that the Company fails may deduct from any Termination Fee it is or becomes required to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.3(b) hereof, the Company shall pay to amount of any Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyExpenses actually paid.
Appears in 2 contracts
Sources: Merger Agreement (International Electronics Inc), Merger Agreement (Linear LLC)
Termination Fee. (a) If, but only if, the Agreement is terminated:
(i) In by either the event that (1) Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. 8.1(b)(i) or (2Section 8.1(b)(iii) this Agreement shall be terminated or by Parent pursuant to Section 8.1(d)(i), in any such case if the Company (x) pursuant to Section 8.1.B. receives or has received an Acquisition Proposal, which proposal has been publicly announced after the date of this Agreement and (y) pursuant to Section 8.1.D. and, in the case of either within ten (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (910) months of such the termination of this Agreement, Company shall enter into consummates a transaction regarding, or executes a binding or definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement which is later consummated with respect to, any Acquisition Proposal, then the Company shall pay, or cause to be paid, to Parent a fee equal to $1,400,000 (the “Termination Fee”) plus, if not previously paid pursuant to Section 8.3(a)(ii) below, the Expense Amount, by wire transfer of same day funds to an account designated by Parent, not later than the consummation of such transaction arising from any such Acquisition Proposal; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”;
(ii) by either the Company or Parent pursuant to Section 8.1(b)(iii), then the Company shall pay, or cause to be paid, to Parent the Expense Amount (by wire transfer to an account designated by Parent) within two (2) Business Days of such termination; or
(iii) by the Company pursuant to Section 8.1(c)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent, as a condition to the effectiveness of such termination; or
(iv) by Parent pursuant to Section 8.1(d)(ii) , then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent, within two (2) Business Days of such termination; or
(v) by the Company pursuant to Section 8.1(c)(iii), then Parent shall pay or cause to be paid to the Company a fee equal to $1,000,000 (the “Reverse Termination Fee”) within two (2) Business Days after the date of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that:
(i) under no circumstances shall (A) the Company be required to pay the Termination Fee or the consummation ofExpense Amount, as applicable, such and (B) Parent be required to pay the Reverse Termination Fee, in each case, earlier than one (1) full Business Day after receipt of appropriate wire transfer instructions from the party entitled to payment; and
(ii) under no circumstances shall the Company Acquisition, then Company shall be required to pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds or Expense Amount, as applicable, on more than one occasion, nor shall Parent be required to pay the amount of Parent's Expenses previously reimbursed by Company pursuant heretoReverse Termination Fee on more than one occasion.
(iiic) The Company Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) neither the Termination Payment nor the Reverse Termination Fee is a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent or the Company, as applicable, in the circumstances in which it is payable for the efforts and thatresources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger and the other transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company or Parent fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.3 and, in order to obtain such payment, the Company or Parent makes commences a claim suit that results in a judgment against the Company other party for the amounts payment of any amount set forth in this Section 8.3.B.8.3, the Company or Parent, as applicable, shall pay to Parent its the other party the costs and expenses (including attorneys' fees and expenses) of such other party in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime annual rate of interest as reported by SunTrust Bank, N.A. in effect on five percent (5%) for the period from the date such payment was required to be made. Payment of made through the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in date such payment was actually received, or such lesser rate as is the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated maximum permitted by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyapplicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Summit Financial Services Group Inc), Merger Agreement (Summit Financial Services Group Inc)
Termination Fee. (i) In If (A) this Agreement is terminated by Parent or the event that Company pursuant to Section 7.1(b)(i) or (ii) and (1) Parent shall terminate after the date of this Agreement pursuant and prior to Section 8.1.G. or at the time of such termination a Company Acquisition Proposal shall have been publicly announced and not unconditionally and irrevocably withdrawn prior to ten (10) business days prior to the date for the Company’s Stockholder Meeting; and (2) this Agreement shall be terminated within twelve (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (912) months of such termination of this Agreement, pursuant to Section 7.1(b)(i) or (ii) the Company shall enter either enters into a definitive agreement with respect to any for or consummates a Company Acquisition Transaction with any Person or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to (B) this Agreement is terminated by Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and7.1(d) then, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.each case, the Company shall pay to Parent, in immediately available funds a nonrefundable fee in the amount of $15,000,000 (the “Termination Fee”). Any Termination Fee payable by the Company to Parent its costs and expenses (including attorneys' fees and expensespursuant to Section 7.3(b)(i)(A) in connection with such suit, together with interest on shall be paid to Parent by the amounts set forth in this Section 8.3.B. Company at or prior to the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment earlier of the fees described in this execution of the agreement providing for the applicable Company Acquisition Transaction or consummation of the applicable Company Acquisition Transaction, as the case may be. Any Termination Fee payable by the Company to Parent pursuant to Section 8.3.B. 7.3(b)(i)(B) shall not be in lieu of damages incurred in paid to Parent by the event of breach of this AgreementCompany within one (1) business day after such termination by Parent. For the purposes of this AgreementSection 7.3(b)(i) all references to “15%” in the definition of a Company Acquisition Transaction shall be deemed to be “30%”.
(ii) If (A) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or (iii) and (1) after the date of this Agreement and prior to or at the time of such termination a Parent Acquisition Proposal shall have been publicly announced and not unconditionally and irrevocably withdrawn prior to ten (10) business days prior to the date for the Parent’s Stockholder Meeting; and (2) within twelve (12) months of such termination pursuant to Section 7.1(b)(i) or (iii) Parent either enters into a definitive agreement for or consummates a Parent Acquisition Transaction with any Person, "Company Acquisition" shall mean any of the following transactions or (other than the transactions contemplated B) this Agreement is terminated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which Section 7.1(e), then, in each case, Parent shall pay to the shareholders Company, in immediately available funds, the Termination Fee. Any Termination Fee payable by Parent to the Company pursuant to Section 7.3(b)(ii)(A) shall be paid by Parent to the Company at or prior to the earlier of the Company immediately preceding such transaction hold less than fifty percent (50%) execution of the aggregate equity interests in agreement providing for the surviving applicable Parent Acquisition Transaction or resulting entity consummation of such transaction; (ii) a sale or other disposition the applicable Parent Acquisition Transaction, as the case may be. Any Termination Fee payable by Parent to the Company of assets representing in excess of fifty percent pursuant to Section 7.3(b)(ii)(B) shall be paid by Parent to the Company within one (50%1) business day after the date of the aggregate fair market value notice of the Company's business immediately prior termination. For purposes of this Section 7.3(b)(ii), all references to “10%” such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance termination by the Company. For purposes of this Section 7.3(b)(ii), directly or indirectly, all references to “15%” in the definition of beneficial ownership or a right Parent Acquisition Transaction shall be deemed to acquire beneficial ownership of shares representing in excess of fifty percent (50be “30%) of the voting power of the then outstanding shares of capital stock of the Company”.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Rainbow Technologies Inc), Merger Agreement (Safenet Inc)
Termination Fee. (ia) In If Parent or the event that (1) Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.G. 8.1(c)(ii) or (2) Section 8.1(d)(ii), the Company shall pay to Parent a termination fee of $6,740,000; provided, however, that in the event that this Agreement shall be is terminated pursuant to Section 8.1(c)(ii)(B) or Section 8.1(d)(ii) and either (x) pursuant to Section 8.1.B. such termination occurs on or before the No-Shop Period Start Date, or (y) the Company enters into a definitive agreement with an Excluded Party with respect to a Superior Proposal in accordance with Section 6.2 on or before the Acceptance Time, then the Company shall pay, or cause to be paid, to Parent an amount equal to $3,370,000 instead of $6,740,000.
(b) If Parent or the Company terminates this Agreement pursuant to Section 8.1.D. and8.1(b)(iii), in the case of either (xSection 8.1(c)(i) or (ySection 8.1(b)(i), and (ai) at or if prior to the date of such termination (but after the date hereof) an Acquisition Proposal is publicly announced or is otherwise communicated to the Board of Directors of the Company, and (ii) within twelve (12) months after the date of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement with respect to or otherwise consummates any Company Acquisition or any Company Acquisition shall be consummatedProposal, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount a termination fee of $6,740,000 no later than two (2) Business Days after the execution of such definitive agreement or consummation of such Acquisition Proposal, as the case may be; provided, that solely for purposes of this Section 8.3(b), the term Acquisition Proposal shall have the meaning ascribed thereto in cash equal Section 6.2(d), except that all references to Two Hundred Fifty Thousand and No/100 Dollars twenty percent ($250,000.0020%) shall be changed to fifty percent (the "Termination Fee"50%).
(iic) In If Parent or the event that Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.F.8.1(c)(i), then the Company shall promptly reimburse Parent for Parent's costs and expenses any Expenses incurred by it, Merger Sub or any of their Affiliates or permitted assignees, in connection with this Agreement and the transactions contemplated hereby an aggregate amount not to exceed $2,000,000 ("Parent's Expenses"“Expense Reimbursement”), and if, within nine no later than two (92) months Business Days after the date of such termination.
(d) The parties agree and understand that in no event shall the Company be required to pay any termination of fee pursuant to this Section 8.3 (any such amount, the “Termination Fee”) on more than one occasion. Notwithstanding anything to the contrary in this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to (i) if Parent an amount in cash equal to the amount by which receives the Termination Fee exceeds and/or Expense Reimbursement from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions and (ii) if Parent or Merger Sub receives any Expense Reimbursement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of Parent's Expenses previously reimbursed such Termination Fee shall be reduced by Company pursuant hereto.
(iii) the aggregate amount of such Expense Reimbursement. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the and that any amounts due payable pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes 8.3 do not constitute a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypenalty.
Appears in 2 contracts
Sources: Merger Agreement (Fidelity National Financial, Inc.), Agreement and Plan of Merger (O Charleys Inc)
Termination Fee. (i) In the event that (1A) Parent shall terminate this Agreement pursuant to Section 8.1.G. 7.1(g), or (2B) this Agreement shall be terminated (x) pursuant to Section 8.1.B. 7.1(b) or (y) pursuant to Section 8.1.D. 7.1(d)(i) and, in the case of either clause (xB)(x) or clause (yB)(y), (a1) at or prior to such termination, there a bona fide Acquisition Proposal shall exist or have been proposed an Acquisition Proposal announced or shall otherwise have become publicly known and (b2) within nine (9) 12 months after such termination, Company shall enter into a definitive agreement with respect to providing for any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of clause (1A) or (B), promptly respectively, Company shall pay to Parent cash and issue to Parent shares of Company Common Stock, in such combination as Company may elect (provided that the cash component must be at least $20 million) with an aggregate value (such shares of Company Common Stock to be valued at $24.125 per share for all purposes of this Section 7.3(b)(i)) of $50 million (the "TERMINATION FEE"). In the event this Agreement shall be terminated as set forth in clause (A), the Termination Fee shall be payable in two installments of equal value, the first of which shall be paid contemporaneously with the termination of this Agreement pursuant to Section 7.1(g), and the second of which shall be due and payable on the 30th day after such termination, or . In the event this Agreement shall be terminated as set forth in the case of clause (2B), concurrently the Termination Fee shall be payable in two installments of equal value, the first of which shall be paid contemporaneously with the execution of a definitive agreement with respect toproviding for the Company Acquisition, or and the second of which shall be due and payable on the earlier to occur of (i) the consummation of, as applicable, of such Company Acquisition and (ii) the 90th days after the date of execution of the definitive agreement relating to such Company Acquisition, . If Company shall satisfies its obligation to pay the Termination Fee in part by delivering to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) shares of Company Common Stock (the "TERMINATION FEE SHARES"), then Parent shall be entitled to registration rights with respect to such shares as described in the Option Agreement (treating the Termination Fee"Fee Shares for all purposes of Section 7 of the Option Agreement as if they were Option Shares (as defined in the Option Agreement)).
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.3(b), the Company shall pay to Parent its actual out-of-pocket costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. 7.3(b) at the prime rate of interest as reported by SunTrust BankCitibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. 7.3(b) shall not be in lieu of damages incurred in the event of fraud in connection with or willful breach of this Agreement. .
(iii) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(f), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby.
(iv) For the purposes of this Agreement, "Company AcquisitionCOMPANY ACQUISITION" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) 60% of the aggregate equity interests in the surviving or resulting entity of such transaction; , (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) 40% of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group "group" (as defined under Section 13(d) of the Exchange Act) (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) 40% of the voting power of the then outstanding shares of capital stock of the Company.
(v) For purposes only of this Section 7.3(b), each reference to "15%" in the definition of Acquisition Transaction set forth in Section 5.4(a) shall be deemed to be "40%," and the reference to "85%" in such definition shall be deemed to be "60%."
(vi) In the event that Company shall terminate this Agreement pursuant to Section 7.1(e), then Parent shall promptly reimburse Company for Company's costs and expenses in connection with this Agreement and the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Peregrine Systems Inc), Merger Agreement (Peregrine Systems Inc)
Termination Fee. (i) In the event that (1) Parent shall terminate Notwithstanding any provision in this Agreement to the contrary, if:
(a) this Agreement is terminated by the Company pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y7.1(g), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in then the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) 960,000 (the "“Termination Fee").
(ii”) In concurrently with and as a condition to the event that Parent shall terminate effectiveness of the termination of this Agreement by the Company pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and 7.1(g);
(b) (i) after the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination date of this Agreement, any bona fide Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) shall enter into a have been publicly announced and not withdrawn prior to the Company Meeting and this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d), and (ii) concurrently with or within fifteen (15) months after such termination, any definitive agreement providing for a Company Alternative Proposal (with respect each reference to any “20%” in the definition thereof replaced with “50%”) shall have been entered into by the Company Acquisition or any a Company Acquisition involving Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) shall be have been consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses the Termination Fee in cash (including attorneys' fees and expensesit being understood by the parties that in no event shall Parent be entitled to receive an amount exceeding the Termination Fee or to receive the Termination Fee on more than one occasion), upon the earlier of consummation of the Company Alternative Proposal (with each reference to “20%” in the definition thereof replaced with “50%”) or the date on which the Company enters into the agreement providing for such Company Alternative Proposal (with each reference to “20%” in connection the definition thereof replaced with such suit“50%”), together with interest on the amounts set forth in as applicable.
(c) this Agreement is terminated by Parent pursuant to Section 8.3.B. 7.1(h) and, at the prime rate time of interest as reported by SunTrust Bankthe Company Change of Recommendation, N.A. a Company Alternative Proposal (with each reference to “20%” in effect on the definition thereof replaced with “50%”) had been made and not withdrawn, then the Company shall pay to Parent the Termination Fee in cash within two (2) Business Days of the date of such termination. Notwithstanding anything to the contrary, payment was required to be made. Payment of the fees Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub in the case of any such termination described in this Section 8.3.B. 7.2 and, upon payment of such Termination Fee, the Company and its Affiliates shall not be in lieu of damages incurred in the event of breach of have no further liability to Parent or Merger Sub with respect to this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than Agreement or the transactions contemplated by this Agreement): (i) a mergerhereby, consolidation, business combination, recapitalization, liquidation, dissolution provided that nothing herein shall release any party from liability for fraud or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyintentional breach.
Appears in 2 contracts
Sources: Merger Agreement (W R Grace & Co), Merger Agreement (Synthetech Inc)
Termination Fee. (ia) In the event that If (1x) Parent shall exercises its right to terminate this Agreement under Section 7.1(c)(ii) or Section 7.1(c)(iii), or (y) the Company exercises its right to terminate this Agreement under Section 7.1(b)(i) or (iii) at a time when Parent is entitled to terminate this Agreement pursuant to Section 8.1.G. 7.1(c)(ii) or Section 7.1(c)(iii), or (2z) the Company exercises its right to terminate this Agreement shall be terminated (x) pursuant to under Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y7.1(d)(ii), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars (i) $250,000.00) 52,500,000 (the "“Termination Fee").
”) and (ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs all reasonable documented out-of-pocket fees and expenses (including, without limitation, reasonable fees and expenses of counsel, accountants, investment bankers, experts and consultants) incurred by Parent in connection with the Transactions or related to the authorization, preparation, negotiation, financing, execution and performance of this Agreement and the transactions contemplated hereby up to a maximum amount of $6,000,000 ("the “Parent Expenses”). Payments under this Section 7.3(a) shall be made concurrently with termination under Section 7.1(b)(i) or (iii) or Section 7.1(d)(ii) and, in the case of a termination under Section 7.1(c)(ii) or (c)(iii), within five business days of Parent's Expenses"’s demand therefor.
(b) If (i) either Parent or the Company exercises its right to terminate this Agreement under Section 7.1(b)(i) or 7.1(b)(iii) or Parent exercises its right to terminate this Agreement under Section 7.1(c)(i), and if, within nine (9ii) months of prior to such termination of this Agreement, the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummatedof its Subsidiaries has received an Alternative Proposal (or an Alternative Proposal or an intention to make an Alternative Proposal has been publicly announced), then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suitthe Parent Expenses within five business days of Parent’s demand therefor. In addition, together with interest on if within twelve months after the amounts set forth in termination of this Section 8.3.B. at the prime rate of interest Agreement as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach previous sentence, the Company consummates any Alternative Proposal or enters into an Acquisition Agreement relating to any Alternative Proposal and subsequently consummates such Acquisition Proposal within eighteen months after termination of this Agreement. , then the Company shall pay to Parent the Termination Fee within five business days of Parent’s demand therefor.
(c) For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (“Alternative Proposal” means, other than the transactions contemplated by this Agreement): Transactions, any offer or proposal with respect to (i) a merger, consolidation, business combination, reorganization, recapitalization, joint venture, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business , immediately prior to such sale transaction, would own less than 75% of the voting equity securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof), (ii) any purchase or other acquisition of 50% or more of the consolidated assets of the Company or (iii) the any purchase or other acquisition (by any person or group (including by way of a tender offer or an offer, exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%otherwise) of the voting power 50% or more of the then outstanding shares of capital stock voting equity securities of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Medco Health Solutions Inc), Merger Agreement (Polymedica Corp)
Termination Fee. (ia) In the event that that:
(1i) Parent shall terminate (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1.G. 6.1(d) or (2) this Agreement shall be terminated (x) by Parent pursuant to Section 8.1.B. 6.1(g) or Section 6.1(i), (yB) any Alternative Acquisition Proposal has been made known to the Company or publicly announced by any Person (other than by Parent, Merger Sub or their respective affiliates) and, in either case, not withdrawn after the date of this Agreement but prior to such termination or, with respect to a termination pursuant to Section 8.1.D. and6.1(d), in prior to the case Company Stockholders Meeting and (C) the Company (I) completes an Alternative Acquisition Proposal within twelve (12) months of either (x) the date this Agreement is terminated or (y), (aII) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter enters into a definitive agreement with respect to any Company Alternative Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and ifProposal, within nine twelve (912) months of the date this Agreement is terminated, and such termination Alternative Acquisition Proposal is consummated (provided, that for purposes of this Agreementclause (C), Company shall enter into a definitive agreement with respect the references to any Company “20%” in the definition of Alternative Acquisition or any Company Acquisition involving Company Proposal shall be consummateddeemed to be references to “50%”), then concurrently with the execution within two Business Days of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.consummation, the Company shall pay to Parent its costs and expenses by wire transfer the Company Termination Fee;
(including attorneys' fees and expensesii) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported Agreement is terminated by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of Section 6.1(f), then prior to or substantially concurrently with such termination the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by shall pay to Parent the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or Termination Fee by wire transfer; or
(iii) the acquisition this Agreement is terminated by any person or group (including by way of a tender offer or an exchange offer or issuance by the CompanyParent pursuant to Section 6.1(e), directly or indirectlythen within two Business Days of such termination, of beneficial ownership or a right the Company shall pay to acquire beneficial ownership of shares representing Parent the Company Termination Fee by wire transfer; it being understood that in excess of fifty percent (50%) of no event shall the voting power of Company be required to pay the then outstanding shares of capital stock of the CompanyCompany Termination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Termination Fee. (i) In the event that (1) If Parent shall terminate terminates this Agreement pursuant to Section 8.1.G. or (28.1(a)(iv) and Parent and Purchaser are not in material breach of this Agreement either at the time of such termination or at the time of such Change in Recommendation, the Company shall be terminated within three (x3) pursuant to Section 8.1.B. or business days of such termination pay Parent a fee of $165 million in cash (ythe “Termination Fee”) pursuant to Section 8.1.D. and, in upon the case payment of either (x) or (y)the Termination Fee, (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter into a definitive agreement have no further liability with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, this Agreement or the consummation of, as applicable, such Company Acquisition, Company shall pay Transactions to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")or Purchaser.
(ii) In If the event that Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"8.1(a)(v), prior to or concurrent with, and ifas a condition to, within nine (9) months the effectiveness of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.termination, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suitthe Termination Fee and, together with interest on upon the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this AgreementTermination Fee, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company shall have no further liability with respect to this Agreement or the Transactions to Parent or Purchaser.
(iii) If Parent or Purchaser terminates this Agreement pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving Section 8.1(a)(ii), or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of if the Company's business immediately , Parent or Purchaser terminates this Agreement pursuant to Section 8.1(a)(iii), and in either case, prior to such sale termination a Competing Proposal had been disclosed and not withdrawn and within six (6) months of either such termination the Company consummates a transaction with respect to a Competing Proposal or enters into an agreement providing for a Competing Proposal that is subsequently consummated, the Company shall, prior to the effectiveness of such consummation, pay to Parent the Termination Fee.
(iiiiv) the acquisition by any person or group (including by way For purposes of a tender offer or an exchange offer or issuance by the CompanySection 8.2(b)(iii), directly or indirectlythe term “Competing Proposal” shall have the meaning assigned to such term in Section 9.5, except that the reference to “at least 20%” in the definition of beneficial ownership or “Competing Proposal” shall be deemed to be a right reference to acquire beneficial ownership of shares representing in excess of fifty percent (“at least 50%” with respect to Competing Proposals that are consummated or agreements entered into with respect thereto during the six (6) of the voting power of the then outstanding shares of capital stock of the Companymonth period following termination described in Section 8.2(b)(iii).
Appears in 2 contracts
Sources: Merger Agreement (Danaher Corp /De/), Merger Agreement (Beckman Coulter Inc)
Termination Fee. (ia) In the event that:
(i) this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(i) (termination after the Outside Date), Section 7.01(b)(iii) (failure to receive the Company Stockholder Approval) or Section 7.01(c)(i) (breach of Company Representations or Covenants); provided that (1A) Parent at the time of termination (x) the Company shall not have been entitled to terminate this Agreement pursuant to Section 8.1.G. 7.01(d)(iii) (termination due to financing failures) and (y) neither Parent nor Merger Sub is then in breach of its representations, warranties, covenants or agreements under this Agreement that would give rise to the failure of any condition set forth in Section 6.01 or Section 6.02 and none of Parent, Merger Sub or any Guarantor is then in material breach of its representations, warranties, covenants or agreements under any Commitment Letter or the Guarantee, (B) a bona fide Takeover Proposal shall have been (1) received by the Company or (2) publicly made, proposed or communicated by a third party after the date of this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case event of either (x) or (ya termination pursuant to Section 7.01(b)(iii), (a) not publicly withdrawn at or least three Business Days prior to such termination, there shall exist or have been proposed an Acquisition Proposal the Company Stockholders’ Meeting and (bC) within nine 12 months of the date this Agreement is terminated, the Company (91) months after such termination, Company shall enter enters into a definitive agreement with respect to any Company Acquisition a Takeover Proposal and such Takeover Proposal is subsequently consummated (regardless of whether such consummation occurs within the 12-month period) or any Company Acquisition (2) consummates a Takeover Proposal; provided, that, for purposes of clauses (B) and (C) of this Section 7.03(a)(i), the references to “20%” in the definition of Takeover Proposal shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay deemed to Parent an amount in cash equal be references to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").“50%”; or
(ii) In the event that Parent shall terminate this Agreement is terminated (A) by Parent pursuant to Section 8.1.F.7.01(c)(ii) (Adverse Recommendation Change) or (B) by the Company pursuant to Section 7.01(d)(ii) (entry into a Company Acquisition Agreement); then, then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby any such event under clause ("Parent's Expenses"), and if, within nine i) or (9ii) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.03(a), the Company shall pay or cause to be paid the applicable Company Termination Fee to Parent (or its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest designee listed on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders 7.03 of the Company immediately preceding Disclosure Letter) by wire transfer of same-day funds to an account designated by Parent in writing (x) in the case of Section 7.03(a)(ii)(A), within two Business Days after such transaction hold less than fifty percent termination, (50%y) in the case of Section 7.03(a)(ii)(B), simultaneously with such termination or (z) in the case of Section 7.03(a)(i), within two Business Days after the consummation of the aggregate equity interests Takeover Proposal referred to therein; it being understood that in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by no event shall the Company of assets representing in excess of fifty percent (50%) of be required to pay or cause to be paid the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyapplicable Company Termination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Tabula Rasa HealthCare, Inc.), Merger Agreement (Tabula Rasa HealthCare, Inc.)
Termination Fee. (i) In If this Agreement is terminated by the event that Company pursuant to Section 8.1(iii)(b), then the Company shall pay to Parent (1or as directed by Parent), by wire transfer of same day funds, (x) $825,000 (the “Termination Fee”) plus (y) all of Parent’s actual and reasonably documented fees and expenses (including legal fees and expenses) incurred by Parent shall terminate and its Affiliates in connection with the transactions contemplated by this Agreement (the “Parent Expenses”) concurrently with, and as a condition precedent to, termination of this Agreement pursuant to Section 8.1.G. 8.1(iii)(b).
(ii) If this Agreement is terminated by Parent pursuant to Section 8.1(ii)(a) (but only if Shareholder Approval is not obtained because of a breach of a Shareholders Agreement) or Section 8.1(iv)(b), then the Company shall pay to Parent (or as directed by Parent), by wire transfer of same day funds, (x) the Termination Fee plus (y) the Parent Expenses within two Business Days after such termination, in each case by wire transfer of same-day funds.
(iii) If this Agreement is terminated by: (a) Parent pursuant to Section 8.1(iv)(a), (provided that the Shareholder Approval shall not have been obtained at the Company Shareholder Meeting) or (b) the Company or Parent pursuant to (x) Section 8.1(ii)(b) (provided that Shareholder Approval shall not have been obtained at the Company Shareholders’ Meeting) or (y) Section 8.1(ii)(a) and (I) prior to such termination (in the case of termination pursuant to Section 8.1(ii)(b) or Section 8.1(iv)(a)) or the Company Shareholders’ Meeting (in the case of termination pursuant to Section 8.1(ii)(a)), a Takeover Proposal shall have been (1) publicly disclosed and not withdrawn (in the case of a termination pursuant to Section 8.1(ii)(a) or Section 8.1(ii)(b)) or (2) this Agreement shall be terminated publicly disclosed or otherwise made or communicated to the Company or the Company Board, and not withdrawn (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (ya termination pursuant to Section 8.1(iv)(a)), and (aII) at or prior to within 12 months following the date of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter have entered into a definitive agreement with respect to any Company Acquisition Takeover Proposal, or any Company Acquisition Takeover Proposal shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be have been consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, in any such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., event the Company shall pay to Parent its costs (by wire transfer of immediately available funds), concurrently with, and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required a condition precedent to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of consummating such transaction; (ii) a sale or other disposition by , the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee plus Parent’s Expenses.
Appears in 2 contracts
Sources: Merger Agreement (Hecla Mining Co/De/), Merger Agreement (Hecla Mining Co/De/)
Termination Fee. (ia) In the event that that:
(1i) Parent shall terminate this Agreement is terminated by the Company or Parent pursuant to Section 8.1.G. 7.01(b)(iii) or Section 7.01(c)(i); provided that (2A) a bona fide Takeover Proposal shall have been publicly made, publicly proposed or otherwise publicly communicated by a third party after the date of this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (ya termination pursuant to Section 7.01(c)(i), (amade known to the Company) at or and prior to such termination, there shall exist or have been proposed an Acquisition Proposal the time this Agreement is terminated and (bB) within nine (9) twelve months after such terminationof the date this Agreement is terminated, the Company shall enter or any of its Subsidiaries consummates any Takeover Proposal or enters into a definitive agreement with respect to any Takeover Proposal and such Takeover Proposal is subsequently consummated (even if after such twelve-month period); provided that, the Takeover Proposal in clause (A) need not be bona fide if the Takeover Proposal that the Company Acquisition ultimately so consummates is with the Person (or any Company Acquisition of its Affiliates) that made the non-bona fide Takeover Proposal; provided further that for purposes of clauses (A) and (B) of this Section 7.03(a)(i), the references to “20%” in the definition of Takeover Proposal shall be consummated, deemed to be references to “50%”; or
(ii) this Agreement is terminated (A) by Parent pursuant to Section 7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii); then, in any such event under clause (i) or (ii) of this Section 7.03(a), the Company shall pay, or cause to be paid, the Company Termination Fee to Parent or its designee by wire transfer of same-day funds so long as Parent has provided the Company with wire instructions for such payment (x) in the case of (1Section 7.03(a)(ii)(A), promptly within two business days after such termination, or (y) in the case of (2Section 7.03(a)(ii)(B), concurrently simultaneously with such termination or (z) in the execution case of a definitive agreement with respect toSection 7.03(a)(i), or within two business days after the consummation of, as applicable, such of the Takeover Proposal referred to therein; it being understood that in no event shall the Company Acquisition, be required to pay or cause to be paid the Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoon more than one occasion.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Regal Rexnord Corp), Merger Agreement (Altra Industrial Motion Corp.)
Termination Fee. (i) In the event that If (A) this Agreement is terminated by (1) either the Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. or 11.01(b)(i) without the Company Shareholder Approval having been obtained, (2) this Agreement shall be terminated (x) Parent pursuant to Section 8.1.B. 11.01(b)(iii) (other than in the circumstances contemplated in the following Section 11.02(b)(ii)) or (y3) Parent pursuant to Section 8.1.D. and, in the case of either (x) or (y11.01(c)(ii), (aB) at or prior to such termination, there a bona fide Acquisition Proposal shall exist or have been proposed an Acquisition Proposal publicly announced or otherwise communicated to the Company Board, senior management of the Company or the Company’s shareholders (and not withdrawn at least two (2) business days prior to the Company Meeting), and (bC) within nine (9) 12 months after of the date of such termination, the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of its Subsidiaries enters into a definitive agreement with respect to, or consummates, an Acquisition Proposal (whether or not the consummation of, same Acquisition Proposal as applicable, such Company Acquisition, Company shall pay that referred to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00above) (provided for the "Termination Fee"purposes of this clause, each reference to “25%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “51%”)., or
(ii) In the event that Parent shall terminate if this Agreement is terminated by Parent pursuant to Section 8.1.F.11.01(c)(i), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with or if this Agreement and is terminated by the transactions contemplated hereby ("Parent's Expenses"Company or Parent pursuant to Section 11.01(b)(iii) at a time when this Agreement was terminable by Parent pursuant to Section 11.01(c)(i), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. andthen, in order to obtain such payment, Parent makes a claim that results each case listed in a judgment against the Company for the amounts set forth in this Section 8.3.B.clauses (i) and (ii) above, the Company shall pay to Parent its costs and expenses in immediately available funds $489,000,000 (including attorneys' fees and expensesthe “Termination Fee”), (x) in connection with the case of clause (ii), within one Business Day after such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred termination and (y) in the event case of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): clause (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders within one Business Day of the Company immediately preceding such transaction hold less than fifty percent (50%) earlier of the aggregate equity interests in the surviving or resulting entity entry into such definitive agreement and consummation of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyAcquisition Proposal.
Appears in 2 contracts
Sources: Transaction Agreement (Banco Santander, S.A.), Transaction Agreement (Webster Financial Corp)
Termination Fee. (a) If, but only if, the Agreement is terminated:
(i) In by either the event that (1) Company or Parent shall terminate this Agreement pursuant to Section 8.1.G. 9.1(b)(i) or (2Section 9.1(b)(iii) this Agreement shall be terminated or by Parent pursuant to Section 9.1(d)(i), and in any such case the Company (x) pursuant to Section 8.1.B. receives or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an has received a Company Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case date of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such prior to termination of this Agreement, Company shall enter into which proposal has been publicly announced and (y) within twelve (12) months of the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement which is later consummated with respect to, a Company Acquisition Proposal, then the Company shall pay, or cause to be paid, to Parent a fee equal to $1,463,000 (the “Termination Fee”) plus, if not previously paid pursuant to Section 9.3(a)(ii) below, the Expense Amount, by wire transfer of same day funds to an account designated by Parent, not later than the consummation ofof such transaction arising from such Company Acquisition Proposal; provided, however, that for purposes of this Section 9.3(a)(i), the references to “fifteen percent (15%)” in the definition of Company Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”; or
(ii) by either the Company or Parent pursuant to Section 9.1(b)(iii), the Company shall pay, or cause to be paid, to Parent the Expense Amount (by wire transfer to an account designated by Parent) within two (2) Business Days of such termination; or
(iii) by the Company pursuant to Section 9.1(c)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent as a condition to the effectiveness of such termination; or
(iv) by Parent pursuant to Section 9.1(d)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee together with the Expense Amount, by wire transfer of same day funds to an account designated by Parent, within two (2) Business Days of such termination.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that:
(i) under no circumstances shall the Company be required to pay the Termination Fee or Expense Amount, as applicable, such earlier than one (1) full Business Day after receipt of appropriate wire transfer instructions from Parent; and
(ii) under no circumstances shall the Company Acquisition, then Company shall be required to pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoor Expense Amount, as applicable, on more than one occasion.
(iiic) The Company Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3.B. 9.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Payment is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and thatresources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 9.3 and, in order to obtain such payment, Parent makes commences a claim suit that results in a judgment against the Company for the amounts payment of any amount set forth in this Section 8.3.B.9.3, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) Expenses in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime annual rate of interest as reported by SunTrust Bank, N.A. in effect on five percent (5%) for the period from the date such payment was required to be made. Payment of made through the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in date such payment was actually received, or such lesser rate as is the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions maximum permitted by applicable Law.
(other than the transactions contemplated by this Agreement): d) (i) a mergerIf the Company is required to pay to Parent the Termination Payment, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving such Termination Payment shall be paid into escrow on the date such payment is required to be paid by the Company pursuant to which this Agreement by wire transfer of immediately available funds to an escrow account designated in accordance with this Section 9.3(d). In the shareholders of event that the Company immediately preceding such transaction hold less than fifty percent is obligated to pay Parent the Termination Payment, the amount payable to Parent in any tax year of Parent shall not exceed the lesser of (50%i) the Termination Payment, and (ii) the sum of (A) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Section 856(c)(2) and (3) of the aggregate equity interests in Code for the surviving or resulting entity relevant tax year, determined as if the payment of such transaction; (iiamount did not constitute income described in Sections 856(c)(2) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%856(c)(3) of the aggregate fair market value Code (“Qualifying Income”) and Parent has $1,000,000 of income from unknown sources during such year which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in each case, as determined by Parent’s independent accountants, plus (B) in the event Parent receives either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS as described below in this Section 9.3(d) or (y) an opinion from Parent’s outside counsel as described below in this Section 9.3(d), an amount equal to the excess of the Company's business immediately prior to such sale or Termination Payment less the amount payable under clause (iiiA) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyabove.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
Termination Fee. (ia) In the event that that:
(1i) Parent shall terminate this Agreement is terminated (A) by either party pursuant to Section 8.1.G. 8.1(c) at a time when all the conditions set forth in Article VI (other than those set forth in Section 6.1(f) and 6.2(f)) have been satisfied or waived, other than those conditions that by their terms are to be satisfied at the Closing, but in each case which would be capable of being satisfied if the Closing Date were the date of such termination, (B) by either party pursuant to Section 8.1(d) due to the Merger Agreement having been terminated, or (2C) this by Purchaser pursuant to Section 8.1(a); and
(ii) the Merger Agreement is also terminated (A) under circumstances where a Company Termination Fee is payable by Parent to the Retail Buyer pursuant to Section 7.02(b)(i) or Section 7.02(b)(ii) of the Merger Agreement or (B) by the mutual agreement of the parties thereto and, in connection with such termination, Retail Buyer or any of its Affiliates receive any payment or fee from Parent or any of its Affiliates (whether pursuant to the terms of the Merger Agreement or otherwise); then, concurrently upon Parent’s payment of the Company Termination Fee to the Retail Buyer pursuant to the Merger Agreement, Parent shall be terminated pay to Purchaser an amount equal to (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and$14,000,000, in the case of either the foregoing clause (x) A), or (y) ten percent (10%) of the aggregate payment or fee referred to in the foregoing clause (ii)(B), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of the foregoing clause (1B), promptly after as applicable (the “Termination Fee”); provided, however, that no Termination Fee shall be payable if Purchaser or any of its Affiliates is participating as a bank partner in such terminationCompeting Proposal. Each of the parties acknowledges that the Termination Fee is not intended to be a penalty, or but rather is liquidated damages in a reasonable amount that will compensate Purchaser in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount circumstances in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds is due and payable and which do not involve fraud or intentional breach of this Agreement by Parent or Seller, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount of Parent's Expenses previously reimbursed by Company pursuant heretowould otherwise be impossible to calculate with precision.
(iiib) The Company Each of the parties acknowledges that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, Parent the parties would not enter into this Agreement; accordingly. Accordingly, if the Company Parent fails to pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. and, in order 8.3(a) or Purchaser fails to obtain such payment, Parent makes a claim that results pay in a judgment against timely manner any amount due pursuant to Section 8.3(a), then (i) the Company party required to make such payment shall reimburse the party to whom such payment is to be made for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its all costs and expenses (including attorneys' disbursements and reasonable fees and expensesof counsel) incurred in the collection of such overdue amount, including in connection with any related claims, actions or proceedings commenced and (ii) the party required to make such suit, together with payment shall pay interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on such amount from and including the date payment of such amount was due to but excluding the date of actual payment was required at a rate equal to be made. Payment the Federal Funds Rate.
(c) In the event that Purchaser receives full payment of the fees described in this Termination Fee pursuant to Section 8.3.B. shall not be in lieu of damages incurred 8.3(a), then except in the event case of fraud or intentional breach of this Agreement. For Agreement by Parent or Seller, the purposes receipt of this Agreementthe Termination Fee shall be the sole and exclusive remedy against Parent, "Company Acquisition" shall mean Seller, Retail Buyer and their respective Affiliates for any and all Losses suffered or incurred by Purchaser or any of its Affiliates or any other person in connection with this Agreement (and the following transactions (other than termination hereof) and the transactions contemplated hereby (and the abandonment hereof) or any matter forming the basis of such termination, whether such Losses are based on contract, tort, or strict liability, by this Agreement): (i) a mergerthe enforcement of any assessment, consolidationby any legal or equitable proceeding, business combinationby virtue of any statute, recapitalization, liquidation, dissolution regulation or similar transaction involving the Company pursuant to which the shareholders applicable Law or otherwise and whether by or through attempted piercing of the Company immediately preceding such transaction hold less than fifty percent (50%) corporate or partnership veil, by or through a claim by or on behalf of the aggregate equity interests in the surviving a party hereto or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any another person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyotherwise.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Cabelas Inc), Sale and Purchase Agreement (Cabela's Master Credit Card Trust)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two One Million Three Hundred Fifty Thousand and No/100 Dollars ($250,000.001,300,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Infocure Corp), Merger Agreement (Medical Dynamics Inc)
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. or 7.1(d)(ii) (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (yParent Adverse Recommendation Change), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company then Parent shall pay to the Company the Parent an amount Termination Fee as promptly as possible (but in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00any event within three Business Days) (the "Termination Fee")following such termination.
(ii) In the event that Parent shall terminate this Agreement is terminated by Parent pursuant to Section 8.1.F.7.1(c)(ii) (Company Adverse Recommendation Change), then the Company shall pay to Parent the Company Termination Fee as promptly reimburse Parent for Parent's costs as possible (but in any event within three Business Days) following such termination.
(iii) In the event that (A) prior to the Company Stockholders’ Meeting, a Company Acquisition Proposal is publicly proposed or otherwise communicated to the Company Stockholders or the Company Board and expenses in connection with not withdrawn at least five (5) Business Days prior to the Company Stockholders Meeting and (B) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b)(i) (Termination Date) or Section 7.1(b)(iii) (No Company Stockholder Approval) or by Parent pursuant to Section 7.1(c)(i) (Company Terminable Breach) and concurrently with or within 12 months after any such termination, the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of Subsidiaries enters into a definitive agreement with respect to, or otherwise consummates, any Company Acquisition Proposal (substituting 50% for the consummation of, as applicable, such Company Acquisition15% threshold set forth in the definition of “Acquisition Proposal” for all purposes under this Section 7.3(b)(iii)), then the Company shall pay to Parent an amount in cash equal to the amount by which the Company Termination Fee exceeds as promptly as possible (but in any event within three Business Days) following the amount earlier of Parent's Expenses previously reimbursed by the entry into such definitive agreement or consummation of such Company pursuant heretoAcquisition Proposal.
(iiiiv) The In the event that (A) prior to the Parent Stockholders’ Meeting, a Parent Acquisition Proposal is publicly proposed or otherwise communicated to the Parent Stockholders or the Parent Board and not withdrawn at least five (5) Business Days prior to the Parent Stockholders Meeting and (B) this Agreement is terminated by Parent or the Company acknowledges pursuant to Section 7.1(b)(i) (Termination Date) or Section 7.1(b)(iv) (No Parent Stockholder Approval) or by the Company pursuant to Section 7.1(d)(i) (Parent Terminable Breach) and concurrently with or within 12 months after any such termination, Parent or any Parent Subsidiaries enters into a definitive agreement with respect to, or otherwise consummates, any Parent Acquisition Proposal (substituting 50% for the 15% threshold set forth in the definition of “Acquisition Proposal” for all purposes under this clause (iv)), then Parent shall pay to the Company the Parent Termination Fee as promptly as possible (but in any event within three Business Days) following the earlier of the entry into such definitive agreement or consummation of such Parent Acquisition Proposal.
(v) In the event that (A) this Agreement is terminated by either party pursuant to (1) Section 7.1(b)(i) (Termination Date) and at the agreements contained time of such termination, the Company Stockholder Approval shall not have been obtained or (2) Section 7.1(b)(iii) (No Company Stockholder Approval) and (B) Parent would have been permitted to terminate this Agreement pursuant to Section 7.1(c)(ii) (Company Adverse Recommendation Change), then the Company shall pay to Parent the Company Termination Fee as promptly as possible (but in any event within three Business Days) following such termination.
(vi) In the event that (A) this Agreement is terminated by either party pursuant to (1) Section 7.1(b)(i) (Termination Date) and at the time of such termination, the Parent Stockholder Approval shall not have been obtained or (2) Section 7.1(b)(iv) (No Parent Stockholder Approval) and (B) the Company would have been permitted to terminate this Agreement pursuant to Section 7.1(d)(ii) (Parent Adverse Recommendation Change), then Parent shall pay to the Company the Parent Termination Fee as promptly as possible (but in any event within three Business Days) following such termination.
(vii) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(iii) (Company Superior Proposal), then the Company shall contemporaneously with such termination pay to Parent the Company Termination Fee.
(viii) In the event that this Agreement is terminated by the Parent pursuant to Section 7.1(c)(iii) (Parent Superior Proposal), then the Parent shall contemporaneously with such termination pay to Company the Parent Termination Fee.
(ix) As used in this Section 8.3.B. are an integral part Agreement, “Company Termination Fee” shall mean a cash amount equal to $30,500,000, and “Parent Termination Fee” shall mean a cash amount equal to $61,000,000. Each of the Company Termination Fee and the Parent Termination Fee is referred to herein as a “Termination Fee.” As used in this Agreement, “Expenses” shall mean a cash amount equal to $5,100,000, which includes reimbursement for fees and expenses incurred or paid by or on behalf of the party receiving payment thereof and its Affiliates in connection with the Mergers or the other transactions contemplated by this Agreement, or related to the authorization, preparation, negotiation, execution and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes performance of this Agreement, "Company Acquisition" shall mean any in each case including all reasonable and documented fees and expenses of law firms, commercial banks, investment banking firms, financing sources (including the following transactions (other than the transactions contemplated by this Agreement): (i) a mergerDebt Financing Sources), consolidationaccountants, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior experts and consultants to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyparty and its Affiliates.
Appears in 2 contracts
Sources: Merger Agreement (Crescent Energy Co), Merger Agreement (Silverbow Resources, Inc.)
Termination Fee. (ia) In the event The parties agree that (1) Parent shall terminate if this Agreement pursuant is terminated by Parent in accordance with Section 7.1(e) or by the Company in accordance with Section 7.1(f), then the Company shall pay (or cause to Section 8.1.G. be paid) to Parent (or (2its designee) this Agreement shall be terminated (x) pursuant prior to Section 8.1.B. or (y) pursuant to Section 8.1.D. andconcurrently with such termination, in the case of either a termination by the Company, or within two (x2) Business Days thereafter, in the case of a termination by Parent, a termination fee equal to eighteen million dollars ($18,000,000) (the “Company Termination Fee”).
(b) The parties agree that (i) if this Agreement is terminated in accordance with Section 7.1(b), Section 7.1(d) or (y)Section 7.1(i) and, (a) at or prior to the date of such termination, there shall exist or have been proposed an a Company Acquisition Proposal is (A) made public by the Company or any other Person and (bB) not withdrawn, and (ii) within nine twelve (912) months after such termination, termination (A) the Company shall enter enters into a definitive agreement with respect to any Company Acquisition Proposal or (B) any Company Acquisition Proposal is consummated, then the Company shall pay (or cause to be paid) the Company Termination Fee to Parent (or its designee), prior to or concurrently therewith. For the avoidance of doubt, the Company shall not be obligated to pay the Company Termination Fee with respect to any Company Acquisition Proposal unless such Company Acquisition Proposal is consummated. For purposes of this Section 7.3(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, except that the references to “20% or more” shall be consummateddeemed to be references to “more than 50%.”
(c) The parties agree that if this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d), thenthen the Company shall reimburse Parent for all reasonable out-of-pocket fees and expenses incurred or paid by Parent or Merger Sub in connection with the negotiation of this Agreement or the consummation of any of the transactions contemplated by this Agreement, including all due diligence and financing costs, filing fees, printing fees and fees and expenses of law firms, commercial banks, investment banking firms, accountants, experts and consultants, not to exceed nine million dollars ($9,000,000) (“Parent Expenses”). Parent Expenses will be reimbursed within ten (10) days after presentation by Parent of a ▇▇▇▇ (which Parent may do within ninety (90) days after this Agreement is terminated) that sets forth in reasonable detail the amount and nature of each item of expense for which reimbursement is sought. If Parent becomes entitled to receive a Company Termination Fee by reason of Section 7.3(b), the amount paid by the Company as expense reimbursement under this Section 7.3(c) will be credited against the Company Termination Fee.
(d) The parties agree that if this Agreement is terminated by the Company in accordance with Section 7.1(h), then Parent shall pay (or cause to be paid) to the Company (or its designee) prior to or concurrently with such termination, in the case of (1), promptly after such terminationa termination by Parent, or within two (2) Business Days thereafter, in the case of (2)a termination by the Company, concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash termination fee equal to Two Hundred Fifty Thousand and No/100 Dollars forty million dollars ($250,000.0040,000,000) (the "“Parent Termination Fee"”).
(e) The parties agree that (i) if this Agreement is terminated in accordance with Section 7.1(b), Section 7.1(g) or Section 7.1(j) and, prior to the date of such termination, a Parent Acquisition Proposal is (A) made public by Parent or any other Person and (B) is not withdrawn, and (ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby within twelve ("Parent's Expenses"), and if, within nine (912) months of after such termination of this Agreement, Company shall enter (A) Parent enters into a definitive agreement with respect to any Company Parent Acquisition Proposal or (B) any Company Parent Acquisition involving Company shall be Proposal is consummated, then Parent shall pay (or cause to be paid) the Parent Termination Fee to the Company (or its designee), prior to or concurrently therewith. For the avoidance of doubt, Parent shall not be obligated to pay the Parent Termination Fee with respect to any Parent Acquisition Proposal unless such Parent Acquisition Proposal is consummated. For purposes of this Section 7.3(e), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, except that the references to “20% or more” shall be deemed to be references to “more than 50%.”
(f) The parties agree that if this Agreement is terminated by Parent or the Company pursuant Section 7.1(g), then Parent shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred or paid by the Company and any Company Subsidiaries in connection with the execution negotiation of a definitive agreement with respect to, this Agreement or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part any of the transactions contemplated by this Agreement, including all due diligence and financing costs, filing fees, printing fees and fees and expenses of law firms, commercial banks, investment banking firms, accountants, experts and consultants, not to exceed fifteen million dollars ($15,000,000) (“Company Expenses”). Company Expenses will be reimbursed within ten (10) days after presentation by the Company of a ▇▇▇▇ (which the Company may do within ninety (90) days after this Agreement is terminated) that sets forth in reasonable detail the amount and nature of each item of expense for which reimbursement is sought.
(g) The Company, Parent and Merger Sub acknowledge that the agreements contained in this Section 7.3 are an integral part of this Agreement and that, without these agreementsthis Section 7.3, the Company, Parent and Merger Sub would not enter have entered into this Agreement; accordingly. Accordingly, if the Company or Parent fails to promptly pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.7.3, the Company or Parent, as applicable, shall pay to Parent its the non-breaching party all reasonable fees, costs and expenses of enforcement (including reasonable attorneys' ’ fees and expenses) as well as reasonable expenses incurred in connection with any action initiated by such suitnon-breaching party), together with interest on the amounts set forth in this Section 8.3.B. amount of the Company Termination Fee, the Parent Termination Fee, any Company Expenses or any Parent Expenses, as applicable, at the prime lending rate of interest as reported by SunTrust Bankpublished in The Wall Street Journal, N.A. in effect on the date such payment was is made.
(h) For the avoidance of doubt, (i) in no event shall Parent or the Company be required to be made. Payment pay the Parent Termination Fee or Company Termination Fee, as applicable, on more than one (1) occasion, (ii) while Parent and Merger Sub may pursue, in the alternative and at their sole discretion, both a grant of specific performance in accordance with Section 8.14 and the payment of the fees described Company Termination Fee under Section 7.3, under no circumstances shall Parent and Merger Sub be permitted or entitled to receive both a grant of specific performance and the Company Termination Fee and (iii) while the Company may pursue, in this the alternative and at its sole discretion, both a grant of specific performance in accordance with Section 8.3.B. 8.14 and the payment of the Parent Termination Fee under Section 7.3, under no circumstances shall not the Company be in lieu permitted or entitled to receive both a grant of damages incurred specific performance and the Parent Termination Fee. The payment by the Company of the Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b) and, to the extent applicable, any amounts payable under Section 7.3(c) or Section 7.3(g), shall be the sole and exclusive remedy of Parent, Merger Sub and their respective affiliates and Representatives in the event of termination of this Agreement under circumstances requiring the payment of a Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b); provided that no such payment shall relieve the Company of any liability or damages to Parent or Merger Sub resulting from any material breach of this AgreementSection 5.3. For the purposes of this Agreement, "Company Acquisition" shall mean any The payment by Parent of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company Parent Termination Fee pursuant to which Section 7.3(d) or Section 7.3(e) and, to the shareholders extent applicable, any amounts payable under Section 7.3(f) or Section 7.3(g), shall be the sole and exclusive remedy of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests and its affiliates and Representatives in the surviving event of termination of this Agreement under circumstances requiring the payment of a Parent Termination Fee pursuant to Section 7.3(d) or resulting entity Section 7.3(e); provided that no such payment shall relieve Parent or Merger Sub of such transaction; (ii) a sale any liability or other disposition by damages to the Company resulting from any material breach of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanySection 5.4.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate of termination of this Agreement by the Company pursuant to Section 8.1.G. 7.1(g), the Company shall make payment to Parent of the Termination Fee.
(b) In the event of termination of this Agreement by Parent pursuant to Section 7.1(f), so long as at the time of such termination Parent is not in material breach of any representation, warranty or material covenant contained herein, the Company shall make payment to Parent of the Termination Fee.
(2c) If (i) this Agreement shall be is terminated (x) by either party pursuant to Section 8.1.B. 7.1(b) or (y) by Parent pursuant to Section 8.1.D. and7.1(e) if the breach giving rise to such termination was knowing or intentional and (ii) at the time of such termination Parent is not in material breach of any representation, warranty or material covenant contained herein and (iii) prior to the Stockholder Meeting (in the case of either (xtermination pursuant to Section 7.1(b)) or the date of termination (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement termination pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"7.1(e)), an Acquisition Proposal has been publicly announced, disclosed or communicated and if, (iv) within nine twelve (912) months of such termination of this Agreement, the Company shall consummate or enter into a definitive any agreement with respect to any Company an Acquisition or any Company Acquisition involving Proposal, the Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay make payment to Parent an amount in cash equal to the amount by which of the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoFee.
(iiid) Any fee payable pursuant to this Section 7.2 shall be made by wire transfer of immediately available funds within two (2) Business Days after notice of demand for payment. The Company acknowledges and Parent acknowledge that the agreements contained in this Section 8.3.B. 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if . The amount payable by the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, 7.2 constitutes liquidated damages and not a penalty and shall be the sole remedy of Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of termination of this Agreement on the bases specified in this Section 7.2. Nothing in this Agreement shall in any way limit the right of the Company to seek a remedy at law or in equity in the event of a breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated Agreement by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyParent.
Appears in 1 contract
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement is terminated (A) by Parent pursuant to Section 8.1.G. 8.01(c)(ii) or (2B) this Agreement shall be terminated (x) by the Company pursuant to Section 8.1.B. 8.01(d)(ii), then the Company shall pay Parent the Company Termination Fee. If the Company Termination Fee is payable pursuant to clause (A) of the preceding sentence, the Company Termination Fee shall be paid within four (4) business days after the date of such termination and if the Company Termination Fee is payable pursuant to clause (B) of the preceding sentence, the Company Termination Fee shall be paid as described in Section 8.01(d)(ii), in each case, by wire transfer of immediately available funds to an account designated by Parent in writing (it being understood that in no event shall the Company be required to pay the Company Termination Fee more than once).
(b) If this Agreement is terminated by either Parent or the Company pursuant to (yi) Section 8.01(b)(i) and at the time of such termination pursuant to Section 8.1.D. and, in 8.01(b)(i) the case of either (x) Company Shareholders Meeting has not been held or (y), ii) Section 8.01(b)(iii) and (aA) at or any time after the date of this Agreement and prior to such termination, there a Takeover Proposal shall exist or have been proposed an Acquisition Proposal publicly announced or publicly made known to the Company Board or the shareholders of the Company and not withdrawn and (bB) within nine twelve (912) months after of such termination, the Company shall enter either consummates a Takeover Proposal or enters into a definitive agreement with respect to any consummate a Takeover Proposal and the Company Acquisition thereafter consummates such Takeover Proposal (whether or any Company Acquisition shall be consummated, then, in the case of not within such twelve (112) month period), promptly after such termination, or in then the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Company Termination Fee"; provided that for purposes of this Section 8.03(b), the references to “twenty percent (20%)” in the definition of Takeover Proposal shall be deemed to be references to “fifty percent (50%).” If the Company Termination Fee is payable pursuant to this Section 8.03(b), the Company Termination Fee shall be paid upon the consummation of such Takeover Proposal by wire transfer of immediately available funds to an account designated by Parent in writing (it being understood that in no event shall the Company be required to pay the Company Termination Fee more than once).
(iic) In Each of the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company parties acknowledges that the agreements contained in this Section 8.3.B. 8.03 are an integral part of the transactions contemplated by this AgreementTransactions, and that, that without these agreements, Parent the other parties would not enter into this Agreement; accordingly, if the Company fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.03, and, in order to obtain such the payment, Parent makes a claim that commences an Action which results in a judgment against the Company for the amounts payment set forth in this Section 8.3.B.8.03, the Company shall pay to Parent for its reasonable and documented costs and expenses (including reasonable and documented attorneys' fees and expenses’ fees) in connection with such suitAction, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime rate of interest as reported by SunTrust Bank, N.A. published in The Wall Street Journal in effect on the date such payment was required to be made. Payment of made through the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding date such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypayment was actually received.
Appears in 1 contract
Termination Fee. (ia) In the event The parties hereto agree that (1) Parent shall terminate if this Agreement is terminated pursuant to Section 8.1.G. 7.1(e), or (2) this Agreement Section 7.1(f), then the Company shall be terminated (x) pursuant pay to Section 8.1.B. Parent prior to or (y) pursuant to Section 8.1.D. andconcurrently with such termination, in the case of either a termination by the Company, or within two (2) Business Days thereafter, in the case of a termination by Parent, the Termination Fee. The “Termination Fee” means $550,000.
(b) The parties hereto agree that if (x) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(d) or by Parent pursuant to Section 7.1(g) based solely on a breach by the Company of a covenant or agreement contained in this Agreement, (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal has been announced publicly or made to the Company after the date hereof (but prior to the termination of this Agreement) and such Acquisition Proposal has not been withdrawn prior to the termination of this Agreement, and (bz) the Company enters into a Company Acquisition Agreement or consummates an Acquisition Proposal within nine (9) twelve months after such termination, then the Company shall enter pay the Termination Fee to Parent on the earlier of the date of entry into such Company Acquisition Agreement or consummation of such Acquisition Proposal. For purposes of this Section 7.3(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(h)(i), except that the references to “twenty percent (20%)” shall be deemed to be references to “fifty percent (50%)”.
(c) The parties hereto agree that if this Agreement is terminated pursuant to Section 7.1(g) based solely on a breach by the Company of a covenant or agreement contained in this Agreement, and within six (6) months after the date of such termination the Company enters into a definitive agreement with a Third Party in respect to any of an Acquisition Proposal (regardless of when the Company received such Acquisition or any Company Acquisition shall be consummated, then, in the case of (1Proposal), promptly after such termination, or in then the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F.reasonable costs, then Company shall promptly reimburse Parent for Parent's costs fees and expenses incurred by Parent, its affiliates and their Representatives in connection with this Agreement the investigation, due diligence, negotiation and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination documentation of this Agreement, such amount not to exceed $400,000 in the aggregate (the “Expense Reimbursement”), provided, however, that in addition to the Expense Reimbursement, if the Company had willfully breached Section 5.3 in any material respect, then in the circumstances in which an Expense Reimbursement shall be paid, the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with also pay an additional $200,000 (“Additional Expense Amount”). In the execution of a definitive agreement with respect to, or event the consummation of, as applicable, such Company Acquisition, then Company shall pay Expense Reimbursement is paid to Parent an amount in cash equal to the amount by which and the Termination Fee exceeds thereafter becomes payable, the Termination Fee otherwise payable shall be reduced by the amount of Parent's Expenses previously reimbursed by Company pursuant heretosuch Expense Reimbursement and Additional Expense Amount, if any.
(iiid) The Company All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent, or in the absence of such designation, an account established for the sole benefit of Parent.
(e) Each of the parties acknowledges that (i) the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this Agreement, and that(ii) the damages resulting from termination of this Agreement under circumstances in which the Termination Fee or Expense Reimbursement is payable pursuant to this Section 7.3 are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Parent and Merger Sub for the efforts and resources expended and opportunities foregone while negotiating this Agreement in in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and (iii) without these agreements, Parent Parent, Merger Sub and the Company would not enter into this Agreement; accordingly. Accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. Termination Fee when due, and, in order to obtain such payment, Parent makes commences a claim Proceeding that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.Termination Fee, the Company shall pay to Parent its Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the Prime Rate and (B) Parent’s costs and expenses (including reasonable attorneys' fees and expenses’ fees) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this AgreementProceeding. For the purposes avoidance of doubt, in no event shall the Company be required to pay the Termination Fee on more than one occasion
(f) In circumstances where the Termination Fee, Expense Reimbursement or Additional Expense Amount is payable pursuant to this AgreementSection 7.3, "Parent’s receipt of the Termination Fee, Expense Reimbursement or Additional Expense Amount (as applicable) from or on behalf of the Company Acquisition" shall mean be Parent’s and Merger Sub’s sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Laws or otherwise) against the Company and any of its former, current or future direct or indirect equity holders, general or limited partners, controlling persons, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees for all losses and damages suffered as a result of the following transactions (failure of the Merger or the other than the transactions contemplated by this Agreement): (i) a mergerAgreement to be consummated and for any breach or failure to perform hereunder or otherwise, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity and upon payment of such transaction; (ii) a sale amount, no such Person shall have any further liability or other disposition by obligation relating to or arising out of this Agreement or the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companytransactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Genvec Inc)
Termination Fee. In the event this Agreement is terminated (a) by the Company or Acquirer pursuant to Section 7.1(b) following the Extended Termination Date if, on the date of such termination (i) a Specified Circumstance exists, (ii) each of the conditions set forth in Sections 6.1(a), 6.1(b) (other than with respect to the Specified Circumstance), 6.3(a), 6.3(b), 6.3(e), 6.3(f), 6.3(g), 6.3(h), or 6.3(i) is satisfied or has been validly waived (other than the conditions that, by their terms, are intended to be satisfied at the Closing, which conditions, as of the date of such termination, only need to be capable of being satisfied at the Closing), and (iii) the Company has delivered to Acquirer written notice in which the Company has irrevocably waived the conditions to closing contained in each of Sections 6.1(b) and 6.1(c) and certified that it is ready and willing to close the First Merger (it being understood that if Acquirer wishes to terminate this Agreement in accordance with this Section 7.1(b), Acquirer shall notify the Company and provide the Company with a reasonable amount of time to deliver such certification prior to the termination by Acquirer); or (b) pursuant to Section 7.1(c) based on an Order arising as a result of a challenge by a Governmental Entity under any Antitrust Law in any Specified Jurisdiction, then Acquirer shall, within two Business Days after the date of such termination (such date, the “Termination Fee Due Date”), (i) pay or cause to be paid to the Company $1,000,000,000 in cash by wire transfer of same day funds (“Cash Termination Fee”) and (ii) in Acquirer’s sole discretion, either (A) pay or cause to be paid to the Company another $1,000,000,000 in cash by wire transfer of same day funds or (B) cause a number of shares of Parent Common Stock equal to $1,000,000,000 divided by the Parent Stock Price for Termination to be issued to the Company (“Stock Termination Fee” and collectively, the “Termination Fee”); provided, however, that in the event of a termination by Acquirer under Section 7.1(b) after the Extended Termination Date, Acquirer shall not be obligated to pay the Termination Fee under this Section 7.3 if the Company’s failure to perform any covenant or agreement in Section 5.4(a), Section 5.4(b) or Section 5.4(d) was the principal cause of, or directly resulted in, the failure of the Closing to occur on or before the Extended Termination Date. In the event that (1) Acquirer is required to pay the Termination Fee and the Stock Termination Fee consists of shares of Parent Common Stock, Acquirer shall terminate file an immediately effective registration statement under the Securities Act of 1933 for the Company’s resale of the shares of Parent Common Stock required to be delivered as part of the Termination Fee according to the terms and subject to the conditions set forth on Schedule 7.3. Notwithstanding any other provision of this Agreement to the contrary, the Company’s sole and exclusive remedy if either Acquirer or the Company terminates this Agreement pursuant to Section 8.1.G. 7.1(b) after the Extended Termination Date or (2) this Agreement Section 7.1(c), shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, receipt of the Termination Fee in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently accordance with the execution of a definitive agreement with respect toterms hereof, and upon Acquirer’s or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate Company’s termination of this Agreement pursuant to Section 8.1.F.7.1(b) after the Extended Termination Date or Section 7.1(c) and receipt of the Termination Fee, then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummatedprecluded from any other remedy against Parent, then concurrently with Acquirer and their respective Affiliates at law or in equity or otherwise. Parent and the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges acknowledge that the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this Agreement, Agreement and the Transactions and that, without these agreements, Parent neither (x) any of Parent, Acquirer or Merger Sub, on the one hand, nor (y) the Company, on the other hand, would not enter into this Agreement; accordingly, if . In the Company fails event that Parent shall fail to pay in a timely manner the amounts due Termination Fee required pursuant to this Section 8.3.B. and7.3 when due, in order to obtain such paymentTermination Fee, Parent makes a claim that results in a judgment against as the Company case may be, shall accrue interest (based on the aggregate value thereof) for the amounts period commencing on the date such Termination Fee became past due, at the rate of interest per annum equal to the “Prime Rate” as set forth on the date such payment became past due in this Section 8.3.B.The Wall Street Journal “Money Rates” column. In addition, the Company if Acquirer shall fail to pay such Termination Fee when due, Acquirer shall also pay to Parent its the Company, as applicable, all of the Company’s costs and expenses (including attorneys' fees and expenses’ fees) incurred by such other party in connection with efforts to collect such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee.
Appears in 1 contract
Termination Fee. Any provision in this Agreement to the contrary notwithstanding:
(ia) In the event that:
(i) after the date of this Agreement, (A) any Alternative Proposal (substituting fifty percent (50%) for the fifteen percent (15%) threshold set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”), or intention to make a Qualifying Transaction, is publicly proposed or publicly disclosed prior to, and not withdrawn at least two Business Days prior to, the Company Meeting (or prior to termination of this Agreement if there has been no Company Meeting), (B) this Agreement is terminated by Parent pursuant to Section 7.1(f) or by Parent or the Company pursuant to Section 7.1(b) or Section 7.1(d) and (C) concurrently with or within 12 months after such termination, the Company shall have entered into a definitive agreement providing for a Qualifying Transaction or shall have completed a Qualifying Transaction (which, in each case set forth in this clause (C), need not be the same Qualifying Transaction that was made, disclosed or communicated prior to termination of this Agreement);
(1ii) Parent shall terminate have validly terminated this Agreement pursuant to Section 8.1.G. or 7.1(g); or
(2iii) the Company shall have validly terminated this Agreement shall be terminated (x) pursuant to Section 8.1.B. 7.1(h), then, in any such event, the Company shall pay to Parent (or, at Parent’s direction, an Affiliate of Parent) a fee of $133 million in cash (the “Termination Fee”), by wire transfer of same day funds to one or (y) pursuant more accounts designated by Parent, such payment to Section 8.1.D. andbe made, in the case of either a termination referenced in clause (xi) or (y)above, (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, thenupon consummation of the Qualifying Transaction, in the case of clause (1)ii) above, promptly within three Business Days after such terminationtermination or, or in the case of clause (2)iii) above, in advance of or concurrently with the execution of a definitive agreement with respect to, or termination by the consummation of, as applicable, such Company Acquisition, pursuant to Section 7.1(h); it being understood that in no event shall the Company shall be required to pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")Fee on more than one occasion.
(iib) In Anything to the event that Parent shall terminate contrary in this Agreement notwithstanding, except in the case of fraud, if the Company pays the Termination Fee pursuant to this Section 8.1.F.7.3, then such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall promptly reimburse Parent for Parent's costs and expenses in connection with have any further liability or obligation relating to or arising out of this Agreement and or the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) hereby. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, Parent the parties would not enter into this Agreement; accordinglyAgreement and that any amounts payable pursuant to this Section 7.3 do not constitute a penalty. Accordingly, if the Company fails to promptly pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. and7.3, the Company shall also pay any costs and expenses (including reasonable legal fees and expenses) incurred by Parent or Merger Sub in order connection with a legal action to obtain such payment, Parent makes a claim enforce this Agreement that results in a judgment for such amount against the Company for the amounts set forth in Company. Any amount not paid when due pursuant to this Section 8.3.B., 7.3 shall bear interest from the Company shall pay date such amount is due until the date paid at a rate equal to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at 2% plus the prime rate of interest as reported by SunTrust Bank, N.A. published in The Wall Street Journal in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypayment.
Appears in 1 contract
Sources: Merger Agreement (CST Brands, Inc.)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) If this Agreement shall be terminated pursuant to:
(i) Section 8.1(b)(i), 8.1(b)(ii), 8.1(d)(i) or 8.1(d)(ii)(B) through (E) and (x) pursuant at any time after the date hereof and before such termination a Takeover Proposal shall have been publicly announced or otherwise communicated to Section 8.1.B. or the Company’s Board of Directors and (y) pursuant to Section 8.1.D. and, in the case of either within twelve (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (912) months after such terminationof the termination of this Agreement, the Company shall enter enters into a definitive agreement with any third party with respect to any Company Acquisition a Takeover Proposal or any such transaction involving a Takeover Proposal is consummated; or
(ii) Section 8.1(c)(ii) or 8.1(d)(ii)(A) hereof, then the Company Acquisition shall be consummated, then, (1) in the case of termination pursuant to clause (1i) of this Section 8.4(a), promptly after upon the earlier to occur of the execution of such terminationdefinitive agreement and such consummation, or (2) in the case of (2termination pursuant to Section 8.1(d)(ii)(A), concurrently with not later than the execution close of business on the Business Day following such termination or (3) in the case of termination pursuant to Section 8.1(c)(ii), on the date of termination, pay Parent a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent non-refundable fee in an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars twenty nine million dollars ($250,000.0029,000,000) (the "“Termination Fee"”), payable by wire transfer of immediately available funds to an account designated in writing to the Company by Parent. For purposes of this paragraph (a), “Takeover Proposal” shall have the meaning assigned to such term in Article I, except that all references to “10%” shall be changed to “50%”.
(iib) In the event that Parent shall terminate If this Agreement is terminated pursuant to Section 8.1.F.8.1(d)(i), then the Company shall promptly reimburse Parent for Parent's costs all its fees and expenses (including attorney’s fees) incurred in connection with this Agreement herewith and the transactions contemplated hereby ("Parent's Expenses"the “Company Expense Reimbursement Amount”) up to a maximum amount of five million dollars ($5,000,000), and if, within nine which reimbursement shall be made in cash not later than the close of business on the fifth (95th) months Business Day following the later of (i) such termination and (ii) Parent’s delivery to the Company of this Agreementreasonable back-up documentation related to such fees and expenses. If, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution following receipt by Parent of a definitive agreement with respect toCompany Expense Reimbursement Amount, or the consummation ofTermination Fee becomes payable pursuant to Section 8.4(a)(i), as applicable, such Company Acquisition, then the Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds less the amount of Company Expense Reimbursement Amount actually paid by the Company to Parent's Expenses previously reimbursed by Company pursuant hereto.
(iiic) The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 8.4 are an integral part of the transactions contemplated by in this Agreement, that the damages resulting from termination of this Agreement where a Termination Fee or the Company Expense Reimbursement Amount is payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 8.4(a) and (b) are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay in a timely manner the amounts due pursuant to this Section 8.3.B. Termination Fee or the Company Expense Reimbursement Amount, and, in order to obtain such payment, payment Parent makes commences a claim that suit which results in a judgment against the Company for the amounts set forth in this Section 8.3.B.Termination Fee or the Company Expense Reimbursement Amount, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expensesattorney’s fees) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. amount of the Termination Fee at a rate equal to the prime rate of interest as reported announced from time to time by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyJ▇ ▇▇▇▇▇▇ C▇▇▇▇ Bank plus 3% per annum.
Appears in 1 contract
Sources: Merger Agreement (TBC Corp)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (ySection 7.1(h), then the Company, shall pay, or cause to be paid, to the SPAC, within thirty (a30) at or prior to days of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the SPAC.
(iib) In the event that Parent shall terminate this Agreement is terminated for any reason other than by the Company pursuant to Section 7.1(c) or by SPAC or by the Company, as the case may be, pursuant to Section 8.1.F.7.1(f) or Section 7.1(g), then the Company shall promptly reimburse Parent for Parent's costs pay, or cause to be paid, to the SPAC, an amount equal to five percent (5%) of any SPAC Introduced Financing Amount from any source during the period beginning October 16, 2024 and expenses in connection with extending through the twelve (12) months immediately following the effective date of such termination (the “Post-Termination Fee”). The Company shall remit the Post-Termination Fee to SPAC within thirty (30) days of receiving any such funds during this period. This obligation shall survive the termination of this Agreement and shall be binding upon the transactions contemplated hereby Parties.
("Parent's Expenses"c) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c), and ifthen the SPAC, shall pay, or cause to be paid, to the Company, within nine thirty (930) months days of such termination of this Agreementtermination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount Termination Fee by which wire transfer of immediately available funds to an account or accounts designated in writing by the Company.
(d) The Parties acknowledge and agree that the provisions for payment of the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, Transactions and that, without these agreements, Parent would not are included herein in order to induce the Parties to enter into this Agreement; accordingly. The Parties acknowledge and agree that (i) in no event shall the party terminating this Agreement (the “Terminating Party”) be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable upon the occurrence of different events, and (ii) notwithstanding that SPAC or the Company, as applicable, may have the right to simultaneously seek specific performance of the Terminating Party’s obligation to consummate the Closing, on the one hand, and the Termination Fee, on the other hand, it may only obtain either specific performance of the Terminating Party’s obligation to consummate the Closing, on the one hand, or the Termination Fee, on the other hand. Notwithstanding anything to the contrary in this Agreement (subject to such Party’s right to seek specific performance pursuant to this Agreement, as and to the extent permitted thereunder), if SPAC or the Company fails Company, as applicable, is entitled to pay in a timely manner receive the amounts due Termination Fee pursuant to this Section 8.3.B. and7.3, such Party’s right to receive payment of the Termination Fee shall be the sole and exclusive remedy of such Party and its Affiliates against the Terminating Party or any of the Terminating Party’s Non-Party Affiliates for any breach of this Agreement (including any failure to consummate the Closing in accordance herewith) or otherwise under this Agreement or arising out of or related to the Transactions, and upon payment of the Termination Fee, the Terminating Party and its Affiliates shall have no any liability or obligation of any kind or nature relating to or arising out of this Agreement or the transactions contemplated hereby, in order to obtain such paymenteach case, Parent makes a claim that results in a judgment against whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise. SPAC and the Company for the amounts set forth in this Section 8.3.B.further agree that, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes termination of this Agreement, "Company Acquisition" shall mean any the maximum aggregate liability of the following transactions (other than Terminating Party under this Agreement shall be limited to an amount equal to the transactions contemplated by this Agreement): (i) a mergerTermination Fee and in no event shall seek to recover, consolidationor be entitled to recover, business combinationfrom the Terminating Party or its Affiliates any monetary damages of any kind, recapitalization, liquidation, dissolution character or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing description in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyamount.
Appears in 1 contract
Sources: Business Combination Agreement (Israel Acquisitions Corp)
Termination Fee. (a) The Company shall pay the Parent, by wire transfer of immediately available funds to an account designated by the Parent, a fee of $84,549,193.00 (the “Termination Fee”) if this Agreement is terminated as follows:
(i) In if the event that (1) Parent shall terminate terminates this Agreement pursuant to Section 8.1.G. 10.1(a)(iii)(B), the Company shall pay the Parent the Termination Fee in full on the Business Day following the date of such termination;
(ii) if the Parent or (2) the Company terminates this Agreement shall be terminated (x) pursuant to Section 8.1.B. 10.1(a)(ii)(A) or (y) 10.1(a)(ii)(C), or the Parent terminates this Agreement pursuant to Section 8.1.D. 10.1(a)(iii)(A) and, in the case of either (x) or (y), (a) at or prior to such termination, there termination a Qualified Third Party Proposal shall exist or have been proposed an Acquisition Proposal and (b) made known to the Company or publicly announced and, within nine (9) 12 months after following such termination, the Company shall enter enters into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or consummates, any Qualified Acquisition Transaction (whether or not such transaction was the consummation ofone as to which a proposal, as applicableoffer or indication of interest had been made or announced prior to such termination), such Company Acquisition, then the Company shall pay to the Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").Fee contemporaneously with the consummation of the Qualified Acquisition Transaction; or
(iiiii) In if the event that Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"10.1(a)(iv)(B), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay the Parent the Termination Fee in full at or prior to, and as a condition precedent to Parent its costs and expenses the effectiveness of, such termination.
(including attorneys' fees and expensesb) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this AgreementSection 10.4(a), "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) “Qualified Third Party Proposal” means a mergerThird Party Proposal relating to a Qualified Acquisition Transaction, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; and (ii) a sale “Qualified Acquisition Transaction” has the same meaning as Acquisition Transaction, except that all references therein to “25% or other disposition by the Company of assets representing in excess of fifty percent (more” shall be deemed to be references to “more than 50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company”.
Appears in 1 contract
Sources: Merger Agreement (International Securities Exchange Holdings, Inc.)
Termination Fee. (a) If: (i) In Parent or the Company, as --------------- the case may be, terminates this Agreement pursuant to Sections 7.1(b)(i), 7.1(c), 7.1(d), or 7.1(h) and (ii) in case of a termination pursuant to Sections 7.1(b)(i) or 7.1(h) an Alternative Proposal with respect to the Company shall have been publicly announced prior to such termination and any merger or extraordinary transaction is, entered into or consummated by the Company within twelve (12) months following such termination, then, in any such case, the Company shall pay to Parent (i) a fee ("Termination Fee"), in --------------- cash, equal to $60 million and (ii) all costs and expenses incurred or payable by or on behalf of Parent or Merger Sub in connection with or in anticipation of the transactions contemplated by this Agreement, including, without limitation, all attorneys' fees, accountants' fees, financial advisors' fees, internal time charges for Parent employees (based on customary charges in the industry) consultant fees, commitment fees and filing fees, not to exceed $10 million in the aggregate (the "Expense ------- Payment"); provided, however, that the Company in no event that shall be ------- -------- ------- obligated to pay more than once such Termination Fee with respect to all such agreements and occurrences and such termination.
(1b) Parent Any payments required to be made pursuant to this Section 7.3 shall terminate be made to Parent, by wire transfer of immediately available same day funds to an account designated by Parent, within two (2) business days after the termination of this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x7.1(c) or (yd) or, if this Agreement is terminated pursuant to Sections 7.1(b)(i) or 7.1(h), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months two business days after such termination, Company shall enter the earlier of the entering into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition merger or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) extraordinary transaction. The Company acknowledges that the agreements covenants contained in this Section 8.3.B. 7.3(a) are an integral part of the transactions contemplated by in this Agreement, Agreement and that, that without these agreements, such covenants Parent would not enter into this Agreement; accordingly. Accordingly, if in the event the Company fails to pay in a timely manner to Parent the amounts due pursuant to this Section 8.3.B. andTermination Fee and Expense Payment, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.promptly when due, the Company shall shall, in addition thereto, pay to Parent its all costs and expenses (expenses, including attorneys' fees and expenses) disbursements, incurred in connection with collecting such suit, Termination Fee and Expense Payment together with interest on the amounts set forth in this Section 8.3.B. at amount of the prime rate of interest as reported by SunTrust BankTermination Fee and Expense Payment or any unpaid portion thereof, N.A. in effect on from the date such payment was required due until the date such payment is received by Parent, accrued at the fluctuating prime rate (as quoted in The Wall Street Journal) as in effect from time to be made. Payment of time during the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyperiod.
Appears in 1 contract
Termination Fee. (i) In the event that (1) Parent Gold Flora shall be entitled to the Gold Flora Termination Fee upon the occurrence of any of the following events (each a "Gold Flora Termination Fee Event"), which Gold Flora Termination Fee shall be paid by TPCO within the time specified in respect of each such Gold Flora Termination Fee Event:
(a) this Agreement is terminated by TPCO pursuant to Section 7.2(1)(c)(ii) [TPCO Enters into a TPCO Superior Proposal], in which case the Gold Flora Termination Fee shall be paid concurrent with such termination;
(b) this Agreement is terminated by either TPCO or Gold Flora pursuant to any subsection of Section 7.2 if at such time Gold Flora is entitled to terminate this Agreement pursuant to Section 8.1.G. or 7.2(1)(d)(ii) [TPCO Change in Recommendation], in which case the Gold Flora Termination Fee shall be paid on the first Business Day following such termination; or
(2c) this Agreement shall be is terminated (x) by either TPCO or Gold Flora pursuant to Section 8.1.B. 7.2(1)(b)(i) [Failure to Obtain TPCO Required Approvals] or (ySection 7.2(1)(b)(iii) [Occurrence of Outside Date] or by Gold Flora pursuant to Section 8.1.D. and, in the case 7.2(1)(d)(iii) [Breach of either TPCO Non-Solicitation] if (xi) or (y), (a) at or prior to such termination, there shall exist or have been proposed an a TPCO Acquisition Proposal was made (including the announcement of the intention to make a TPCO Acquisition Proposal) that has not been withdrawn as of the date of such termination; and (ii) within 12 months following the date of such termination such TPCO Acquisition Proposal is consummated, in which case the Gold Flora Termination Fee shall be payable on the consummation of such TPCO Acquisition Proposal; provided that, for the purposes of this Section 7.3(1)(c), the term "TPCO Acquisition Proposal" shall have the meaning assigned to such term in Section 1.1, except that references to "20% or more" shall be deemed to be references to "50% or more".
(2) TPCO shall be entitled to the TPCO Termination Fee upon the occurrence of any of the following events (each a "TPCO Termination Fee Event"), which TPCO Termination Fee shall be paid by Gold Flora within the time specified in respect of each such TPCO Termination Fee Event:
(a) this Agreement is terminated by TPCO pursuant to Section 7.2(1)(c)(iii) [Gold Flora Breach of Non-Solicitation] if (i) prior to such termination, a Gold Flora Acquisition Proposal was made (including the announcement of the intention to make a Gold Flora Acquisition Proposal) that has not been withdrawn as of the date of such termination; and (ii) within 12 months following the date of such termination such Gold Flora Acquisition Proposal is consummated, in which case the TPCO Termination Fee shall be payable on the consummation of such Gold Flora Acquisition Proposal; provided that, for the purposes of this Section 7.3(2)(a), the term "Gold Flora Acquisition Proposal" shall have the meaning assigned to such term in Section 1.1, except that references to "20% or more" shall be deemed to be references to "50% or more";
(b) within nine (9) months after this Agreement is terminated by TPCO pursuant to Section 7.2(1)(c)(v), in which case the TPCO Termination Fee shall be paid on the first Business Day following such termination;
(c) this Agreement is terminated by TPCO pursuant to Section 7.2(1)(c)(vi) [Failure to Secure the Gold Flora Required Approvals], Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition in which case the TPCO Termination Fee shall be consummated, then, in paid on the case of first Business Day following such termination;
(13) Subject to Section 7.3(7), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, Gold Flora Termination Fee or the consummation ofTPCO Termination Fee, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with payable by the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails Party required to pay such fee by wire transfer in a timely manner the amounts due pursuant immediately available funds to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition an account specified by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior Party to whom such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyfee is payable.
Appears in 1 contract
Sources: Business Combination Agreement (TPCO Holding Corp.)
Termination Fee. (a) Acquiror shall be entitled to a fee of $32.5 million (the "Termination Fee") upon the occurrence of any of the following events (each a "Termination Fee Event") which shall be paid by Company within the time specified in respect of each such Termination Fee Event:
(i) In this Agreement is terminated by Acquiror pursuant to Section 8.2(c)(i) (Change in recommendation) or Section 8.2(c)(vi) (Superior Proposal Notice) in which case the event that termination fee shall be paid on the first Business Day following such termination;
(1ii) Parent this Agreement is terminated by Company pursuant to Section 8.2(d)(i) (to enter into a Superior Proposal), in which case the Termination Fee shall be paid concurrent with such termination; or
(iii) this Agreement is terminated by Acquiror pursuant to Section 8.2(c)(iii) (Breach of Representations and Warranties), Section 8.2(c)(iv) (Breach of Non Solicitation) or Section 8.2(c)(v) (Special Meeting has not occurred), by either Party pursuant to Section 8.2(b)(i) (Effective Time not prior to the Outside Date) or Section 8.2(b)(iii) (No Shareholder Approval) or by Company pursuant to Section 8.2(d)(ii) (Effective Time not prior to the Outside Date) (in circumstances where Acquiror would also be entitled to terminate this Agreement pursuant to Section 8.1.G. 8.2(c)(iii), Section 8.2(c)(iv), Section 8.2(c)(v) or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and8.2(b)(iii)), but only if, in the case of either (x) or (ythis Section 8.3(a)(iii), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company an Acquisition Proposal shall enter into a definitive agreement have been made to Company, or the intention to make an Acquisition Proposal with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount have been publicly announced by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions Person (other than Acquiror or any of its affiliates), and if within nine months following the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity date of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.termination:
Appears in 1 contract
Termination Fee. (ia) In the event that that:
(1i) Parent shall terminate this Agreement is terminated (A) by Parent pursuant to Section 8.1.G. 6.1(d) or Section 6.1(f), (2B) this Agreement shall be terminated (x) by Parent pursuant to Section 8.1.B. 6.1(i) that arises out of a Willful Breach of Section 4.2, or (yC) by the Company pursuant to Section 8.1.D. and6.1(e), then the Company shall pay to Parent in immediately available funds the Company Termination Fee. In the event this Agreement is terminated by Parent pursuant to Section 6.1(k), then the Company shall pay to Parent in immediately available funds an amount equal to 50% of the Company Termination Fee (the “Reduced Company Termination Fee”). The Company shall pay (or cause to be paid) to Parent the Company Termination Fee or the Reduced Company Termination Fee, as applicable, by wire transfer, in the case of either a termination by Parent, within five (5) Business Days of such termination and in the case of termination by the Company, on the date of, and concurrently with, such termination; or
(ii) (A) this Agreement is terminated by (x) Parent or the Company pursuant to Section 6.1(b) (ybut only if the Company Stockholder Approval has not yet been obtained) or Section 6.1(k), (ay) at by Parent pursuant to Section 6.1(g) or Section 6.1(i), (B) any Alternative Acquisition Proposal has been made known to the Company or publicly announced by any Person (other than by Parent, Merger Sub or their respective Affiliates) and, in either case, not withdrawn after the date of this Agreement but prior to such termination, there shall exist or have been proposed an Acquisition Proposal termination and (bC) within nine twelve (912) months after such terminationof the date this Agreement is terminated, the Company shall enter enters into a definitive agreement with respect to any Company Alternative Acquisition Proposal or any Company an Alternative Acquisition Proposal is consummated (provided, that for purposes of clause (C), the references to “20%” in the definition of Alternative Acquisition Proposal shall be consummated, then, in the case of (1deemed to be references to “50%”), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part occurrence of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay applicable event in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.clause (C), the Company shall pay (or cause to be paid) to Parent its costs and expenses the Company Termination Fee (including attorneys' fees and expensesor, if this Agreement is terminated by Parent pursuant to Section 6.1(k), then the Company shall pay (or cause to be paid) to Parent an amount equal to the Company Termination Fee, less the Reduced Company Termination Fee already paid to Parent pursuant to Section 6.3(a)(i)), by wire transfer, it being understood that in connection with such suit, together with interest on no event shall the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was Company be required to pay (or cause to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (ipaid) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less Termination Fee on more than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyone occasion.
Appears in 1 contract
Termination Fee. (a) If (i) In the event that Company (A) receives an Alternative Proposal after the date of this Agreement and prior to the termination of this Agreement which has been publicly disclosed and has not been terminated or withdrawn, (B) this Agreement is thereafter terminated by the Company or Parent pursuant to Sections 8.1(b)(ii) or 8.1(b)(iv), or by Parent pursuant to Sections 8.1(e)(i) or 8.1(e)(ii), and (C) within one (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in year from the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months date of such termination of this Agreement, the Company consummates such Alternative Proposal; provided, that, for purposes of this Section 8.3(a)(i), “Alternative Proposal” shall have the meaning ascribed in Section 1.1 except that references to “20%” shall be replaced by “50%”; (ii) the Company terminates this Agreement pursuant to Section 8.1(c) or (iii) Parent terminates this Agreement pursuant to Section 8.1(f) then the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall (x) pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of $3,500,000 in cash (the “Termination Fee”) and (y) following delivery by Parent of an invoice therefor and reasonable documentation thereof, shall promptly reimburse Parent's Expenses previously reimbursed , by Company pursuant hereto.
wire transfer of same day funds, for the reasonable documented out-of-pocket fees and expenses (iiiincluding the reasonable legal fees and expenses) The Company acknowledges that actually incurred by Parent, Purchaser and their Affiliates on or prior to the agreements contained termination of this Agreement in this Section 8.3.B. are an integral part of connection with the transactions contemplated by this Agreement, up to a maximum amount not to exceed $1,000,000 in the aggregate (the “Parent Expenses”), in each case pursuant to Section 8.3(b) below.
(b) The Company shall pay the Termination Fee to Parent, by wire transfer of same day funds, at or prior to the time of termination, in the case of such termination by the Company, or as promptly as practicable (and thatin any event within two (2) Business Days of receipt of Parent’s termination notice pursuant to Section 8.2), without these agreementsin the case of such termination by Parent. Except to the extent required by applicable Law, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due shall not withhold any withholding taxes from any payment made pursuant to this Section 8.3.B. and8.3. Notwithstanding any provision of this Agreement to the contrary, Parent and Purchaser agree that (i) payment of the Termination Fee and Parent Expenses, if such payment is payable and actually paid, shall be the sole and exclusive remedy of Parent and Purchaser against the Company, any of the Company Subsidiaries or any of the Company’s and the Company Subsidiaries’ respective former, current or future Representatives, stockholders or Affiliates and (ii) none of the Company, any of the Company Subsidiaries or any of the Company’s and the Company Subsidiaries’ respective former, current or future Representatives, stockholders or Affiliates shall have any liability or obligation, in order any such case (clause (i) or (ii)) relating to, arising out of or with respect to obtain this Agreement or any of the Transactions (whether relating to, arising out of or with respect to any matter(s) forming the basis for such paymenttermination or otherwise). Without limitation of the foregoing, Parent makes a claim that results in a judgment against none of Parent, Purchaser, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any proceeding, claim, suit or action against, or seek damages from, the Company, any of the Company for Subsidiaries or any other Person referred to in clause (i) or (ii) above, in contravention of the amounts set forth preceding sentence. Under no circumstances shall the Company Termination Fee or Parent Expenses be payable more than once.
(c) Notwithstanding anything to the contrary contained herein, the Company (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) hereby waives any rights or claims against any Debt Financing Source in connection with this Agreement, the Financing Commitments, the Financing, the Definitive Financing Agreements or in respect of any other document or theory of law or equity (whether in tort, contract or otherwise) or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith and the Company (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) agrees not to commence any action or proceeding against any Debt Financing Source in connection with this Agreement, the Financing Commitments, the Financing, the Definitive Financing Agreements or in respect of any other document or theory of law or equity and agrees to cause any such action or proceeding asserted by the Company in violation of the prohibition on commencing actions or proceedings contained in this Section 8.3.B.8.3(c) (on behalf of itself and any of its Affiliates, the Company shall pay to Parent its costs directors, officers, employees, agents and expenses (including attorneys' fees and expensesrepresentatives) in connection with such suitthis Agreement, together the Financing Commitments, the Financing, the Definitive Financing Agreements or in respect of any other document or theory of law or equity against any Debt Financing Source to be dismissed or otherwise terminated. In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Debt Financing Source shall have any liability for any claims or damages to the Company in connection with interest on this Agreement, the amounts set forth Financing Commitments, the Financing, the Definitive Financing Agreements or the transactions contemplated hereby or thereby. The provisions of this Section 8.3(c) shall inure to the benefit of, and be enforceable by, each Debt Financing Source, its Affiliates and their respective successors and permitted assigns, each of which is hereby intended to be an express third party beneficiary of this Section 8.3(c) provided, that, notwithstanding the foregoing, nothing in this Section 8.3.B. at 8.3 shall in any way limit or modify (x) the prime rate rights and obligations of interest as reported by SunTrust BankHoldCo, N.A. in effect on Parent or Purchaser under the date such payment was required to be made. Payment Financing Commitments or (y) the rights and obligations of the fees described Company under that certain Engagement Letter, dated February 1, 2011, as amended as of October 26, 2011, between the Company and ▇▇▇▇▇▇▇▇▇ & Company, Inc. (solely in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement▇▇▇▇▇▇▇▇▇ & Company, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) Inc.’s capacity as a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving financial advisor to the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the CompanyEngagement Letter), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 1 contract
Termination Fee. (ia) In the event that (1) Parent shall terminate If Purchaser terminates this Agreement pursuant to Section 8.1.G. 8.1(c)(ii) or (2) the Company terminates this Agreement shall be terminated (x) pursuant to Section 8.1.B. 8.1(d)(ii), then the Company shall pay to Parent (or its designee) a termination fee of $2,159,725.
(yb) If (i) Purchaser terminates this Agreement pursuant to Section 8.1.D. and, in the case of either (x8.1(c)(i) or (yPurchaser or the Company terminates this Agreement pursuant to Section 8.1(b)(iii), (aii) at or prior to the date of such termination (but after the date hereof) an Acquisition Proposal is publicly announced or is otherwise communicated to the Company’s Board of Directors, and (iii) within twelve (12) months after the date of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement with respect to or otherwise consummates any Company Acquisition or any Company Acquisition shall be consummatedProposal, then, in then the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount (or its designee) a termination fee of $2,159,725 no later than two (2) Business Days after the execution of such definitive agreement or consummation of such Acquisition Proposal, as the case may be; provided, that solely for purposes of this Section 8.3(b), the term Acquisition Proposal shall have the meaning ascribed thereto in cash equal Section 6.2(d)(i), except that all references to Two Hundred Fifty Thousand and No/100 Dollars twenty percent ($250,000.0020%) shall be changed to fifty percent (the "Termination Fee"50%).
(iic) In the event that Parent shall terminate If Purchaser terminates this Agreement pursuant to Section 8.1.F.8.1(c)(i) or Purchaser or the Company terminates this Agreement pursuant to Section 8.1(b)(iii), then the Company shall promptly reimburse Parent (or its designee) for Parent's costs and expenses any Expenses incurred by or on behalf of the Purchaser Entities or any of their Affiliates, in connection with this Agreement and the transactions contemplated hereby an aggregate amount not to exceed $500,000 ("Parent's Expenses"“Expense Reimbursement”), and if, within nine no later than two (92) months Business Days after the date of such termination.
(d) The parties agree and understand that in no event shall the Company be required to pay any termination of fee pursuant to this Section 8.3 (any such amount, the “Termination Fee”) on more than one occasion. Notwithstanding anything to the contrary in this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition (i) if Parent (or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which its designee) receives the Termination Fee exceeds and/or Expense Reimbursement from the Company pursuant to this Section 8.3, such payment(s) shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives, and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of the Transaction Agreements or the Transactions and, (ii) if Parent (or its designee) receives any Expense Reimbursement, and thereafter Parent (or its designee) is entitled to receive the Termination Fee under this Section 8.3, the amount of Parent's Expenses previously reimbursed such Termination Fee shall be reduced by Company pursuant hereto.
(iii) the aggregate amount of such Expense Reimbursement. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent the parties would not enter into this Agreement; accordinglythe Transaction Agreements, if the Company fails to pay in a timely manner the and that any amounts due payable pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes 8.3 do not constitute a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypenalty.
Appears in 1 contract
Termination Fee. (a) If this Agreement is terminated by Purchaser or the Company pursuant to Section 9.02(b) or Section 9.02(c), and at the time of such termination, all conditions to the Closing are satisfied or waived (other than those conditions which by their nature are to be satisfied by actions to be taken, or delivered, or to be made, at the Closing (but subject to such conditions being capable of being satisfied)), other than the conditions set forth in either (A) Section 8.01(a), but solely with respect to a temporary restraining order, preliminary or permanent injunction, final judgment or other Order relating to the HSR Act or any other Antitrust/FDI Law or (B) Section 8.01(b), then Purchaser shall pay to Seller an amount equal to the Purchaser Termination Fee (x) within two (2) Business Days after the date of termination of this Agreement (in the case of any such termination by the Company) or (y) concurrently with such termination by Purchaser (in the case of any such termination by Purchaser). The parties hereto acknowledge and agree that in no event shall Purchaser be required to pay the Purchaser Termination Fee on more than one occasion.
(b) Payment of the Purchaser Termination Fee shall be made by wire transfer of immediately available funds to an account designated in writing by Seller at least two (2) Business Days prior to such payment being due.
(c) Solely in the event of any termination described in Section 9.04(a) following which the Purchaser Termination Fee is payable, (i) In payment from Purchaser, and receipt by Seller, of the event that (1) Parent shall terminate this Agreement Purchaser Termination Fee pursuant to Section 8.1.G. 9.04(a) (together with any amounts that become due pursuant to Section 9.04(d)) (x) shall be the sole and exclusive remedy of the Company, Seller and the Seller Related Parties against Purchaser and the Purchaser Related Parties arising out of or (2) related to this Agreement, the failure of the Closing to occur, any breach of any covenant in this Agreement or the transactions contemplated hereby, and (y) shall constitute liquidated damages for any loss suffered as a result of the failure of the transactions contemplated hereby to be terminated consummated or for a breach or failure to perform hereunder or otherwise, and (xii) upon payment of such amount(s) pursuant to Section 8.1.B. 9.04(a), together with all amounts required to be paid under Section 9.04(d), (x) none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or any exhibit or Schedule hereto or the transactions contemplated hereby or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith, whether at Law or in equity in contract, in tort, or otherwise, and (y) pursuant to Section 8.1.D. andnone of Seller, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition other Seller Related Parties shall be consummatedentitled to bring or maintain any claim, thenaction or proceeding against Purchaser, in the case any Purchaser Related Party or any of (1), promptly after such termination, their respective Affiliates relating to or in the case arising out of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and or the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9or the abandonment or termination hereof) months of or any matters forming the basis for such termination or in respect of this Agreementany other document or theory of law or equity; provided that the foregoing shall not relieve Purchaser from any liability for (i) Fraud, Company shall enter into a definitive agreement with respect to (ii) any Company Acquisition Intentional Breach by Purchaser or any Company Acquisition involving Company shall be consummatedof its Affiliates, then concurrently with (iii) any breach of the execution of a definitive agreement with respect to, Confidentiality Agreement or the consummation ofClean Team Agreement by Purchaser or (iv) any claim for indemnification pursuant to Section 7.16(g). Without limiting the foregoing, as applicablefor clarity, such in no circumstances shall Seller or the Company Acquisition, then Company shall pay be permitted or entitled to Parent an amount in cash equal to receive both (x) a grant of specific performance or monetary damages and (y) payment of the amount by which the Purchaser Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoFee.
(iiid) The Company Purchaser acknowledges and agrees that the agreements contained in this Section 8.3.B. 9.04 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent Seller and the Company would not enter into this Agreement; accordingly. Accordingly, if the Company Purchaser fails to promptly pay in a timely manner the amounts Purchaser Termination Fee when due pursuant to this Section 8.3.B. 9.04, and, in order to obtain such paymentthe payment of the Purchaser Termination Fee, Parent makes either the Company or Seller commences a claim that proceeding which results in a judgment judgement against the Company for the amounts set forth in this Section 8.3.B.Purchaser, the Company then Purchaser shall pay to Parent its any reasonable and documented out-of-pocket costs and expenses incurred by the Company or Seller (including reasonable and documented attorneys' ’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in . Any amount not paid when due pursuant to this Section 8.3.B. 9.04 shall bear interest from the date such amount is due until the date paid at a rate equal to the prime rate of interest as reported by SunTrust Bankpublished in The Wall Street Journal, N.A. Eastern Edition, in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypayment.
Appears in 1 contract
Sources: Securities Purchase Agreement (Gibraltar Industries, Inc.)
Termination Fee. (ia) In the event that (1) Parent shall terminate If Purchaser terminates this Agreement pursuant to Section 8.1.G. 7.1(c)(ii) or (2) the Company terminates this Agreement pursuant to Section 7.1(d)(ii), then the Company shall be pay to Parent (or its designee) a termination fee of $2,159,725; provided, however, that in the event that this Agreement is terminated pursuant to Section 7.1(c)(ii)(B) or Section 7.1(d)(ii) and either (x) pursuant to Section 8.1.B. such termination occurs on or before the No-Shop Period Start Date, or (y) the Company enters into a definitive agreement with an Excluded Party with respect to a Superior Proposal in accordance with Section 5.2 on or before the Company Shareholder Approval is obtained, then the Company shall pay, or cause to be paid, to Parent an amount equal to $1,079,862.
(b) If (i) Purchaser terminates this Agreement pursuant to Section 8.1.D. and, in the case of either (x7.1(c)(i) or (yPurchaser or the Company terminates this Agreement pursuant to Section 7.1(b)(iii), (aii) at or prior to the date of such termination (but after the date hereof) an Acquisition Proposal is publicly announced or is otherwise communicated to the Company’s Board of Directors, and (iii) within twelve (12) months after the date of such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter enters into a definitive agreement with respect to or otherwise consummates any Company Acquisition or any Company Acquisition shall be consummatedProposal, then, in then the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount (or its designee) a termination fee of $2,159,725 no later than two (2) Business Days after the execution of such definitive agreement or consummation of such Acquisition Proposal, as the case may be; provided, that solely for purposes of this Section 7.3(b), the term Acquisition Proposal shall have the meaning ascribed thereto in cash equal Section 5.2(c), except that all references to Two Hundred Fifty Thousand and No/100 Dollars twenty percent ($250,000.0020%) shall be changed to fifty percent (the "Termination Fee"50%).
(iic) In the event that Parent shall terminate If Purchaser terminates this Agreement pursuant to Section 8.1.F.7.1(c)(i) or Purchaser or the Company terminates this Agreement pursuant to Section 7.1(b)(iii), then the Company shall promptly reimburse Parent (or its designee) for Parent's costs and expenses any Expenses incurred by or on behalf of the Purchaser Entities or any of their Affiliates, in connection with this Agreement and the transactions contemplated hereby an aggregate amount not to exceed $500,000 ("Parent's Expenses"“Expense Reimbursement”), and if, within nine no later than two (92) months Business Days after the date of such termination.
(d) The parties agree and understand that in no event shall the Company be required to pay any termination of fee pursuant to this Section 7.3 (any such amount, the “Termination Fee”) on more than one occasion. Notwithstanding anything to the contrary in this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition (i) if Parent (or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which its designee) receives the Termination Fee exceeds and/or Expense Reimbursement from the Company pursuant to this Section 7.3, such payment shall be the sole and exclusive remedy of the Purchaser Entities against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives, and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of the Transaction Agreements or the Transactions and, (ii) if Parent (or its designee) receives any Expense Reimbursement, and thereafter Parent (or its designee) is entitled to receive the Termination Fee under this Section 7.3, the amount of Parent's Expenses previously reimbursed such Termination Fee shall be reduced by Company pursuant hereto.
(iii) the aggregate amount of such Expense Reimbursement. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 7.3 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent the parties would not enter into this Agreement; accordinglythe Transaction Agreements, if the Company fails to pay in a timely manner the and that any amounts due payable pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes 7.3 do not constitute a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypenalty.
Appears in 1 contract
Sources: Merger Agreement (Alexanders J Corp)
Termination Fee. (ia) In the event that this Agreement is terminated by the Company pursuant to Section 9.1(c)(ii), then the Company shall pay to Parent the Termination Fee in accordance with Section 9.2(d), at or prior to the time of termination.
(b) (I) In the event that (1) Parent shall terminate this Agreement is terminated by Parent, on the one hand, or the Company, on the other hand, pursuant to Section 8.1.G. 9.1(b)(iii) or by Parent pursuant to Section 9.1(d)(i); (2) at any time after the date of this Agreement shall be terminated and prior to the Company Shareholder Meeting (x) in the case of a termination pursuant to Section 8.1.B. 9.1(b)(iii)), or prior to the breach giving rise to the right of termination (y) in the case of a termination pursuant to Section 8.1.D. 9.1(d)(i)) a bona fide written Company Acquisition Proposal shall have been publicly announced or publicly made known and, in the case of either (x) or (ytermination pursuant to Section 9.1(b)(iii), (a) not publicly withdrawn at or least two Business Days prior to such termination, there shall exist or have been proposed an Acquisition Proposal the Company Shareholder Meeting; and (b3) within nine (9) 12 months after such terminationtermination pursuant to Section 9.1(b)(iii) or 9.1(d)(i), the Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of its Subsidiaries enters into a definitive agreement with respect to, or the consummation ofconsummates, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition Proposal (whether or any Company Acquisition involving Company shall be not the same as that originally announced or consummated), then concurrently with then, on the date of such execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.consummation, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) the Termination Fee in connection accordance with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement9.2(d). For the purposes of this AgreementSection 9.2(b)(I) only, "Company Acquisition" shall mean any references in the definition of the following transactions term “Company Acquisition Proposal” to the term “25%” will be deemed replaced by the term “a majority”. If this Agreement is terminated in the circumstances described in clauses (other than the transactions contemplated by this Agreement): 1) and (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%2) of the aggregate equity interests first sentence of this Section 9.2(b)(I), but the circumstances described in the surviving or resulting entity clause (3) of such transactionsentence have not yet occurred, then the Company shall pay to Parent, within two days of Parent’s delivery to the Company of a written statement of its expenses, the Break-Up Expenses in accordance with Section 9.2(d); provided that if the circumstances in clause (ii3) a sale or other disposition ultimately do occur then any payment by the Company of assets representing in excess of fifty percent (50%) the Break-Up Expenses shall be credited against the payment of the aggregate fair market value Termination Fee such that the payment of the Company's business immediately prior to such sale or (iii) Termination Fee and the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Break-Up Expenses shall not exceed $50 million in the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyaggregate.
Appears in 1 contract
Termination Fee. (ia) In the event that this Agreement is validly terminated by the Parent pursuant to Section 6.04(c) or Section 6.04(e), Purchaser shall pay, or cause to be paid, to the Company an amount equal to One Million Two Hundred Thousand Dollars (1$1,200,000) (the “Purchaser Termination Fee”) not later than the tenth (10th) Business Day after such valid termination, by wire transfer of immediately available funds to an account designated in writing by the Seller Representative.
(b) In the event that this Agreement is validly terminated by the Parent pursuant to Section 6.04(f), Parent shall terminate pay, or cause to be paid, to the Purchaser an amount equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Seller Termination Fee”) prior to or simultaneous with such valid termination (the receipt by the Purchaser of the Seller Termination Fee being a condition to the valid termination of this Agreement pursuant to Section 8.1.G. or (2) 6.04(f)), by wire transfer of immediately available funds to an account designated in writing by the Purchaser. In the event that this Agreement shall be is validly terminated (x) by the Purchaser pursuant to Section 8.1.B. 6.04(b) or Section 6.04(g), Parent shall pay, or cause to be paid, to the Purchaser the Seller Termination Fee not later than the tenth (y10th) Business Day after such valid termination, by wire transfer of immediately available funds to an account designated in writing by the Purchaser. If, (i) after the date of this Agreement and prior to the valid termination of this Agreement, a proposal for an Alternative Acquisition shall have been made to Parent or its Subsidiaries, or an intention (whether or not conditional) to make a proposal for an Alternative Acquisition was publicly announced or otherwise became publicly known; (ii) thereafter, this Agreement is terminated by Purchaser and/or any Company Party pursuant to Section 8.1.D. and, in the case of either (x) or (y6.04(d), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal ; and (biii) within nine twelve (912) months after such termination, Company shall enter Parent or any of its Subsidiaries enters into a definitive agreement with respect to any Company effect an Alternative Acquisition or any Company Acquisition consummates an Alternative Acquisition, then Parent shall pay, or cause to be consummatedpaid, thento the Purchaser the Seller Termination Fee not later than the tenth (10th) Business Day after execution of such definitive agreement or consummation of such Alternative Acquisition, by wire transfer of immediately available funds to an account designated in writing by the Purchaser.
(c) Notwithstanding anything to the contrary in this Agreement or otherwise, in the case event of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such any valid termination of this Agreement, (i) the Purchaser’s payment of the Purchaser Termination Fee (which the parties acknowledge is due and payable only in the event of a termination pursuant to Section 6.04(c) or Section 6.04(e)) shall constitute the sole and exclusive remedy of the Company shall enter into a definitive agreement with respect to Parties and their respective Affiliates, successors, creditors, representative and agents (collectively, the “Company Releasing Parties”) against Purchaser and its equityholders, and any Company Acquisition current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, controlling person, Affiliate, agent, attorney, representative or assignee of, and any financial advisor or lender to, Purchaser, including the Financing Sources, or any Company Acquisition involving Company shall be consummatedcurrent, then concurrently former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, controlling person, Affiliate, agent, attorney, representative or assignee of, and any financial advisor or lender to, any of the foregoing (each a “Purchaser Related Party”) for any and all losses or damages suffered or incurred by any Releasing Party based upon, resulting from, arising out of or in connection with the execution termination of a definitive this Agreement or any breach of any representation, covenant or agreement in this Agreement or circumstances giving rise to such breach or termination; (ii) the Company Releasing Parties shall not be entitled to commence or pursue any action, Proceeding, litigation or claims against any Purchaser Related Party arising out of or in connection with respect tothis Agreement, any certificate or other Transaction Document delivered pursuant to the express terms of this Agreement or the consummation ofTransactions (other than for payment of the Purchaser Termination Fee, as applicableif and when payable pursuant to Section 6.06(a)); and (iii) no Purchaser Related Party shall have any further liability or obligation relating to or arising out of this Agreement, such Company Acquisition, then Company shall pay to Parent an amount in cash equal any certificate or other Transaction Document delivered pursuant to the amount by which express terms of this Agreement or the Termination Fee exceeds Transactions, including the amount of Parent's Expenses previously reimbursed by Company pursuant heretoDebt Letters and Equity Commitment Letter.
(iiid) Notwithstanding anything to the contrary in this Agreement or otherwise, in the event of any valid termination of this Agreement, (i) the Parent’s payment of the Seller Termination Fee (which the parties acknowledge is due and payable only as contemplated by Section 6.06(b)) shall constitute the sole and exclusive remedy of the Purchaser, any Purchaser Related Party and their respective Affiliates, successors, creditors, representative and agents (collectively, the “Purchaser Releasing Parties”) against Parent, any Seller and their respective equityholders, and any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, controlling person, Affiliate, agent, attorney, representative or assignee of, and any financial advisor or lender to, Parent, any Seller or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, controlling person, Affiliate, agent, attorney, representative or assignee of, and any financial advisor or lender to, any of the foregoing (each a “Company Related Party”) for any and all losses or damages suffered or incurred by any Purchaser Releasing Party based upon, resulting from, arising out of or in connection with the termination of this Agreement or any breach of any representation, covenant or agreement in this Agreement or circumstances giving rise to such breach or termination; (ii) the Purchaser Releasing Parties shall not be entitled to commence or pursue any action, Proceeding, litigation or claims against any Company Related Party arising out of or in connection with this Agreement, any certificate or other Transaction Document delivered pursuant to the express terms of this Agreement or the Transactions (other than for payment of the Seller Termination Fee, if and when payable pursuant to Section 6.06(b)).
(e) The Company acknowledges parties hereto acknowledge that the agreements contained in this Section 8.3.B. 6.06 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent the parties hereto would not enter into this Agreement; accordingly, if . In light of the Company fails difficulty of accurately determining actual losses or damages with respect to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.foregoing, the Company shall pay to Parent its costs and expenses parties acknowledge that (including attorneys' fees and expensesi) the Purchaser Termination Fee in connection with such suitthe circumstances in which it becomes payable, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment constitutes a reasonable estimate of the fees described in losses or damages that will be suffered by reason of any such termination of this Section 8.3.B. shall not be in lieu of Agreement and constitutes liquidated damages incurred (in the event of breach of it is payable) in a reasonable amount to compensate the Company Parties in the circumstances in which such fee and/or costs are payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement. For Agreement and in reliance on this Agreement and on the purposes of this Agreement, "Company Acquisition" shall mean any expectation of the following transactions (other than consummation of the transactions contemplated by this Agreement): (i) , which amount would otherwise be difficult to calculate with any precision, and is not a mergerpenalty, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; and (ii) the Seller Termination Fee in the circumstances in which it becomes payable, constitutes a sale reasonable estimate of the losses or damages that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (in the event it is payable) in a reasonable amount to compensate the Purchaser in the circumstances in which such fee and/or costs are payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be difficult to calculate with any precision, and is not a penalty. For the avoidance of doubt, (A) in no event shall the Company Parties be entitled to both obtain specific performance to cause the Closing to occur and also to receive the Purchaser Termination Fee, (B) in no event shall Purchaser be entitled to both obtain the specific performance to cause the Closing to occur and also to receive the Seller Termination Fee, (C) in no event shall the Purchaser Termination Fee be paid on more than one occasion, and (D) in no event shall the Seller Termination Fee be paid on more than one occasion. Notwithstanding anything to the contrary contained herein, and subject only to the Seller Representative’s right, prior to the termination of this Agreement, to pursue (or any actual judicial award of) specific performance of Purchaser’s obligations to consummate the Closing subject to and in accordance with Section 9.13(b), in no event shall Purchaser or any Purchaser Related Party have any liability hereunder or otherwise in connection with the Transactions for any liabilities or other disposition by the Company of assets representing amounts in excess of fifty percent (50%) the amount of the aggregate fair market value Purchaser Termination Fee including for any breach of this Agreement or for any other matter whatsoever (regardless of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way theory of a tender offer or an exchange offer or issuance by the Companyliability), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 1 contract
Termination Fee. (ia) In the event that this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) [Superior Proposal] or by Purchaser pursuant to Section 8.1(d)(i) [Material Breach] or Section 8.1(d)(iii) [Recommendation Withdrawal], then the Company shall, in consideration for the disposition of Parent’s and Purchaser’s rights under this Agreement to (among other things) directly or indirectly acquire the Shares, pay the Termination Fee to Parent (or as directed by ▇▇▇▇▇▇) as directed in writing by Parent, at or prior to the time of termination in the case of a termination pursuant to Section 8.1(c)(ii) [Superior Proposal] or within two (2) Business Days following termination of this Agreement in the case of a termination pursuant to Section 8.1(d)(i) [Material Breach] or Section 8.1(d)(iii) [Recommendation Withdrawal].
(b) In the event that (1) Parent shall terminate this Agreement (i) is terminated by Purchaser or the Company pursuant to Section 8.1.G. 8.1(b)(i) [End Date] or Section 8.1(b)(iii) [No Shareholder Approval] (or is terminated by the Company pursuant to a different section of Section 8.1 at a time when this Agreement was terminable by Purchaser pursuant to Section 8.1(b)(i) [End Date] or Section 8.1(b)(iii) [No Shareholder Approval]), or (ii) is terminated by Purchaser pursuant to Section 8.1(d)(ii) [Company Breach] (or is terminated by the Company pursuant to a different section of Section 8.1 at a time when this Agreement was terminable by Purchaser pursuant to Section 8.1(d)(ii) [Company Breach]) and, (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in at any time after the case of either (x) or (y), (a) at or date hereof and prior to such termination, there shall exist or have been proposed an Acquisition Proposal shall have been publicly announced or publicly made known and not publicly withdrawn (bor in the case of clause (ii) shall have been communicated or made known to the Board and not publicly withdrawn) and, (3) if within nine twelve (912) months after such termination, the Company shall enter or any of its Subsidiaries consummates an Acquisition Proposal, or enters into a definitive agreement with respect to any Company an Acquisition or any Company Proposal which is subsequently consummated (regardless of when such Acquisition shall be Proposal is consummated), then, in on the case date of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation ofof such Acquisition Proposal, as applicable, such Company Acquisition, the Company shall pay the Termination Fee to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00or as directed by ▇▇▇▇▇▇) (for purposes of the "Termination Fee"foregoing clauses (2) and (3), references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”).
(iic) In the event that Parent shall terminate this Agreement is terminated by Purchaser or the Company pursuant to Section 8.1.F.8.1(b)(iii) [No Shareholder Approval] (or is terminated by the Company pursuant to a different section of Section 8.1 at a time when this Agreement was terminable by Purchaser pursuant to Section 8.1(b)(iii) [No Shareholder Approval]), then the Company shall promptly reimburse pay Parent for (or as directed by Parent's costs ) $15,000,000 (the “Expense Reimbursement”) in respect of expenses incurred by Parent, Purchaser and expenses their respective Affiliates in connection with this Agreement and the transactions contemplated hereby without need for supporting documentation within two ("Parent's Expenses"), and if, within nine (92) months of Business Days following such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company termination. Any Expense Reimbursement shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the credited against any subsequently payable Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoFee.
(iiid) The Company Any amount that becomes payable pursuant to Section 8.2(a), Section 8.2(b) or Section 8.2(c) shall be paid by wire transfer of immediately available funds to an account designated by ▇▇▇▇▇▇ (or the party directed by ▇▇▇▇▇▇).
(e) Each of the Company, Parent and Purchaser acknowledges that the agreements contained in this Section 8.3.B. 8.2 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, neither the Company, Parent nor Purchaser would not enter have entered into this Agreement; accordingly, if and that any amounts payable pursuant to this Section 8.2 are not a penalty. If the Company fails to pay as directed in a timely manner the writing by Parent any amounts due to accounts designated by Parent pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against 8.2 within the Company for the amounts set forth time periods specified in this Section 8.3.B.8.2, the Company shall pay to Parent its the costs and expenses (including attorneys' reasonable legal fees and expenses) incurred by Purchaser or Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the such unpaid amounts set forth in this Section 8.3.B. at the prime lending rate of interest prevailing during such period as reported by SunTrust Bankpublished in The Wall Street Journal plus 5.0%, N.A. in effect calculated on a daily basis from the date such payment was amounts were required to be made. Payment paid until the date of actual payment (the obligations in this sentence, in respect of any Person, are referred to collectively as the “Enforcement Expenses”).
(f) Notwithstanding anything to the contrary in this Agreement, but except as provided in Section 9.11 with respect to equitable remedies and in Section 8.4, Parent’s right to receive or direct payment of the fees described Termination Fee or the Expense Reimbursement in this Section 8.3.B. shall not be the circumstances in lieu which it is payable (and, in the case of damages incurred the Expense Reimbursement, in the event that the Termination Fee does not become payable pursuant to Section 8.2(b)) and any Enforcement Expenses from the Company pursuant to this Section 8.2 shall be the sole and exclusive remedy available to Parent, Purchaser and their respective Affiliates for money damages against the Company, its Subsidiaries and any of breach of their respective former, current, or future shareholders, directors, officers, Affiliates or agents (collectively, the “Company Related Parties”) with respect to this Agreement. For , any other Transaction Document and the purposes transactions contemplated hereby and thereby (including for any liabilities and Damages suffered as a result of the failure of the transactions contemplated hereby to be consummated under any theory or for any reason), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than Transaction Document and the transactions contemplated by hereby and thereby. In no event shall Purchaser and Parent be entitled to receive more than one of (x) a grant of specific performance which results in the consummation of the Effective Time as contemplated in the Agreement, (y) payment of the Termination Fee and (z) Damages with respect to this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving any other Transaction Document and the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companytransactions contemplated hereby and thereby.
Appears in 1 contract
Termination Fee. (ia) In the event that (1) Parent shall terminate If Purchaser terminates this Agreement pursuant to Section 8.1.G. 9.1(c)(ii) or (2) the Company terminates this Agreement shall be terminated (x) pursuant to Section 8.1.B. 9.1(d)(ii), Parent shall pay to the Company (or its designee) a termination fee of $4,000,000.00 (ythe “Termination Fee”).
(b) If (i) the Company terminates this Agreement pursuant to Section 8.1.D. and, in the case of either (x9.1(d)(i) or Purchaser or the Company terminates this Agreement pursuant to Section 9.1(b)(iii); (y), (aii) at or prior to the date of such termination (but after the date hereof) an Alternative Proposal is publicly announced or is otherwise communicated to Parent’s board of directors; and (iii) within twelve (12) months after the date of such termination, there shall exist Parent or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall any of its Subsidiaries enter into a definitive agreement with respect to or otherwise consummates any Alternative Proposal, then Parent shall pay to the Company Acquisition (or any Company Acquisition shall be consummated, then, in its designee) the case of (1), promptly after such termination, or in the case of Termination Fee no later than two (2), concurrently with ) Business Days after the execution of a such definitive agreement with respect to, or the consummation ofof such Alternative Proposal, as applicablethe case may be; provided, such Company Acquisitionthat solely for purposes of this Section 9.3(b), Company the term Alternative Proposal shall pay have the meaning ascribed thereto in Section 11.12, except that all references to Parent an amount in cash equal twenty percent (20%) shall be changed to Two Hundred Fifty Thousand and No/100 Dollars fifty percent ($250,000.00) (the "Termination Fee"50%).
(iic) In If the event that Parent shall terminate Company terminates this Agreement pursuant to Section 8.1.F.9.1(d)(i) or Purchaser terminates this Agreement pursuant to Section 9.1(c)(i), then Company the non-terminating party shall promptly reimburse Parent pay to the terminating party (or its designee) as reimbursement for Parent's costs any Expenses incurred by or on behalf of the terminating party and expenses any of their respective Affiliates, in connection with this Agreement and the transactions contemplated hereby an aggregate amount not to exceed $500,000 ("Parent's Expenses"“Expense Reimbursement”), and if, within nine no later than two (92) months Business Days after the date of such termination of termination.
(d) The parties agree and understand that in no event shall Parent be required to pay a Termination Fee pursuant to this Section 9.3 on more than one occasion. Notwithstanding anything to the contrary in this Agreement, except as set forth in Section 9.2, (i) if the Company shall enter into a definitive agreement with respect to any Company Acquisition (or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which its designee) receives the Termination Fee exceeds and/or Expense Reimbursement from Parent pursuant to this Section 9.3, such payment shall be the sole and exclusive remedy of the Company against Parent and its Subsidiaries and their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives, and none of Parent, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or Representatives shall have any further Liability or obligation relating to or arising out of the Transaction Agreements or the Transactions, (ii) if the Company (or its designee) receives any Expense Reimbursement, and thereafter the Company (or its designee) is entitled to receive the Termination Fee under this Section 9.3, the amount of Parent's Expenses previously reimbursed such Termination Fee shall be reduced by Company pursuant hereto.
the aggregate amount of such Expense Reimbursement, and (iii) if Purchaser (or its designee) receives any Expense Reimbursement from the Sellers pursuant to this Section 9.3, such payment shall be the sole and exclusive remedy of Purchaser against the Sellers and their respective Subsidiaries and their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives, and none of the Sellers, any of their respective Subsidiaries or their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives shall have any further Liability or obligation relating to or arising out of the Transaction Agreements or the Transactions. The Company acknowledges parties acknowledge that the agreements contained in this Section 8.3.B. 9.3 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent the parties would not enter into this Agreement; accordinglythe Transaction Agreements, if the Company fails to pay in a timely manner the and that any amounts due payable pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes 9.3 do not constitute a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companypenalty.
Appears in 1 contract
Termination Fee. (a) The parties agree that if this Agreement is terminated pursuant to Section 7.1(d), then the Company shall reimburse the Parent for its actual and reasonable out-of-pocket expenses in an amount not to exceed $5,000,000 (five million dollars) (the “Expense Reimbursement”) within two (2) Business Days of such termination. For the avoidance of doubt, (i) In in no event shall the event that Company be required to pay the Expense Reimbursement on more than one (1) Parent occasion and (ii) in no event shall terminate the sum of the Expense Reimbursement and Termination Fee payable by the Company exceed $48,270,000.
(b) The parties agree that if this Agreement is terminated by Parent pursuant to Section 8.1.G. 7.1(e) or (2) this Agreement shall be terminated (x) by the Company pursuant to Section 8.1.B. 7.1(f), then the Company shall pay (or (ycause to be paid) pursuant to Section 8.1.D. andParent prior to or concurrently with such termination, in the case of either a termination by the Company, or within two (x2) Business Days thereafter, in the case of a termination by Parent, a termination fee equal to $48,270,000 (the “Termination Fee”).
(c) The parties agree that if this Agreement is terminated pursuant to Section 7.1(b), 7.1(d) or (y)7.1(g) and, in any such case, (a1) at or after the date hereof and prior to such terminationthe date of termination of this Agreement, there shall exist or have been proposed an Acquisition Proposal with respect to the Company is made to the Company or the Company Board, is made public by the Company or any other Person, or otherwise made generally known to the Company’s stockholders, and is not withdrawn and (b2) within nine twelve (912) months after such termination, the Company shall enter enters into a definitive agreement with respect to any Company Acquisition Proposal and such Acquisition Proposal is thereafter consummated (which need not be the same Acquisition Proposal that was made, disclosed or any Company Acquisition shall be consummated, then, in communicated prior to the case of (1termination hereof), promptly after such terminationthen the Company shall pay (or cause to be paid) the Termination Fee to Parent, prior to or in the case of (2), concurrently with the execution consummation of a definitive agreement with respect tosuch transaction, or less the consummation ofamount of any Expense Reimbursement previously paid pursuant to Section 7.3(a). For purposes of only subclause (2) of this Section 7.3(c), as applicablethe term “Acquisition Proposal” shall have the meaning assigned to such term in Section 8.4, such Company Acquisition, Company except that the references to “20%” shall pay be deemed to Parent an amount in cash equal be references to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee")“50%”.
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iiid) The Company acknowledges that the agreements agreement contained in this Section 8.3.B. are 7.3 is an integral part of this Agreement and that, without this Section 7.3, Merger Sub and Parent would not have entered into this Agreement. Accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 7.3, the Company shall pay to Merger Sub all reasonable fees, costs and expenses of enforcement (including reasonable attorneys’ fees as well as reasonable expenses incurred in connection with any action initiated by Parent and/or Merger Sub), together with interest on the amount of the Termination Fee at the prime lending rate as published in The Wall Street Journal, in effect on the date such payment is made.
(e) For the avoidance of doubt, in no event shall the Company be required to pay the Termination Fee on more than one (1) occasion.
(f) Subject to Parent’s and Merger Sub’s rights set forth in Section 8.14, Parent’s right to receive payment from the Company of the Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub against the Company, the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or affiliates (collectively, “Company Related Parties”) under circumstances requiring the payment thereof pursuant to this Section 7.3 for any loss suffered as a result of the failure of the transactions contemplated by this Agreement, including the Merger, to be consummated or for a breach or failure to perform hereunder or otherwise, and thatupon payment of such amount, without these agreements, Parent would not enter into this Agreement; accordingly, if none of the Company fails Related Parties shall have any further liability or obligation relating to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach or arising out of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than Agreement or the transactions contemplated by this Agreement): , including the Merger (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving except that the Company shall also be obligated with respect to Section 7.3(d) and except that the applicable Company Related Parties shall remain obligated for, and Parent and its affiliates may be entitled to remedies with respect to the provisions and agreements surviving such termination pursuant to which Section 7.2). For the shareholders avoidance of doubt, while Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 8.14 and the payment of the Company immediately preceding such transaction hold less than fifty percent (50%) Termination Fee under Section 7.3, under no circumstances shall Parent and Merger Sub be permitted or entitled to receive both a grant of specific performance and the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee.
Appears in 1 contract
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior As a condition of Acquiror and Merger Sub's willingness, and in order to such terminationinduce Acquiror and Merger Sub, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall to enter into a definitive agreement with respect this Agreement, the Company hereby agrees to any Company Acquisition or any Company Acquisition pay to Acquiror, and Acquiror shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution entitled to payment of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars fee of $27.5 million ($250,000.0027,500,000) (the "Termination Fee") (less any payment made pursuant to the proviso in Section 9.05) if (each of the following being a "Fee Payment Event") any of the following occur following the date hereof:
(1) this Agreement is terminated by either Acquiror or the Company pursuant to Section 8.01(e), and (A) after the date of this Agreement an Acquisition Proposal shall have been made or communicated to the Company or shall have been made directly to the stockholders of the Company generally (and at least one such Acquisition Proposal shall not have been withdrawn prior to the event giving rise to the right of termination under Section 8.01(e)) and (B) within twelve (12) months after such termination the Company shall have reached a definitive agreement to consummate, or shall have consummated, an Acquisition Transaction;
(2) this Agreement is terminated by either Acquiror or the Company pursuant to Section 8.01(d) and (A) between the date of this Agreement and the date of any such termination, an Acquisition Proposal shall have been made or communicated to the Company or shall have been made directly to the shareholders of the Company generally and (B) within twelve (12) months after such termination the Company shall have reached a definitive agreement to consummate, or shall have consummated, an Acquisition Transaction;
(3) this Agreement is terminated by Acquiror pursuant to Section 8.01(b) upon a breach or failure by the Company to comply with Section 6.06 and the Company's breach or failure triggering such termination shall have been willful;
(4) this Agreement is terminated by Acquiror pursuant to Section 8.01(c); or
(5) this Agreement is terminated by the Company pursuant to Section 8.01(g).
(iib) In the event that Parent shall terminate this Agreement pursuant Any payment required to be made under Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (98.03(a) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummatedpayable within two business days following the Fee Payment Event. In any case such payment shall be made, then concurrently with the execution of a definitive agreement with respect towithout setoff, or the consummation ofby wire transfer in immediately available funds, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount account specified by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretoAcquiror.
(iiic) The Company acknowledges and agrees that the agreements contained in this Section 8.3.B. 8.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent Acquiror would not enter into this Agreement; accordingly, if the Company fails promptly to pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.03, and, in order to obtain such payment, Parent makes Acquiror commences a claim suit that results in a judgment against the Company for the amounts payment set forth in this Section 8.3.B.8.03, the Company shall pay to Parent its reimburse Acquiror's costs and expenses (including reasonable attorneys' fees and expensesfees) incurred in connection with such suit, together with interest on the amounts set forth in any amount due pursuant to this Section 8.3.B. 8.03 from the date such amount becomes payable until the date of such payment at the highest prime rate of interest as reported by SunTrust Bank, N.A. published in The Wall Street Journal in effect on the date such payment was required to be made. Payment .
(d) The Company shall notify Acquiror promptly in writing of the fees described in this Section 8.3.B. occurrence of any Fee Payment Event, it being understood that the giving of such notice by the Company shall not be a condition to Acquiror's rights pursuant to this Section 8.03.
(e) Notwithstanding anything to the contrary in lieu of damages incurred this Agreement, the parties hereby acknowledge that in the event of breach of this Agreement. For that the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated Termination Fee becomes payable and is paid by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which this Section 8.03, the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the CompanyTermination Fee shall be Acquiror's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyand Merger Sub's sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Vib Corp)
Termination Fee. (ia) In the event that that:
(1i) Parent shall terminate (A) before obtaining the Company Stockholder Approval, this Agreement is terminated by Parent or the Company pursuant to Section 8.1.G. 7.1(b)(i) or (2) this Agreement shall be terminated (x) Section 7.1(b)(ii), or by Parent pursuant to Section 8.1.B. 7.2(c) as a result of a breach by the Company of any of its covenants or (y) pursuant to Section 8.1.D. and, agreements set forth in the case of either (x) or (y)this Agreement, (aB) at or any Person shall have made a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, there and such Acquisition Proposal shall exist or not have been proposed an Acquisition Proposal publicly withdrawn prior to such termination or, with respect to a termination pursuant to Section 7.1(b)(ii), prior to the Company Stockholders Meeting and (bC) within nine twelve (912) months after such terminationof the date this Agreement is terminated, the Company shall enter enters into a definitive agreement with respect to any Company an Acquisition Proposal or any Company an Acquisition shall Proposal is consummated (which, for the avoidance of doubt, need not be consummated, then, the same Acquisition Proposal described in the case of clause (1B), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation ofBoard of Directors shall have recommended to the Company’s stockholders an Acquisition Proposal (which, as applicablefor the avoidance of doubt, such Company Acquisition, Company shall pay to Parent an amount need not be the same Acquisition Proposal described in cash equal to Two Hundred Fifty Thousand and No/100 Dollars clause ($250,000.00B)) (provided that for purposes of clause (C), the "Termination Fee"references to “15%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”).
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and on the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months date of such termination of this Agreementrecommendation, Company shall enter into a definitive agreement with respect to any Company Acquisition consummation or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect tosuch agreement, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.whichever is earliest, the Company shall pay to Parent its costs and expenses the Termination Fee by wire transfer; or
(including attorneys' fees and expensesii) in connection with such suitthis Agreement is terminated by the Parent pursuant to Section 7.2(a) or Section 7.2(b), together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on then no later than three (3) Business Days after the date of such payment was required termination, the Company shall pay to be made. Payment of Parent the fees described in Termination Fee by wire transfer; or
(iii) this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated Agreement is terminated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business Section 7.3(a), then immediately prior to or substantially concurrently with such sale or (iii) termination the acquisition Company shall pay to Parent the Termination Fee by any person or group (including by way of a tender offer or an exchange offer or issuance by wire transfer; it being understood that in no event shall the Company), directly or indirectly, of beneficial ownership or a right Company be required to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of pay the voting power of the then outstanding shares of capital stock of the CompanyTermination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) The Company shall pay to Parent a fee of $65,000,000 (the “Fee”) if this Agreement is terminated as follows:
(i) In the event that if (1A) Parent either party shall terminate this Agreement pursuant to Section 8.1.G. or (28.1(c) this Agreement shall be terminated either (x) without the meeting of Company shareholders pursuant to Section 8.1.B. 6.3 having been convened or (y) pursuant with such meeting of Company shareholders having been convened but the Company Shareholder Approval not having been obtained and (B) a Company Alternative Proposal shall have been publicly announced or otherwise communicated to the senior management or the Board of Directors of the Company after the date hereof, and shall not have been irrevocably withdrawn prior to the date specified in Section 8.1.D. and8.1(c) (or, in the case of either clause (x) or (yA)(y), (a) at or prior to the date of such terminationmeeting of Company shareholders), there shall exist then if any Company Alternative Transaction is consummated, or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Alternative Transaction (a “Company Acquisition shall be consummatedAgreement”) is entered into, then, in within 12 months after the case date of (1), promptly after such termination, or in then the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").Fee on the date of such consummation or Company Acquisition Agreement execution, whichever first occurs;
(ii) In the event that Parent shall terminate if (A) this Agreement is terminated by either Parent or the Company pursuant to Section 8.1.F.8.1(f) and (B) a Company Alternative Proposal shall have been publicly announced or otherwise communicated to the senior management or the Board of Directors of the Company after the date hereof, and shall not have been irrevocably withdrawn prior to the date of such termination, then if any Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Alternative Transaction is consummated, or a Company Acquisition Agreement and the transactions contemplated hereby ("Parent's Expenses"), and ifis entered into, within nine (9) 12 months after the date of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummatedtermination, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay the Fee on the date of such consummation or Company Acquisition Agreement execution, whichever first occurs;
(iii) if (A) this Agreement is terminated by Parent pursuant to Parent an amount Section 8.1(d) as the result of a breach by the Company of its covenants or agreements set forth in cash equal this Agreement other than the covenants and agreements set forth in Section 6.3 or 6.11 and (B) a Company Alternative Proposal shall have been publicly announced or otherwise communicated after the date hereof to the amount senior management or the Board of Directors of the Company, and shall not have been irrevocably withdrawn prior to the occurrence of such breach, then if any Company Alternative Transaction is consummated, or a Company Acquisition Agreement is entered into, within 12 months after the date of such termination, then the Company shall pay the Fee on the date of such consummation or Company Acquisition Agreement execution, whichever first occurs; or
(iv) if this Agreement is terminated by which Parent pursuant to Section 8.1(e), then the Termination Company shall pay the Fee exceeds within one business day after a demand for payment following the amount of Parent's Expenses previously reimbursed by Company pursuant heretotermination.
(iiib) The Company acknowledges that the agreements contained in this Section 8.3.B. 8.4 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay in a timely manner the amounts amount due pursuant to this Section 8.3.B. 8.4(a), and, in order to obtain such payment, Parent makes commences a claim that suit which results in a judgment against the Company for the amounts Fee set forth in this Section 8.3.B.8.4, the Company shall pay to Parent its reasonable out-of-pocket costs and expenses (including reasonable attorneys' ’ fees and expenses) in connection with such suit; provided that, together if such suit does not result in a judgment against the Company for the Fee, then Parent shall pay to the Company its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with interest on such suit. In no event shall an amount greater than the amounts set forth in Fee be payable pursuant to this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required 8.4. The Company acknowledges that it is obligated to be made. Payment of the fees described in pay any amounts due pursuant to this Section 8.3.B. shall 8.4 whether or not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companyhave approved this Agreement.
Appears in 1 contract
Termination Fee. Section 5.7(g) of the Agreement is hereby deleted and replaced in its entirety to read as follows: “The Debtors shall pay a fee in an amount equal to $11,000,000 (“Termination Fee”) (which amount is inclusive of all expenses, except for expenses of $250,000 that were authorized and will be reimbursed pursuant to the Expense Reimbursement Order) to Purchaser in the event that the Debtors (i) In accept a Bid, other than that of Purchaser, as the highest and best offer, (ii) sell, transfer, lease or otherwise dispose directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction (by any Debtor or otherwise), all or substantially all or a material portion of the Acquired Assets (or agree to do any of the foregoing) in a transaction or series of transactions to a party or parties other than Purchaser within one year from the date hereof, or (iii) choose not to sell, transfer, lease or otherwise dispose of, directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction (by any Debtor or otherwise), all or substantially all or a material portion of the Acquired Assets (or agree to do any of the foregoing) to Purchaser whether as a result of the proposal of a stand-alone plan of reorganization or otherwise (either of clause (i), (ii) or (iii), an “Alternative Transaction”); provided however, that in no event that shall the Termination Fee be payable to Purchaser (1) Parent shall terminate if Purchaser terminates this Agreement pursuant to Section 8.1.G. 7.1(a)(vi), the proviso to Section 7.l(a)(viii)(3), Section 7.1(a)(ix) or Section 7.1(a)(x); (2) if this Agreement shall be is terminated (x) by the Debtors pursuant to Section 8.1.B. or 7.l(a)(iii)(A); (y3) if this Agreement is terminated pursuant to Section 8.1.D. and, 7.1(a)(i); (4) if on the last day of the month that all of the conditions set forth in the case Section 6.2 of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to (with such date replacing the terms “Closing” and “Closing Date” in Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination 6.2 of this Agreement, Company shall enter into a definitive agreement with respect ) have been satisfied or waived without the Closing having occurred Purchaser fails to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with consummate the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions transaction contemplated by this Agreement; or (5) if this Agreement is terminated by Purchaser pursuant to Section 7.1(a)(v)(A) solely because of the filing of a motion to convert the Debtors’ cases under Chapter 7. Moreover, in the event that the Debtors accept a Bid, other than that of Purchaser, as the highest and thatbest offer, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company but that Alternative Transaction fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs close and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment Purchaser ultimately acquires all or substantially all of the fees described in this Section 8.3.B. assets of the Debtors, Purchaser shall not be in lieu entitled to the Termination Fee, and any Termination Fee paid to Purchaser will be returned to the Debtors. The obligations of damages incurred the Debtors to pay the Termination Fee shall be entitled to administrative expense status under Section 503(b)(1) in the event of breach Bankruptcy Case and shall become due and payable upon the termination of this Agreement. For Agreement as provided for hereunder and the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the CompanyBidding Procedures Order.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Vanguard Car Rental Group Inc.)
Termination Fee. (ia) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) If this Agreement shall be terminated terminated:
(i) by the Company pursuant to Section 9.1(c)(iv), then, substantially concurrently with, and as a condition to such termination, the Company shall cause the third party that made the applicable Company Superior Proposal (or its designee) to pay the Acquiror, subject to applicable Law and Section 9.2(c), a non-refundable fee in an amount equal to $6,348,267.00, which is equal to 3.0% of the net asset value of the Company as of September 30, 2023 (the “Company Termination Fee”); or
(ii) (A) by (x) the Acquiror or the Company pursuant to Section 8.1.B. Sections 9.1(b)(ii) or 9.1(b)(iii) or (y) the Acquiror pursuant to Section 8.1.D. and, in 9.1(d)(i) (solely to the case of either (x) extent that the Company has committed a willful or (yintentional breach), (aB) at or a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, there shall exist has not been withdrawn (1) with respect to any termination pursuant to Sections 9.1(b)(ii) or have been proposed an Acquisition Proposal 9.1(d)(i), prior to the date of such termination and (b2) with respect to any termination pursuant to Section 9.1(b)(iii), prior to the time of the duly held Company Stockholders Meeting, and (C) the Company enters into a definitive Contract with respect to such Takeover Proposal within nine twelve (912) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period), then, within two (2) Business Days after the date that such Takeover Proposal is consummated, the Company shall enter into cause the third party that made such Takeover Proposal (or its designee) to pay the Acquiror, subject to applicable Law and Section 9.2(c), the Company Termination Fee; provided, that for purposes of this Section 9.2(a)(ii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%.” The Company Termination Fee shall be paid by wire transfer of immediately available funds to the Acquiror or, at the election of the Acquiror, to one of its Consolidated Subsidiaries, to an account designated in writing to the Company by the Acquiror if the Acquiror shall have furnished to the Company wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check.
(b) If this Agreement shall be terminated:
(i) by the Acquiror pursuant to Section 9.1(d)(iv), then, substantially concurrently with, and as a definitive agreement condition to such termination, the Acquiror shall cause the third party that made the applicable Acquiror Superior Proposal (or its designee) to pay the Company, subject to applicable Law and Section 9.2(c), a non-refundable fee in an amount equal to $29,905,339.00, which is equal to 3.0% of the net asset value of the Acquiror as of September 30, 2023 (the “Acquiror Termination Fee”); or
(ii) (A) by (x) the Acquiror or the Company pursuant to Sections 9.1(b)(ii) or 9.1(b)(iv) or (y) the Company pursuant to Section 9.1(c)(i) (solely to the extent that the Acquiror has committed a willful or intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn (1) with respect to any Company Acquisition termination pursuant to Sections 9.1(b)(ii) or 9.1(c)(i), prior to the date of such termination and (2) with respect to any Company Acquisition shall be consummatedtermination pursuant to Section 9.1(b)(iv), prior to the time of the duly held Acquiror Stockholders Meeting, and (C) the Acquiror enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period), then, within two (2) Business Days after the date that such Takeover Proposal is consummated, the Acquiror shall cause the third party that made such Takeover Proposal (or its designee) to pay the Company, subject to applicable Law and Section 9.2(c), the Acquiror Termination Fee; provided, that for purposes of this Section 9.2(b)(ii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%.” The Acquiror Termination Fee shall be paid by wire transfer of immediately available funds to the Company or, at the election of the Company, to one of its Consolidated Subsidiaries, to an account designated in writing to the Acquiror by the Company if the Company shall have furnished to the Acquiror wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check.
(c) Notwithstanding anything to the contrary in this Agreement, the Company Termination Fee or the Acquiror Termination Fee, as applicable, shall not be due and payable pursuant to this Section 9.2 if the SEC informs the Company or the Acquiror that the payment of such Company Termination Fee or Acquiror Termination Fee is prohibited under applicable Law, and the Company (in the case of an Acquiror Termination Fee) or the Acquiror (1), promptly after such termination, or in the case of (2), concurrently with a Company Termination Fee) is unable to obtain appropriate relief from the execution SEC to permit the payment of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee or Acquiror Termination Fee").
(iid) In Each of the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company parties hereto acknowledges that the agreements contained in this Section 8.3.B. 9.2 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, Parent the parties would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 1 contract
Sources: Merger Agreement (MidCap Financial Investment Corp)
Termination Fee. (a) In the event that:
(i) (A) an Acquisition Proposal shall have been made, proposed or communicated (and not withdrawn), after the date hereof and prior to the Shareholders’ Meeting (or prior to the termination of this Agreement if there has been no Shareholders’ Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii); and (C) within 12 months of the termination of this Agreement, any Acquisition Proposal by a third party is entered into, agreed to or consummated by the Company (in each case whether or not the Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)); or
(ii) this Agreement is terminated (A) by Parent pursuant to Section 8.1(c) or (B) by the Company pursuant to Section 8.1(d)(ii); then, the Company shall pay Parent or (if so directed) its designee a cash amount equal to US$1,000,000 (the “Termination Fee”) by wire transfer of same day funds; provided, however, that the Company shall not be required to pay to Parent or its designee the Termination Fee in the event that (x) this Agreement is terminated pursuant to Section 8.3(a)(ii)(A) and (y) the circumstances that permit Parent to terminate this Agreement to Section 8.3(a)(ii)(A) were the proximate result of actions or inactions taken by the Company at the direction of Mr. Hong without the approval or direction of the Independent Committee. The Company shall pay the Termination Fee within five Business Days following such termination, in the case of a termination referred to in clause (ii), or within five Business Days after the earlier of the date on which an agreement is entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (i); it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Except as otherwise set forth in Section 9.11, the parties hereby agree and acknowledge that Parent’s right to receive payment of the Termination Fee shall be the sole and exclusive remedy available to Parent with respect to this Agreement and the transactions contemplated hereby. In the event that Parent or its designee shall receive full payment of the Termination Fee pursuant to this Section 8.3(a), the receipt of the applicable Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its former, current or future Representatives, Affiliates or Company Related Parties arising out of or in connection with this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination; provided, however, that nothing in this Section 8.3(a) shall limit the rights of Parent and Merger Sub under Section 9.11.
(b) In the event that (1) Parent the Company shall terminate this Agreement pursuant to Sections 8.1(d)(i) and 8.1(d)(iii), then Parent shall pay, or cause to be paid, to the Company a cash amount equal to US$2,000,000 (the “Parent Termination Fee”) by wire transfer of same day funds, within five Business Days following such termination. Except as otherwise set forth in Section 8.1.G. or (2) this Agreement 9.11, the parties hereby agree and acknowledge that the Company’s right to receive payment of the Parent Termination Fee shall be terminated (x) pursuant the sole and exclusive remedy available to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Termination Fee").
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"hereby. In the event that the Company shall receive full payment of the Parent Termination Fee pursuant to this Section 8.3(b), the receipt of the Parent Termination Fee shall be deemed to be liquidated damages for any and if, within nine (9) months of such termination of all losses or damages suffered or incurred by the Company or any other Person in connection with this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition the Financing Documents, the transactions contemplated hereby and thereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and neither the Company Acquisition involving Company nor any other Person shall be consummatedentitled to bring or maintain any claim, then concurrently action or proceeding against Parent, Merger Sub or any of their respective former, current or future Representatives, Affiliates or any Buyer Group Parties arising out of or in connection with this Agreement, the execution Financing Documents, any of a definitive agreement with respect to, the transactions contemplated hereby or thereby (or the consummation ofabandonment or termination thereof) or any matters forming the basis for such termination; provided, as applicablehowever, such that nothing in this Section 8.3(b) shall limit the rights of the Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant heretounder Section 9.11.
(iiic) The Company acknowledges Each of the parties hereto acknowledge that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this AgreementMerger, and that, that without these agreements, Parent agreements the other parties would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay in a timely manner the amounts any amount due pursuant to this Section 8.3.B. 8.3, and, in order to obtain such the payment, Parent makes a claim that or the Company, as the case may be, commences an Action which results in a judgment against the other party, with respect to Parent or Merger Sub, or parties, with respect to the Company for the amounts payment set forth in this Section 8.3.B.8.3, the Company such paying party shall pay to Parent the other party or parties, as applicable, its reasonable and documented costs and expenses (including reasonable and documented attorneys' fees and expenses’ fees) in connection with such suitAction, together with interest on the amounts set forth in this Section 8.3.B. such amount at the prime rate of interest as reported by SunTrust Bank, N.A. published in the Wall Street Journal in effect on the date such payment was required to be made. Payment of made through the fees described in date such payment is actually received.
(d) The party desiring to terminate this Agreement pursuant to Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions 8.1 (other than Section 8.1(a)) shall give written notice of such termination to the transactions contemplated by this Agreement): (iother parties specifying the relevant provision(s) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders such termination is purportedly effected and including reasonable detail of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior circumstances giving rise to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companytermination.
Appears in 1 contract
Termination Fee. (ia) In the event that (1i) Parent an Acquisition Proposal shall terminate have been communicated to or otherwise made known to the shareholders, senior management or board of directors of Company, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal involving Company after the date of this Agreement, (ii) thereafter this Agreement is terminated (A) by Parent or Company pursuant to Section 8.1.G. 8.1(b) (if the Common Shareholder Approval has not theretofore been obtained) or (2B) this Agreement shall be terminated (x) by Parent pursuant to Section 8.1.B. or 8.1(e) and (yiii) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal and the date that is twelve (b) within nine (912) months after the date of such terminationtermination Company consummates an Alternative Transaction (for purposes of this Section 8.3, substituting in the definition of Alternative Transaction, forty percent (40%) in place of references to twenty percent (20%) and substituting sixty percent (60%) in place of references to eighty percent (80%)) or enters into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to an Alternative Transaction, then Company shall enter into a definitive agreement with respect to any Company Acquisition on the earlier of the date an Alternative Transaction is consummated or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, letter executed or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation ofentered into, as applicable, such Company Acquisition, Company shall pay to Parent an amount in cash a fee equal to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) 2,000,000 (the "“Termination Fee")”) by wire transfer of immediately available funds.
(iib) In the event that Parent shall terminate this Agreement is terminated (i) by Parent pursuant to Section 8.1.F.8.1(f), (ii) by (x) Parent pursuant to Section 8.1(g)(i) or (y) Parent or Company pursuant to Section 8.1(g)(iii) and (for the avoidance of doubt, unless in either case of clause (x) or clause (y), prior to the Company Shareholders Meeting or the Second Company Shareholders Meeting, as applicable, any of the events described in clauses (i) through (iv) of Section 8.1(f) shall have occurred) prior to the date that is twelve (12) months after the date of such Company Shareholders Meeting or Second Company Shareholders Meeting, as applicable, Company consummates an Alternative Transaction or enters into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to an Alternative Transaction, or (iii) by Parent or Company pursuant to Section 8.1(g)(ii), then Company shall promptly pay Parent the Termination Fee by wire transfer of immediately available funds on the date of termination.
(c) In event that the Termination Fee is payable under this Section 8.3, Company shall also reimburse Parent for Parent's costs and all of its out-of-pocket expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses")herein, including fees and expenses of accountants, financial advisors and attorneys, and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay costs and expenses otherwise allocated to Parent an amount in cash equal pursuant to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.Section 9.2. 55
(iiid) The Company acknowledges that the agreements contained in this Section 8.3.B. 8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay in a timely manner the amounts amount due pursuant to this Section 8.3.B. 8.3, and, in order to obtain such payment, Parent makes commences a claim that suit which results in a judgment against the Company for the amounts fee set forth in this Section 8.3.B.8.3, the Company shall pay to Parent its costs and expenses (including attorneys' ’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. amount of the fee at a rate per annum equal to the prime rate of interest as reported by SunTrust Bank, N.A. published in effect The Wall Street Journal on the date that such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companymade plus 300 basis points.
Appears in 1 contract
Termination Fee. (i) In the event that (1i) Parent shall terminate this Agreement is terminated by Parent or the Company pursuant to Section 8.1.G. 7.2(c) or by Parent pursuant to Section 7.3(a), and there does not exist a breach by the Company of any representation, warranty, covenant or other agreement contained in this Agreement which would give rise to a failure of a condition set forth in Section 6.1 or Section 6.2 or (2ii) this Agreement all of the conditions set forth in Section 6.1 and Section 6.2 (other than Section 6.2(g)) shall be terminated have been satisfied or waived; provided that with respect to Section 6.1(c), only the Consent Condition needs to have been satisfied or waived, or, with respect to the conditions set forth in Sections 6.2(f), 6.2(h) and 6.2(i), the Company shall have delivered an officers' certificate, duly executed by the Company's Chief Executive Officer and Chief Financial Officer, stating that the conditions to Closing (x) pursuant to Section 8.1.B. or set forth in Sections 6.2(a) through (e) have been satisfied as of the Outside Date and (y) pursuant to Section 8.1.D. and, set forth in the case of either (x) or (ySections 6.2(f), 6.2(h) and 6.2(i) are capable of being satisfied on the Outside Date (abut for the fact that the Closing was not actually occurring) at or prior and the condition set forth in Section 6.2(g) shall fail to such termination, there shall exist or have been proposed an Acquisition Proposal satisfied on or before the Outside Date and (b) within nine (9) months after such terminationthis Agreement has not previously been terminated in accordance with its terms, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company then Parent shall pay to Parent an amount in cash the Company a sum equal to Two Hundred Fifty Thousand and No/100 Dollars eleven million three hundred thousand dollars ($250,000.0011,300,000) (the "Termination Fee").
(ii) , which Termination Fee shall be the Company's sole remedy in respect of termination of this Agreement except in the case of any willful breach of this Agreement by Parent, Intermediate Parent or Merger Sub. In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which the Termination Fee exceeds shall be payable hereunder, such Termination Fee shall be paid in same day funds within three Business Days of the amount date of such termination. Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges , Intermediate Parent and Merger Sub agree that the agreements contained in this Section 8.3.B. are 7.6 is an integral part of the transactions contemplated by this Agreement. Accordingly, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if in the Company fails to pay in a timely manner event the amounts due pursuant to this Section 8.3.B. Termination Fee shall be payable hereunder and, in order to obtain payment of such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B.Termination Fee, the Company takes legal action against Parent, Intermediate Parent or Merger Sub, then Parent, Intermediate Parent or Merger Sub shall be jointly and severally obligated to pay to Parent the Company its reasonable costs and expenses (including attorneys' reasonable fees and expensesexpenses of legal counsel) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Companylegal action.
Appears in 1 contract
Termination Fee. (i) In the event that (1) Parent shall terminate this Agreement pursuant to Section 8.1.G. or (2) this Agreement shall be terminated (x) pursuant to Section 8.1.B. or (y) pursuant to Section 8.1.D. and, in the case of either (x) or (y), (a) at If and only if this Agreement has been terminated by the Company in accordance with Section 7.2(a) because of the failure of the condition set forth in Section 6.3(g) to be satisfied or prior waived in writing by Parent by the End Date (excluding for the purposes of this Section 7.5(a) any permanent financing intended to refinance such termination, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, Company shall enter into a definitive agreement with respect bridge debt referred to any Company Acquisition or any Company Acquisition shall be consummated, then, in the case definition of (1Financing as set forth in the Recitals), promptly after then within fifteen (15) days following such termination, termination Parent shall pay or in cause to be paid to the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation ofCompany, as applicableliquidated damages and not as a penalty, such Company Acquisition, Company shall pay to Parent an amount in cash equal to Two Five Hundred Fifty Thousand and No/100 Dollars ($250,000.00500,000) (the "“Termination Fee"”).
(ii) In the event that Parent shall terminate this Agreement pursuant to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"), and if, within nine (9) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company shall be consummated, then concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay to Parent an amount in cash equal to the amount by which . The parties have negotiated the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part to be a reasonable estimate of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred Company’s loss in the event of breach a termination of this AgreementAgreement due to a failure of the above-referenced condition. For The parties understand and agree that in no event shall Parent be required to pay the purposes of Termination Fee on more than one occasion.
(b) Notwithstanding anything to the contrary in this Agreement, "Company Acquisition" shall mean any of if the following transactions (other than Termination Fee is payable in accordance with Section 7.5(a), then the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value sole and exclusive remedy of the Company's business immediately prior , the Company Stockholders and any other Person (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Sub, their Affiliates, their Representatives, the assignees of any thereof and any other Person for any breach, loss or damage shall be to terminate this Agreement and receive payment of the Termination Fee only to the extent provided by Section 7.5(a), and none of Parent, Merger Sub, their Affiliates, their Representatives, any such sale assignees or (iii) the acquisition by any person other Person will have any liability or group (including by way of a tender offer or an exchange offer or issuance by obligation to the Company, the Company Stockholders or any other Person relating to or arising out of this Agreement or in respect of any other document or theory of law or equity or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, except for any such Person’s Fraud in arranging the Financing or breach of Section 5.2 regarding Confidential Information. The Financing Sources (and such Financing Source’s Affiliates, equityholders, members, partners, officers, directors, employees, agents, advisors and Representatives) are express third party beneficiaries of this Section 7.5(b), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 1 contract
Sources: Merger Agreement (Cinedigm Corp.)
Termination Fee. (ia) In the event that (1) If Parent shall terminate this Agreement pursuant to Section 8.1.G. or 7.1(c)(i) hereof; or
(2b) If the Board of Directors of Parent shall approve a Superior Transaction; or
(c) If Parent shall distribute to its shareholders the Proxy Statement and if the Board of Directors of Parent shall:
(i) fail to include in the Proxy Statement the Board's recommendation of the Merger to the shareholders of Parent or
(ii) at any time withdraw its recommendation of the Merger; or
(d) If:
(i) all the conditions set forth in sections 6.1 and 6.3 hereof to the obligation of Parent to close the transactions contemplated hereby shall have been satisfied in all material respects prior to the Final Date, and
(ii) the Company shall have terminated this Agreement shall be terminated Agreement:
(xA) pursuant to Section 8.1.B. or section 7.1(d)(ii) hereof or
(yB) pursuant to Section 8.1.D. andsection 7.1(b)(ii) hereof and not pursuant to section 7.1(f) hereof and by the Final Date any of the following conditions to the obligation of the Company to close the transactions contemplated hereby shall not have been satisfied or waived: sections 6.2(d), 6.2(e)(i) (but only if the conditions to the obligations of the Purchasers under the Stock Purchase Agreement that were not so satisfied or waived included any of the conditions set forth in sections 4.1(b) (except to the extent of any covenant, agreement or condition to the effect that the representations and warranties in the case Preferred Stock Agreement must be true as of either the Closing Date under the Stock Purchase Agreement), 4.1(f), 4.1(h), 4.1(i), 4.1(m), 4.1(n), 4.1(o) (xbut only if the Company has not terminated this Agreement pursuant to section 7.1(f) hereof), 4.1(p) or (y4.1(r) of the Stock Purchase Agreement), 6.2(e)(ii) (abut only if the conditions to the obligations of the Purchasers under the Subordinated Debt Agreement that were not so satisfied or waived included any of the conditions set forth in sections 5.1(b) (except to the extent of any covenant, agreement or condition to the effect that the representations and warranties in the Subordinated Debt Agreement must be true as of the Closing Date under the Subordinated Debt Agreement), 5.1(f), 5.1(h), 5.1(i), 5.1(o), 5.1(p), 5.1(q), 5.1(s) or 5.1(t) of the Subordinated Debt Agreement), 6.2(h), 6.2(i), 6.2(m), 6.2(n) and 6.2(o) hereof, or
(e) If Parent shall have held a meeting of its shareholders at or prior which Parent's shareholders were given the opportunity to vote to approve the transactions contemplated hereby and/or by the Stock Purchase Agreement and Subordinated Debt Agreement and such terminationtransactions were not approved by the requisite shareholder vote or
(f) If the Nasdaq Stock Market shall not have waived its requirement that Parent obtain a stockholder vote approving the transactions contemplated hereby and by the Stock Purchase Agreement and Subordinated Debt Agreement, there shall exist or have been proposed an Acquisition Proposal and (b) within nine (9) months after such termination, the Company shall enter into a definitive agreement with respect have terminated this Agreement pursuant to any section 7.1(b)(ii) hereof and not pursuant to section 7.1(f) hereof and by the Final Date the shareholders of the Company Acquisition or any Company Acquisition shall be consummatednot have approved the transactions contemplated hereby and by the Stock Purchase Agreement and Subordinated Debt Agreement by the requisite shareholder vote, then, in the case of (1), promptly after such termination, or in the case of (2), concurrently with the execution of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, Company then Parent shall pay to Parent the Company an amount in cash equal to Two Hundred Fifty Thousand and No/100 Dollars (the sum of $250,000.00) 943,247 (the "Termination Fee").
(ii) In on the event that Parent shall terminate this Agreement pursuant earliest to Section 8.1.F., then Company shall promptly reimburse Parent for Parent's costs and expenses occur of the events described in connection with this Agreement and the transactions contemplated hereby ("Parent's Expenses"sections 7.3(a), and if(b), within nine (9c), (d), (e) months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Company Acquisition or any Company Acquisition involving Company (f) which amount shall be consummated, then concurrently with the execution payable by wire transfer of a definitive agreement with respect to, or the consummation of, as applicable, such Company Acquisition, then Company shall pay same day funds to Parent an amount in cash equal to the amount by which the Termination Fee exceeds the amount of Parent's Expenses previously reimbursed by Company pursuant hereto.
(iii) The Company acknowledges that the agreements contained in this Section 8.3.B. are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3.B. and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 8.3.B., the Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3.B. at the prime rate of interest as reported by SunTrust Bank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3.B. shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance account designated by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of the Company.
Appears in 1 contract
Sources: Merger Agreement (Sheldahl Inc)